Madras High Court

The Branch Manager vs Selvi on 6 October, 2023

                                                C.M.A(MD)Nos.130 of 2022 and 611 of 2023

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED : 06.10.2023

                                                   CORAM

                             THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

                                        C.M.A.(MD)Nos.130 of 2022
                                                   and
                                        C.M.P(MD)No.1322 of 2022
                                                   and
                                         C.M.A(MD)No.611 of 2023

                    C.M.A(MD)No.130 of 2022:


                    The Branch Manager,
                    M/s.National Insurance Company Limited,
                    Branch Office, 1st Floor,
                    No.1631-1/9, Salem Bhavani Main Road,
                    Sankagiri.                              ... Appellant/2nd respondent

Vs.

1.Selvi

2.Minor.Sowmia

3.Minor.Harini

4.Chinnu

5.Pitchaiammal

(Minor respondents 2 & 3 are represented though their mother and next friend, the 1st respondent , Selvi)

... 1st to 5th respondents/Petitioners

6.N.Ramalingam ... 6th respondent/1st respondent

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, fair and decreetal order in M.C.O.P.No.24 of 2016 dated 19.04.2021 on the file of the Motor Accident Claims Tribunal, Special District Court, Tiruchirappalli.

                                             For Appellant              :Mr.J.S.Murali
                                             For R-1 to R-5             :Mr.N.Sudhagar Nagaraj



                    C.M.A(MD)No.611 of 2023:

                    1.Selvi
                    2.Minor.Sowmia
                    3.Minor.Harini
                    4.Chinnu
                    5.Pitchaiammal

                    (Respondents 2 and 3 represented by
                    their mother and natural guardian
                    Selvi 1st respondent)                            ... Appellants/Petitioners

                                                                 Vs.

                    1.N.Ramalingam

                    2.The Branch Manager,

M/s.The National Insurance Company Ltd., Branch Office, 1st Floor, No.1631-19, Salem Bhavani Main Road, Sangagiri. ... Respondents/Respondents

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

For Appellants :Mr.N.Sudhakar Nagaraj For R-1 :No Appearance For R-2 :Mr.J.S.Murali

COMMON JUDGMENT

These Civil Miscellaneous Appeals are filed challenging the

award of the Motor Accident Claims Tribunal, Special District Court,

Tiruchirappalli made in M.C.O.P.No.24 of 2016, dated 19.04.2021.

2. C.M.A(MD)No.130 of 2022 is filed by the Insurance

Company challenging the quantum of compensation awarded by the

Tribunal and the liability fixed on the Insurance Company.

3. C.M.A(MD)No.611 of 2023 is filed by the claimants seeking

enhancement of compensation.

4. The claimants filed the claim petition stating that on

29.05.2010 at about 10.45 p.m., when the deceased Senthil Kumar,

was walking on Salem-Trichy main road, Ahok Leyland lorry bearing

Registration No.TN 27 B 5229, which came behind the deceased in a

rash and negligent manner, hit the deceased. As a result,

Senthil Kumar died on the spot. The first claimant is the wife of Senthil

Kumar, claimants 2 and 3 are his children and the claimants 4 and 5

are his parents.

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

5. It is stated in the claim petition that the deceased was

working as a Driver and was earning a sum of Rs.500/- per day and his

monthly income was Rs.15,000/- per month. Due to sudden demise of

the deceased, it is claimed that the claimants are left with no-one to

take care of them and they find it very difficult to make both the ends

meet. In the said circumstances, they filed the claim petition claiming

total compensation of Rs.15,00,000/-.

6. The Insurance Company filed a counter affidavit stating

that the deceased was also equally responsible for the accident. It was

claimed that the driver of the vehicle had no driving licence.

7. During the course of enquiry, on the side of the claimants

P.Ws.1 and 2 were examined and Exs.P1 to P11 were marked. There

was no oral or documentary evidence produced on the side of the

Insurance Company.

8. The Insurance Company challenges the award of the

Tribunal on the ground that the accident happened due to the sudden

cross of the deceased and therefore, certain percentage of the award

amount should be deducted for contributory negligence on the part of

the deceased. He further submitted that the quantum of compensation

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

awarded is on higher side and that the Tribunal committed error in

holding that the Insurance Company is not entitled to deduct Tax on

the compensation amount. It is against the provisions of the Income

Tax Act, 1961. As per Income Tax Act, the Insurance Company is

entitled to deduct TDS for the interest portion payable for the

compensation amount. On these grounds, the learned counsel for the

Insurance Company, challenges the award.

9. On the other hand, the learned counsel for the claimants

submitted that the deceased is a Heavy Vehicle Driver and in support of

this claim, his driving licence was produced as Ex.P5. The deceased

was earning a sum of Rs.500/- per day and totally a sum of

Rs.15,000/- per month. However, the Tribunal has taken a sum of

Rs.6,000/- as monthly income. This is too low. He submitted that as

per the judgments of this Court in Andal and others vs. Avinav

Kannan and others reported in 2019 (1) TN MAC 54(DB), this Court

adopted the Cost of Inflation Index during the period of accident as the

basis for arriving at the monthly income of the deceased. As per this

index, monthly income of the deceased would come to Rs.8,415/-. With

this amount 40% of this amount should be added towards future

prospects and thus, the monthly income of the deceased would have to

be fixed at Rs.11,780/-(Rs.8415 + 3366). However, the Tribunal had

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

wrongly fixed the monthly income of the deceased at Rs.8,400/- and

that resulted in reduction of amount towards loss of dependency. Thus,

he prayed for enhancement of compensation on the basis of the

monthly income of the deceased at Rs.11,780/-.

10. This Court considered the rival submissions and perused

the records.

11. It is not is dispute that the deceased met with an road

accident on 29.05.2010 and died on the spot. Though it is submitted

by the learned counsel for the Insurance Company that the deceased

had invited the accident by suddenly crossing the road, it appears that

no evidence whatsoever was produced to sustain this claim before the

Tribunal.

12. In the absence of any evidence to show that the deceased

had suddenly crossed the road and had contributed to the accident, it

cannot be decided that the deceased had contributed to the accident

and certain percentage should be deducted from the compensation

amount. Thus, the submission of the learned counsel for the Insurance

Company in this regard is rejected.

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

13. With regard to the claim of the claimants for enhancement

of compensation, reading of the award of the Tribunal shows that the

Tribunal has come to the conclusion that the deceased would have

earned Rs.200/- per day and calculated the monthly income of the

deceased as Rs.6,000/-. Monthly income of the deceased was fixed

approximately taking into consideration the occupation of the deceased.

It is seen that the claimants had not produced the salary certificate or

any other records to show the monthly income of the deceased.

14. As already stated, the learned counsel for the claimants

produced the judgment of this Court in Andal's case (cited supra) for

the proposition that the Cost of Inflation Index is to be considered for

fixing the monthly income of the deceased.

15. The Hon'ble Supreme Court of India in the case of Syed

Sadiq vs. United India Insurance Company Limited reported in

2014 (1) TN MAC 459(SC), in the case of Vegetable Vendor fixed the

monthly income at Rs.6,500/- during the year 2007-2008. Taking this

as a base income, with the use of Cost of Inflation Index, income the

deceased was arrived in the case of Andal's case(cited supra).

If this formula is adopted in this case, the notional income of the

deceased is to be fixed at Rs.6,500/-, with the Cost of Inflation Index for

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

the year 2010-2011, the income of the deceased comes to Rs.8,414.72/-

(rounded off to Rs.8415/-). The details of calculation is as follows:

The Notional income fixed by the Cost of Inflation index for the Hon'ble Supreme Court of India X year 2010-2011 for the vegetable vendor ie., Rs.6,500 during the year 2007-2008

______________________________________________________________________

Cost of Inflation index for the year 2007-2008

Therefore, income of the deceased is Rs.6,500 X 167

-------------------- = Rs.8,414.72

16. As per this calculation, the monthly income of the

deceased comes to Rs.8,415/-. It is not in dispute that the deceased

was aged 31 years at the time of the accident. Therefore, 40% of this a

amount is to be added as future aspects. In that case, 40% of the

amount would be Rs.3,366/-. Then, the total monthly income comes

to Rs.11,781/- (Rs.8415 + Rs.3,366). As per the decision in Smt.Sarla

Verma .vs. Delhi Transport Corporation reported in 2009(2) TN

MAC 1(SC), 1/4th amount has to be deducted towards personal

expenditure of the deceased and that comes to Rs.8,836/-(Rs.11,781 –

Rs.2,945) and then, the annual income would be

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

Rs.1,06,032/-(Rs.8836 X 12). The multiplier to be adopted is “16” and

thus, the total loss of dependency comes to Rs.16,96,512/-.

17. The learned counsel for the Insurance Company

submitted that the claimants restricted the claim of compensation only

Rs.15,00,000/- and therefore, the compensation in excess of the claim

petition cannot be awarded.

18. At this juncture, the learned counsel for the claimants

produced the judgment in Meena Devi vs. Nunu Chand Mahto @

Nemchand Mahto & others reported in 2022(2) TN MAC 605(SC),

for the proposition that there is no restriction that the Tribunal/Court

cannot award compensation exceeding the amount claimed. It is

pertinent to refer to the relevant portion of the said judgment which

reads as follows:

“14.At this stage, it is necessary to clarify that as per the decision of a Three-Judge Bench of this Court in Nagappa v. Gurdayal Singh and others, 2003(2) SCC 274, it was observed that under the MV Act, there is no restriction that the Tribunal/Court cannot award compensation exceeding the amount so claimed. The Tribunal/Court ought to award 'just' compensation which is

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

reasonable in the facts relying upon the evidence produce on record. Therefore, less valuation, if any, made in the Claim Petition would not be impediment to award Just Compensation exceeding the claimed amount.”

19. This Court on going through the oral and documentary

evidence and also relying on the judgement in Andal's case(cited

supra), has arrived at the just and fair compensation and therefore, the

contention of the learned counsel for the Insurance Company that this

Court cannot award more award than the amount claimed in the claim

petition, cannot be accepted.

20. Coming to the last submission of the learned counsel for

the Insurance Company that the Tribunal has given a direction to the

Insurance Company not to deduct income tax on source, this Court

finds that from the award of the Tribunal, the Tribunal has given this

direction on the basis of the judgment of this Court in Managing

Director, Tamil Nadu State Transport Corporation Limited.,

v. Chinnadurai reported in 2016(2) TN MAC 71.

https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.130 of 2022 and 611 of 2023

21. It is now informed that the issue with regard to deduction

of income tax on the interest payable on the award amount is pending

before the Hon'ble Division Bench of this Court.

22. In the said circumstances, this Court is of the view that

the direction issued by the Tribunal cannot be faulted. However, the

claimants are not entitled for interest during the default period and for

the delay in paying the balance Court fee.

23. In view of the discussions held above, this Court modifies

the compensation awarded by the Tribunal, as under:

S.No Description Amount awarded Amount awarded Award confirmed or by Tribunal by this Court enhanced or (Rs) (Rs) granted

1. For loss of 12,09,600 16,96,512 enhanced dependancy

2. For Transportation 7,000 7,000 confirmed

3. For loss of 35,000 35,000 confirmed consortium to 1st claimant/wife

4. For loss of 70,000 70,000 confirmed consortium to 2 & 3 claimants(Rs.

                                  35,000/- each)
                    5.            For loss of                    70,000             70,000 confirmed
                                  consortium 4 and 5
                                  (each Rs.35,000/-)
                    6.            For Funeral                    10,000             10,000 confirmed
                                  Expenses
                    7.            For loss of estate             10,000             10,000 confirmed
                                  Total                     Rs.14,11,600      Rs.18,98,512 By enhancing a
                                                                                           sum of
                                                                                           Rs.4,86,912





https://www.mhc.tn.gov.in/judis

C.M.A(MD)Nos.130 of 2022 and 611 of 2023

24. In the result,

(i) C.M.A(MD)No.130 of 2022, is dismissed. No Costs.

(ii) C.M.A(MD)No.611 of 2023 is partly allowed enhancing the

award of the Motor Accident Claims Tribunal, Special District Court,

Tiruchirappalli in M.C.O.P.No.24 of 2016, dated 19.04.2021,

from Rs.14,11,600/- (Rupees Fourteen Lakhs Eleven Thousand and

Six Hundred Only) to a sum of Rs.18,98,512/-(Rupees Eighteen Lakhs

Ninety Eight Thousand Five Hundred and Twelve Only) along with

interest at the rate of 7.5% per annum from the date of petition till date

of realisation and proportionate costs.

(ii) The apportionment made by the Tribunal is sustained.