Royal Sundaram Alliance v. P.Ramesh Kumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.04.2018 CORAM :

THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN and THE HONOURABLE MR.JUSTICE R.PONGIAPPAN C.M.A.No.1803 of 2017 and C.M.P.Nos.9618 and 20106 of 2017 Royal Sundaram Alliance Insurance Company Limited, 4-A, 4th Floor, Thirumalai Towers, No.723, Avanashi Road, Coimbatore - 641 018.

...Appellant/3rd Respondent Vs 1.P.Ramesh Kumar 2.R.Abhijay (Minor) (2nd respondent minor represented by father and next friend P.Ramesh Kumar)

...Respondent 1 & 2/

Petitioners 3.D.Sabarigirivasan 4.R.Dharmalingam ... Respondents 3& 4/ Respondents 1& 2 PRAYER :Civil Miscellaneous Appeal filed against the judgment and decree passed in M.C.O.P.No.195 of 2013 dated 12.09.2016 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Pollachi.

For Appellant : Mr.N.Vijayaragavan for M/s.M.B.Gopalan Associates For Respondents: Mr.D.R.Arunkumar (for R1 and R2) Mr.Camyles Gandhi (for R3 and R4)

J U D G M E N T

(Judgment of the Court was delivered by N.KIRUBAKARAN, J ) The appeal has been filed by the insurance company against the compensation of Rs.30,87,000/- awarded for the death of the 1st respondent's wife and the 2nd respondent's mother by name A.Anupriya, aged about 26 years, working as Assistant ProfessorComputer Application in Sree Ramu College of Arts and Science, Vedasenthur, allegedly earning about Rs.25,000/- per month, in the accident occurred on 03.08.2013, when the deceased, riding a TVS-50 moped from Chettipalayam to Kolarpatti along with her mother and minor son, was dashed down by one Mahindra Bolero vehicle belonging to the 3rd respondent and driven by the 4th respondent in a rash and negligent manner.

2.Heard Mr.N.Vijayaragavan, learned counsel for the appellant and Mr.D.R.Arun Kumar learned counsel appearing for the respondents 1 and 2/claimants.

3.A perusal of th records would show that the accident had occurred, when the deceased, who was driving the two wheeler along with her mother and son, stopped her vehicle reaching the main road. At that time, the vehicle belonging to the 3rd respondent driven by the 4th respondent, in a rash and negligent manner, knocked down the two-wheeler driven by the deceased, resulting in her death. The Tribunal based on the evidence of PW2 eyewitness, who gave Ex.P.1 FIR and charge sheet Ex.P.2 and sketch Ex.P.3, rightly came to the conclusion that the accident occurred because of the rash and negligent driving of the Bolero vehicle. Moreover, there is no rebuttal evidence on the side of the appellant rebutting what has been stated by PW1 as well as PW2. The evidence of PW1 is fortified by Ex.P.3 rough sketch, which shows the place of accident.

Therefore, the finding reached by the Tribunal that the driver of the Bolero vehicle alone is responsible for the accident is confirmed. 4.As far as quantum is concerned, it is proved before the Tribunal that the deceased was working as an Assistant Professor by Ex.P.11, employment certificate; Ex.P.12, salary certificate; Ex.P.13, salary slip; Ex.P.14 and Ex.P.15, certificates of educational qualifications. The evidence of PW3, who is the representative from the college, in which the 1st respondent's wife worked and the salary certificate would prove that the deceased was earning about Rs.15,000/- per month. Therefore, the said amount fixed by the Tribunal as monthly income of the deceased is confirmed.

5.As far as awarding of 50% towards future prospects is concerned, the Tribunal took 50% towards future prospects as per the judgment in Rajesh Vs. Ranbir Singh reported in 2013(9) SCC 54 and the same has been further authoritatively declared by the Supreme Court in the Constitution Bench judgment in National Insurance Company Limited V. Pranay Sethi and others, reported in 2017 (2) TN MAC 609 (SC). Therefore, adding of 50% towards future prospects is confirmed, as the deceased was aged about 26 years at the time of the accident. After adding 50% towards future prospects the monthly income comes to Rs.22,500/- (Rs.15,000/- + 50% of Rs.15,000/-) 6.As per the judgment of the Honourable Supreme Court in Sarala Verma & Others .Vs.

Delhi Transport Corporation & another, reported in 2009 (2) TNMAC 1 (SC), the appropriate multiplier "17" has been rightly adopted by the Tribunal and 1/3rd has been deducted towards personal expenses of the deceased. After deducting 1/3rd towards personal expenses, the monthly income comes to Rs.15,000/- (Rs.22,500/- - 1/3rd of Rs.

Total Loss of Income =15000 x 12 x 17 = Rs.30,60,000/-.

7.As per the judgment of the Constitution Bench of the Honourable Apex Court in National Insurance Company Limited V. Pranay Sethi and others, reported in 2017 (2) TN MAC 609 (SC), Rs.1,00,000/- awarded by the Tribunal towards loss of consortium is reduced to Rs.40,000/-; Rs.1,00,000/- and Rs.2,00,000/- awarded by the Tribunal towards loss of love and affection to the respondents 1 and 2 is reduced to Rs.40,000/-; Rs.25,000/- awarded by the Tribunal towards funeral expenses is reduced to Rs.15,000/-; Rs.15,000/- awarded by the Tribunal towards transport expenses is reduced to Rs.10,000/-. No amount was awarded towards loss of estate, hence a sum of Rs.15,000/- is awarded towards loss of estate.

8.Hence, the total compensation to be awarded in this case is Rs.31,80,000/-.

Head Amount (Rs.) Total loss of income 3060000 Loss of consortium 40000 Loss of estate 15000 Funeral expenses 15000 Transport expenses 10000 Loss of love and affection 40000 3180000

9.The rate of interest awarded by the Tribunal at 7.5 % per annum remains unaltered. Though the Insurance Company has filed the appeal, the facts and circumstances enable this Court to enhance the compensation. Accordingly, award of the Tribunal (i.e.,) Rs.30,87,000/- is enhanced to Rs.31,80,000/- invoking Order 41 Rule 33 of CPC, and Section 151 and Article 227 of Constitution of India. The provisions of the Motor Vehicles Act are beneficial in nature and what is required to be awarded is just and reasonable compensation. Therefore, even in the absence of appeal/cross-appeal by the claimants, this Court has got power and jurisdiction to enhance the compensation, which has been recognised by the Honourable Supreme court in Nagappa V. Gurdayal Singh reported in 2004 (2) TN MAC 398 (SC). 10.The respondents 1 and 2 are directed to pay the additional court fee within a period of one week from the date of receipt of a copy of this order.

11.Since the appellant/Insurance Company has deposited the entire amount, as per the award of the Tribunal, they are directed to deposit the balance amount, as per the modified award passed by this Court, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the 1st respondent is permitted to withdraw his share of the compensation, as per the apportionment of the Tribunal. As far as 2nd respondent/minor's share is concerned, the same shall be deposited in interest bearing Fixed Deposit in any one of the Nationalised Banks, till he attains majority. The 1st respondent is permitted to withdraw interest accruing on such deposit once in three months.

12.With the above directions, this Appeal is disposed of. Consequently connected miscellaneous petitions are closed. No costs.

Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrar sai To The Presiding Officer Motor Accidents Claims Tribunal, Subordinate Court, Pollachi.

+1 cc to M/s.M.B.Gopalan Associates sr 25718 +1 cc to Mr.M.N.Balakrishnan Advocate sr 25313 C.M.A.No.1803 of 2017 sj(co) aa08/06/2018