Madras High Court

S. Sekar vs M. Arun on 24 November, 2023

                                                                                         C.M.A. No. 929 of 2021


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                           DATED : 24.11.2023

                                                                CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                       C.M.A. No. 929 of 2021
                     1.           S. Sekar
                     2.           S. Divya
                     3.           Minor S. Natarajan                     ... Appellants / Petitioners

                                                                   Vs.

                     1.           M. Arun

                     2.           Oriental Insurance Company Limited,
                                  Oriental House, 2nd Floor,
                                  Old No.115, New No.216,
                                  Prakasam Road,
                                  Broadway,
                                  Chennai - 600 108.                 ... Respondents / Respondents


                                  Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and decree dated 30.09.2019
                     passed in M.A.C.T.O.P. No.572 of 2017 on the file of the II Special Sub
                     Judge, Motor Accidents Claims Tribunal, Special Sub Court-II, Motor
                     Vehicles Claims Petitions Small Causes, Chennai.

                                  For Appellants       :       M/s. A. Subadra
                                  For R1               :       No Appearance
                                  For R2               :       Mr. G. Anandhan
                                                               JUDGMENT

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This Civil Miscellaneous appeal has been filed by the claimants

seeking enhancement of compensation awarded in M.A.C.T.O.P. No.572 of

2017, dated 30.09.2019 on the file of the II Special Sub Judge, Motor

Accidents Claims Tribunal, Special Sub Court -II, Motor Vehicles Claims

Petitions Small Causes, Chennai.

2. For the sake of convenience, the parties are referred herein

according to their litigative status and rank before the Tribunal.

3. On 23.12.2016 at about 20:30 Hours, the deceased

Bhuvaneswari was crossing pedestrian cross at Tambaram - Chengalpattu

G.S.T. Road, near Shaba Apartments, Guduvancherry, Kanchipuram

District, at that time, a motor cycle bearing Registration No.TN-13-F-1685

ridden by its rider in rash and negligent manner, hit on the deceased

Bhuvaneswari thereby causing sever head injury and multiple injuries all

over her body and she was taken to hospital, and she succumbed to injuries

on 24.12.2016. A criminal case was also registered against the rider of the

two wheeler in Cr.1097 of 2016 on the file of the Inspector of Police, H-2,

Guduvanchery Police Station. For the loss of the deceased Bhuvaneshwari,

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the claimants who are the husband, daughter and minor son have come

forward with this claim petition seeking enhancement of compensation for a

sum of Rs.1,00,00,000/- along with interest under section 166 of Motor

Vehicles Act.

4. The first respondent is the owner of the motor cycle bearing

Registration No.TN-13-F-1685 has not contested the claim and remained ex-

parte. The second respondent - insurance company has filed a counter and

denied all the allegation made in the claim petition and contended the

accident was happened only due to the negligence on the part of the

deceased, who has crossed the road without noticing the traffic. The

insurance company also disputed the age, income, occupation of the

deceased, also the dependency of the claimants and also contended that the

compensation claimed under various heads are on the higher side, prays to

dismiss the claim petition.

5. Before the Tribunal, on the side of the claimants, P.W.1 to

P.W.2 were examined and Exs.P.1 to P.15 were marked. On the side of the

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respondent, no witnesses were examined and Ex.R.1 - Accident Register

copy was marked.

6. Based on the evidence placed on record, the Tribunal in point

nos.1 and 2, has held that the rash and negligence act on the part of the rider

of the two wheeler bearing Registration No.TN-13-F-1685 is responsible for

the accident and also held that the second respondent - insurance company is

liable to pay the compensation to the claimants.. In point no.3, the Tribunal

has quantified and granted compensation for a sum of Rs.32,50,005/- along

with interest @ 7.5% per annum from the date of filing of petition till the

date of realization.

7. Aggrieved over the quantum of compensation, the claimants

have forward with this appeal seeking enhancement of compensation.

8. The learned counsel appearing for the claimants has

submitted that even though, the Tribunal has accepted the avocation and

income of the deceased but has not granted the compensation under the head

loss of income based on the salary slip instead the Tribunal has fixed

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Rs.20,000/- as the notional monthly income of the deceased, which is not

permissible, hence, prays to modify the monthly notional income of the

deceased as per the salary drawn by the deceased.

9. The learned counsel for the second respondent - insurance

company has submitted that the Tribunal has not taken into consideration

regarding the reduction of income tax, since the income falls within the

income tax limit, hence, prays to deduct the income tax from the salary of

the deceased and also contended that the compensation awarded under the

head love and affection is on the higher side, hence prays to modify the

same.

10. Heard the submissions made on both sides and perused the

materials placed on record:

11. The Tribunal based on the evidence placed on record, oral

evidence, salary slip, appointment order has accepted the case of the

claimants that the deceased was working in a private concern. However, the

Tribunal has restricted the salary of the deceased to the extent of Rs.20,000/-

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without granting the income based on the salary mentioned in the pay slip.

This Court is of the view that the salary received by the deceased under

various head are to be taken as income of the deceased but there is no proper

reason given by the Tribunal regarding the restriction of the salary of the

deceased to Rs.20,000/-, which is not permissible.

12. The Ex.P.7 - salary slip of the deceased, shows that there are

certain deductions such as G.P.F., Professional tax of Rs.156/- and on

deducting the above deductions, the income of the deceased comes to

Rs.24,357/-. The Hon'ble Apex Court judgment in Shyamwati Sharma &

Ors. Vs. Karam Singh & Ors. reported in [2010 (12) SCC 378], has

categorically held that the voluntary contributions made by the deceased for

his future welfare shall not be deducted from the gross salary. Hence, this

Court is of the view that the professional tax of Rs.156/- and the income tax

arrived for the relevant period shall alone be deducted from the gross salary.

(a). Total Taxable Income:

Total Annual Income (24,357/- X 12) = Rs.2,92,284/-

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Professional Tax for the year 2016-2017 i.e., (Rs.156/- x 12) = Rs.1,872/-

Total taxable income (2,92,284 - 1,872) = Rs.2,90,412/-

(b). Tax Calculation for Assessment Year (2016-2017):

                     Total taxable income                             = Rs.2,90,412/-
                     Tax slab (tax upto Rs.2,50,000/-)                = Nil
                     Taxable amount                                   = Rs.40,412/-
                     Surcharge                                        = Rs.2,021/-
                     Educational cess (2%)                            = Rs.40/-
                     Higher Educational cess (1%)                     = Rs.20/-
                     Total tax amount (2,021+40+20)                   = Rs.2,081/-
                     Total Annual income of the deceased
                     after deduction of tax (2,90,412 - 2,081)        = Rs.2,88,331/-

13. The Tribunal has followed the dictum as laid down in National

Insurance Co. Ltd., vs. Pranay Sethi and other reported in [2017 (2) TN

MAC 609 (SC) : 2017 (16) SCC 680] and fixed 25% as future prospectus

but on perusal of the Ex.P.7 - salary slip, shows that the date of birth of the

deceased is 10.01.1976 and the date of accident is 23.12.2016, thereby the

age of the deceased is more than forty years and it is also the fact that the

deceased has a permanent income, hence, her future prospectus is modified

as 30%.

14. The Tribunal as per the Hon'ble Apex Court judgment in Sarla

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Verma and others Vs. Delhi Transport Corporation and others reported in

[2009 ACJ 1298 SC : 2009 (6) SCC 121], fixed the multiplier as '15' by

considering the age of the deceased at the time of the accident, hence this

Court finds no infirmity in the above multiplier adopted by the Tribunal and

confirms the same. Since, the claimants are three in number, after deducting

one-third of her monthly income towards her personal and living expenses,

the compensation under loss of dependency with modified annual income

Rs.2,88,331/-is assessed as follows:

Annual income after deducting tax = Rs.2,88,331/-

                     Future prospects @ 30%                                = Rs.86,500/-
                     Total Amount                                          = Rs.3,74,831/-
                     Yearly contribution to his family (deducting 1/3)     = Rs.2,49,887/-
                     Applicable Multiplier                                 = 15
                     Total compensation (Rs.2,49,887/- x 15)               = Rs.37,48,305/-

15. The Tribunal has awarded Rs.1,50,000/- towards loss of love

and affection and also granted loss of consortium of Rs.40,000 to each of the

claimants. The Hon'ble Apex Court judgment in Magma General

Insurance Co. Ltd., vs Nanu Ram reported in 2018 ACJ 2018, has held that

compensation awarded under the head loss of consortium includes the loss of

love and affection, hence both could not be granted, accordingly, this Court

inclined to reject the compensation awarded under the head loss of love and

affection and confirms the compensation granted under the head loss of

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parental consortium and spouse consortium. Whereas the compensation

under conventional heads are concerned, the Tribunal has granted a just

compensation and this Court is inclined to confirm the same.

16. Accordingly, the award passed by the Tribunal under various

heads are hereby modified as follows:

                         S.              Description        Amount           Amount           Award
                         No                                awarded by      awarded by       confirmed
                                                            Tribunal        this Court     or enhanced
                                                              (Rs)             (Rs)         or reduced
                        1.        Loss of dependency         29,50,005/-     37,48,305/-    Enhanced
                        2.        Spouse consortium             40,000/-       40,000/-    Confirmed
                        3.        Loss of estate                15,000/-       15,000/-    Confirmed
                        4.        Funeral Expenses              15,000/-       15,000/-    Confirmed
                        5.        Loss of love and            1,50,000/-       ---          Rejected
                                  affection
                        6.        Parental consortium           80,000/-       80,000/-    Confirmed
                                  Total Compensation         32,50,005/-     38,98,305/-    Enhanced

17. In the result, this Civil Miscellaneous Appeal is partly

allowed and the compensation awarded by the Tribunal at Rs.32,50,005/- is

hereby enhanced to Rs.38,98,305/- [Rupees Thirty Eight Lakh Ninety

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Eight Thousand Three Hundred and Five only] together along with

interest at the rate of 7.5% per annum from the date of filing of Claim

Petition till the date of deposit, excluding the default period, if any. The

second respondent - Insurance Company is directed to deposit the amount

awarded by this Court along with interest and costs, less the amount already

deposited, if any, within a period of six weeks from the date of receipt of a

copy of this judgment to the credit of M.A.C.T.O.P.No.572 of 2017 on the

file of the II Special Sub Judge, Motor Accidents Claims Tribunal, Motor

Vehicles Claims Petitions Small Causes, Chennai. On such deposit, the

appellants/ claimants are permitted to withdraw the award amount now

determined by this Court along with interest and costs, less the amount if

any, already withdrawn as per the apportionment fixed by the Tribunal. In

other aspects, the Order of the Tribunal shall stand confirmed. The Tribunal

shall disburse the amount now awarded by this Court by directly giving

credit to the Savings Bank Account of the claimants. Since this Court has

enhanced the compensation, the appellants/claimants are directed to pay the

necessary Court fee, if any, on the enhanced compensation. There shall be

no order as to costs in the present appeal.