Madras High Court
The Manager vs Minor.Sivanesh on 29 October, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
CMA(MD)No.24 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.10.2024
CORAM :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
and
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CMA(MD)No.24 of 2019
and
C.M.P.(MD).No.357 of 2019
The Manager,
Iffco-Tokio Insurance Company Limited,
Iffco-Tokio Bhavan,
4th Floor, Hibibullah Road,
T.Nagar, Chennai-17. ... Appellant
vs.
1.Minor.Sivanesh
(represented through his guardian Durai Murugan
S/O.Karunanithi,
Thondarampattu West,
Thirumangalakottai Melacolony,
Oorthanadu Taluk,
Tanjore District.
2.Kamalraj ... Respondents
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act,
1988, to set aside the judgment and decree dated 07.09.2018 passed in
M.C.O.P.No.07 of 2017 on the file of the Motor Accidents Claims
Tribunal/Special Subordinate Judge, Tanjore.
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Page No.1 of 15
CMA(MD)No.24 of 2019
For Appellant : Mr.V.Sakthivel
For Respondents : Mr.N.Tamil Mani (for R1)
No appearance (for R2)
JUDGMENT
(Order of the Court was made by K.K.RAMAKRISHNAN, J.)
The insurance company have filed this appeal challenging the
award passed in M.C.O.P.No. 7 of 2017 on the file of the Motor Accident
Claims Tribunal / Special Subordinate Judge, Tanjore.
2. The appellant insurance company insured the vehicle lorry
bearing registration No.KA-02-D-2165. When the deceased
Duraimurugan was driving his car bearing registration No.TN-48-
TMP-6272 in the Dharmapuri - Palacode Main Road, Near Pulikkarai,
Nakkalapatti branch road, the said lorry dashed against the car and as
result of the rash and negligent driving of the lorry driver, the deceased
sustained severe injuries and he died. The jurisdictional police officer
registered the case against the lorry driver and final report also was filed
against him. The claimant is his minor child the only surviving member
and his wife predeceased the deceased and the minor child was in
custody of his maternal uncle and he has filed the claim petition before
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the Motor Accident Claims Tribunal / Special Subordinate Judge, Tanjore
and claimed the compensation of Rs.40,00,000/- with interest of 12%.
The claimant specifically pleaded that the deceased was working as a
manager in the Himayala traders and earned Rs.50,000/- as a monthly
salary.
3. The insurance company filed the counter denying the manner of
the accident and disputed the income of the deceased. The insurance
company specifically pleaded that the 1st respondent was the owner of the
insured vehicle. He had issued the cheque to renew the policy. The said
cheque was dishonoured and hence the contract was cancelled and the
said cancellation was duly intimated to the insurer and the regional
transport office. Therefore, the insurance company is not liable to pay the
compensation and seek to dismiss the petition as against the company.
4. To prove the case, on the side of the claimant PW1 to PW3 were
examined Ex.P1 to P20 marked. On the side of the respondent, RW1 to
RW2 were examined and Ex.R1 to Ex.R10 were marked.
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5. The learned tribunal judge did not accept the contention of the
insurance company and awarded the compensation of Rs.34,03,300/- by
impugned award dated 07.09.2018, which reads as follows:
Sl. Heads Award Amount Remarks
No. in (Rs)
1 (A) Income of the deceased 26,000/-
2 Add-Future Prospects (B) 6,500/- 25% added as
age of 46
3 Less personal expenses of 1/3=Rs.10,833 Since number
the deceased (c) of dependents
is 1
4 Monthly Loss of 21,667/-
dependency (A+B)-C =D
5 Annual Loss of 2,59,483/- Upto Rs.
Dependency (D X 12) 2,50,000 No
Tax above
2,50,001-
2,60,004 5%
Tax is Rs.521
6 Multiplier (E) 13 Age is 46
7 Total Loss of dependency 2,59,483 X 13 =
(D X 12 X E =F) Rs.33,73,279/-
8 Medical Expenses (G) NIL
9 Compensation for loss of NIL His wife
consortium (H) already died
10 Compensation of loss of 15,000/-
estate (I)
11 Compensation towards 15,000/-
Funeral Expenses (J)
Total Compensation 34,03,279/-
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Aggrieved over the same, the insurance company have filed this appeal
only on the ground of liability and the quantum and there is no dispute
relating to the negligence.
6.1. Mr.V.Sakthivel the learned counsel for the appellant/insurance
company would submit that the learned tribunal judge has committed
error in not accepting the case of the insurance company that the contract
between the insurer and the company was terminated on account of the
dishonour of cheque issued towards the payment of premium to renew
the insurance policy and erroneously passed award against the insurance
company even without direction of pay and recovery. To substantiate the
said plea, he relied the judgment of the Hon’ble Supreme Court reported
in the case of United India Insurance Co Ltd., Vs Laxmamma and
others reported in 2012 (1) TNMAC 481 SC.
6.2. Mr.V.Sakthivel the learned counsel for the appellant/insurance
company would submit that the documents marked to prove the
employment and the monthly salary of the deceased are not genuine one
and on the basis of the said documents the learned tribunal judge has
erroneously fixed the monthly salary as Rs.26,000/- and hence he seeks
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to fix the notional income. To substantiate the said plea he also brings the
fact that the claimant is only a minor son and he seeks to reduce the
compensation suitably.
7.1. Thiru.Tamilmani, learned counsel for the claimant vehemently
countered the said argument of the learned counsel for the insurance
company and would submit that the learned tribunal judge considering
the discrepancy in the cheque number correctly has held that the
insurance company has not proved the case of dishonour of cheque.
Therefore he seeks to confirm the award.
7.2. The learned counsel would further submit that on the basis of
the undisputed documents Ex.P19, P20, P17, P16 and the evidence of
PW3, the monthly income of the deceased was correctly fixed as
Rs.26,000/- per month. Hence according to the counsel, the same needs
no interference.
8. This Court considered the rival submissions made by the learned
counsel appearing on either side and perused the materials available
record and also the precedents relied by them.
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9. Discussion on Negligence :-
Since the insurance have not disputed the negligence on the part of
the lorry driver, this court is not inclined to interfere with the finding of
the learned tribunal judge fixing the negligence on the part of the driver
of the 1st respondent. Even otherwise, FIR was registered against the
driver of the lorry. PW2 independent witness cogently deposed about the
negligence of the driver of the lorry and there was no contra evidence
adduced and hence this court has no reason to interfere with the said
finding of the negligence and hence this court confirms the finding of the
learned tribunal judge that accident happened due to the negligence of
the driver of the 1st respondent.
10. Discussion on the Dishonour of cheque and the liability:-
10.1. The learned counsel for insurance company would submit
that the insurer took policy. The vehicle involved in the accident on
08.11.2016 is bearing Reg.No.KA-02-D2165. The said lorry was
originally insured with appellant insurance company for the period from
02.01.2016 to 01.06.2017 and the owner insurer had remitted the cheque
No. 984876 dated 02.06.2016 towards premium for renewal of policy.
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The said cheque was dishonoured on 16.06.2016. Hence the contract was
immediately cancelled and the same was informed through registered
post with acknowledgment card to the insurer with correct address and
also intimated to the Regional Transport Office. The insurance company
produced sufficient material to prove the dishonour of cheque by
examining the bank official and marking the cheque (Ex.R8) dishonour
return memo (Ex.R3) and the corresponding bank pass book (Ex.R7)
cheque return register Ex.R9. The insurance company, following the
dishonour of the cheque, duly cancelled the insurance policy and
intimated to the insurer and regional transport officer and to prove the
same RW1 manager of the insurance company was examined and he
deposed about cancellation of policy and sending the intimation to the
insurer and RTO through documents Ex.R2, R4 and R5.
10.2. The Learned Tribunal Judge without considering the above
unimpeachable evidence has held that the insurance company failed to
prove the dishonour of cheque resulting in cancellation of policy. In the
considerable view of this court the inadvertant mistake of wrong
mentioning of cheque number in the proceeding can not be used against
insurance company i.e., instead of 984876, it is mentioned as 984872)
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when the documentary evidence was produced to substantiate the
issuance of cheque bearing number 984876, the learned tribunal Judge
ought to have accepted the case of the insurance company relating to the
dishonour cheque and the resultant cancellation of policy and intimation
to the insured. Therefore, this court inclines to accept the argument of the
learned counsel for the insurance company that the policy was duly
cancelled upon dishonour of cheque issued to renew the policy and the
submission of the learned counsel for the insurance company to modify
the award into the pay and recovery considering the death of the third
party is accepted on the basis of the principle laid down in the Hon’ble
Supreme Court in the case of United India Insurance Co Ltd., Vs
Laxmamma and others reported in 2012 (1) TNMAC 481 SC. Hence
the award of the learned tribunal judge directing the insurance company
to pay compensation is modified with direction to the insurance company
to pay the compensation and recover the same from the insurer.
11.Discussion of quantum :-
11.1. The learned counsel for insurance company would submit
that the claimant has not proved the occupation of the deceased as a
manager in the Himayala Traders and Export company and they relied
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unbelievable and unacceptable documents and hence he prayed to fix the
reasonable notional income and determine compensation. This court
considered the said submission upon perusal of the various documents
and evidence. According to the claimant, he is the only son of the
deceased and his mother predeceased his father and there is no other
relation for him. Therefore the claimant/minor son was in the custody of
the PW1 who is none other than close relative of the deceased. PW1
deposed that the deceased worked as manager in Himayala Exports and
earned Rs.50,000/- as a monthly salary. To prove the same, on behalf of
the claimant Ex.P17 (salary certificate) and identification card under
Ex.P16 were marked. This court perused the same. Upon perusal of the
Ex.P17 and the Ex. P16, this court has every reason to disbelieve the said
document. Firstly in the Ex.P16, it is stated that deceased was working in
“Pazhamudhir Nilayam” from 2001 onwards. On the contrary, in the
salary certificate marked under Ex.P17 it is stated that he was working
from 2014 till the date of the accident. Apart from that under Ex.P19 it is
clear that the Himayala Export obtained license only in the month of
March 2003. Therefore, the case of the deceased, he worked from 2001
onwards is not believable one. Apart from that the said Ex.P17 is without
any legal particulars to accept as a salary certificate.
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11.2. From the perusal of the above said contents and documents
this court can easily come to the conclusion that the same was produced
in order to claim compensation. This court also perused the bank
statement of the deceased. In the said bank statement there is no
corresponding remittance of salary of Rs.26,000/- per month. Even
though PW2 was examined to prove the salary, he has not produced any
document to show his occupation as a manager of the said Himayala
Exports. Therefore, the contention of the learned counsel for the
insurance company that the existence of the Himayala Exports and the
deceased's employment as a manager in the said export and the receipt of
the salary of Rs.26,000/- are doubtful and deserves to be accepted. Hence
this court perused the bank statement of the deceased and in this bank
statement, there was a periodical transaction of Rs.15,000/- per month.
The accident happened on 08.11.2016 and the claimant is only minor son
and therefore this court inclines to fix the notional monthly income of the
deceased as Rs.15,000/-. The deceased's age at the time of the accident
was 46 and hence 25% for future prospects is ordered 15000 x 25/100 =
Rs.3750/- and the total monthly income comes around Rs.18750/- and
the claimant is only a minor son and this Court inclines to deduct ½
expenditure for personal expenditure of the deceased and adopt the
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multiplier of 13 and calculates the loss of income as follows :-
18750/- x ½ x 13 x 12 = Rs. 14,62,500/-
11.3. The claimant also is entitled Rs.15,000/- under the head of
loss of estate, Rs.40,000/- under the head of love and affection and
Rs.15,000/- under the head of funeral expenses and the total
compensation comes around Rs.15,32,500/-.
11.4. Therefore, this court upon the determination of the
compensation on the basis of the appreciation of the evidence is inclined
to reduce the compensation from Rs.34,03,300/- to Rs. 15,32,500/-.
Amount Re-quantified
Heads awarded by the Amount by this Status
Tribunal Court
For Loss of dependency 33,73,279/- 14,62,500/- reduced
For Loss of Estate 15,000/- 15,000/- confirmed
For Loss of Love and ----- 40,000/- awarded
Affection
For funeral expenses 15,000/- 15,000/- confirmed
Total 34,03,279/- 15,32,500/- Reduced
12. Accordingly, this C.M.A.(MD).No. 24 of 2019 is partly
allowed in the following terms:-
12.1.The direction of the learned trial judge in M.C.O.P.No. 7 of
2017 against the insurance company to pay the award amount is modified
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as follows :-
12.2. The insurance company is directed to pay the compensation
of Rs.14,62,500/- with interest of 7.5% and recover the same from the
insurer of the vehicle namely the 2nd respondent herein as per law.
12.3. The claimant is minor and the amount was already deposited
before the Indian Bank, Madurai Bench of Madras High Court, Madurai,
and the claimant is permitted to withdraw the amount on his attaining
majority. The legal guardian namely Thiru. Duraimurugan is entitled to
withdraw the interest every six months and has liberty to seek permission
before the tribunal court to withdraw the necessary amount to meet out
any legal necessity like education etc.
13. The insurance company has liberty to withdraw the remaining
amount after satisfying the above award amount if any.
14. The connected miscellaneous petition is closed. There shall be
no order as to costs.
(P.V.J.,) (K.K.R.K.J.,)
Index : Yes / No 29.10.2024
Neutral Citation : Yes / No
vsg
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To
1.The Special Subordinate Judge,
Motor Accidents Claims Tribunal,
Tanjore.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
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P.VELMURUGAN, J.
and
K.K.RAMAKRISHNAN, J.
vsg
and
DATED :29.10.2024
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