M/S. Bajaj Allianz General v. K.M. Ayyasamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.03.2016
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR and THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN C.M.A.No.551 of 2016 and C.M.P.No.4589 of 2016 M/s. Bajaj Allianz General Insurance Company Limited D.No.11, People's Park, 3rd floor Government Arts College Road Coimbatore.
... Appellant/ 2nd Respondent vs.
1. Sri. K.M. Ayyasamy
2. Smt. Sangeetha
...Respondents 1 & 2 /
Petitioners 1 and 2
3. K.A. Divakar ...3rd Respondent/ 1st Respondent Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the common Judgment and Decree dated 17.08.2015 made in M.C.O.P. No. 150 of 2013 (connected with MCOP Nos. 666 of 2012, 151 and 152 of 2013) on the file of the Motor Accidents Claims Tribunal, (IV Additional District and Sessions Judge), Coimbatore.
For Appellant : Mr. Srinivasan Ramalingam For Respondents/ Caveators : Mr.C. Veeraraghavan for R1 and R2
JUDGMENT
(Judgment of the Court was delivered by R.SUDHAKAR,J.) This Civil Miscellaneous Appeal has been preferred by the Insurance Company, challenging the common Judgment and Decree dated 17.08.2015 made in M.C.O.P. Nos. 666 of 2012 and 150, 151 and 152 of 2013, on the file of the Motor Accidents Claims Tribunal, (IV Additional District and Sessions Judge),
Coimbatore, whereby, the Tribunal has awarded a compensation of Rs.33,68,000/-, together with interest at 9% p.a. from the date of the petition till such deposit is made.
2. This is a case of fatal accident. On 07.08.2011, at about 9 a.m., the car bearing Registration No.TN 37 AR 7434, driven by one Smt.Meenakshi, on the portico of her house, instead of moving to the front, mistakenly reversed, whereby she lost control and the car fell into a 200 ft. deep well, nearby. In that accident, the co-passengers, Mr.Sivarajan and Mrs. Vasanthi died, Minor D. Adish Indrajith and Minor D. Pawnjith sustained grievous injuries. The husband and the daughter of the deceased Vasanthi, aged about 51 years has filed the claim petition for a compensation of Rs.75,00,000/-.
3. In support of the claim, the wife of the deceased Sivarajan was examined as P.W.1, Mr. K.M. Ayyasamy, husband of the deceased Vasanthi was examined as P.W.2 said to be an eye witness, one Mr. S.Jayaprakash was examined as P.W.3 and the Dr. Gajendran, as PW.4. Exs.P-1 to Ex.P.48 were marked, the details of which are as follows:- Ex.No.
Details P1 Certified copy of F.I.R P2 Certified copy of charge sheet P3 Certified copy of rough sketch P4 Certified copy of MVI report P5 Certified copy of Referred Charge sheet P6 Certified copy of Post Mortem certificate P7 Original death certificate of Sivarajan P8 Original Legal Heir Certificate of Sivarajan P9 Original Driving Licence of Sivarajan P10 Xerox copy of Learner's licence of Meenakshi P11 Xerox copy of family card of Sivarajan P12 Xerox copy of Transfer certificate of Jayamalini P13 Xerox copy of Birth certificate of Kishore P14 Salary certificate of Sivarajan P15 Xerox copy of Death certificate of Vasanthamani P16 Letter of alteration of name in postmortem certificate P17 Original death certificate of Vasanthi P18 Original legal heir certificate of Vasanthi
Ex.No.
Details P19 Xerox copy of passport copy of Vasanthi P20 Xerox copy of Certificate of registration P21 Income tax return copy P22 Income tax return copy P23 Income tax return copy P24 Income tax return copy P25 Income tax return copy P26 Discharge summary of Baby Indrajith P27 Inpatient receipt of Indrajith P28 Medical Bills P29 Discharge summary of Baby Pawanjith P30 CT Scan of Brain P31 CT Scan of Abdomen P32 Ultra sound scan P33 Inpatient receipt of Pawnjith P34 Medical Bills P35 Original Death Certificate of Meenakshi P36 Day book of Subramania Gowder Jewellery P37 Day book of Subramania Gowder Jewellery P38 Day book of Subramania Gowder Jewellery P39 Day book of Subramania Gowder Jewellery P40 Day book of Subramania Gowder Jewellery P41 Statement of Account in the name of Subramaniam Ayyasamy P42 Statement of Account in the name of Vasanthi P43 Notice of Commissioner P44 Letter from Commercial Tax office P45 Disability Certificate of Indrajith P46 X-ray of Indrajith P47 Disability Certificate of Pawnjith P48 X-ray of Pawnjith On behalf of the Insurance Company, no witness was examined and no document was marked on their side before the Tribunal.
4. The Tribunal based on the oral evidence of the witnesses, the F.I.R. and also taking note of the fact that the deceased
Meenakshi, who drove the car was possessing Learner's license to drive the car but accompanied with a professional driver, deceased Sivarajan, who was holding a valid license, came to the conclusion that the driver of the car was responsible for the accident and consequently liability was fixed on the Insurance Company. On this issue, learned counsel for the appellant has no serious objection with regard to the finding of the Tribunal as no material has been placed to come to a different conclusion from that of the conclusion arrived at by the Tribunal.
5. Based on the oral and documentary evidence, the Tribunal granted the following amounts as compensation with interest at 9% per annum:- Sl.
No Head Amount granted by the Tribunal Loss of Income Rs. 21,12,000/- Loss of future prospects Rs. 10,56,000/- Loss of consortium to the 1st petitioner Rs. 50,000/- Loss of Love & affection to the 1st petitioner Rs. 50,000/- Loss of Love & affection to the 2nd petitioner Rs. 50,000/- Loss of Estate Rs. 25,000/- Transportation and Funeral expenses Rs. 25,000/- Total Rs. 33,68,000/-
6. The income of the deceased at Rs.24,000/- per month, fixed by the Tribunal based on the Ex.21 to 25, is not seriously disputed. However, the compensation granted under the heading 'loss of future prospects' is seriously objected by the appellant Insurance company and the same is justified stating that since the deceased was of age 51 years at the time of accident, the 'future prospects' should be only 15% as per the Judgment of the Hon'ble Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Others reported in 2013 (2) TN MAC 55 (SC).
Further, the Tribunal ought to have noted that deceased was only doing business and that income from any business has its elements of uncertainties and when the deceased was not in a stable and permanent job with assured periodical increase in income, addition of income on the score of future prospects ought not to have been granted. Learned counsel also pleaded that the compensation awarded on the other heads is also excessive and particularly the rate of interest at 9%, is very high. Hence, this appeal has been filed seeking for reduction of compensation.
7.
On the other hand, the learned counsel for the respondents/claimants submitted that though the deceased was
running a jewellery shop, earning a sum of Rs.65,000/- and was an income tax assessee for more than 10 years, and that her income was gradually increasing every year and hence the income of the deceased was fixed at Rs.24,000/-. Further, the Tribunal as per the Apex Court guidelines, adopting 11 multiplier, has granted total compensation of Rs.33,68,000/, which includes compensation under conventional heads, with 9% interest. Considering that the first claimant, at his old age has lost his wife, the Tribunal has granted compensation under the heads of loss of consortium, loss of love and affection and other heads, which is fair and reasonable.
8. Heard learned counsel for both sides and also perused the material available on records.
9. We find that there is no serious dispute on the income of the deceased fixed as Rs.24,000/- per month and the consequential determination of loss of income of Rs.21,12,000/- . The only point that has been raised for consideration is the compensation granted under the heading "future prospects", which is also justified based on the judgment of the Hon'ble Supreme Court, stated supra. Therefore, the deceased being a lady of 51 years, the amount under the heading "future prospects" is reduced to Rs.3,16,800/-. As rightly pointed out by the learned counsel for the appellant/ Insurance Company, compensation cannot be granted twice, separately, under the heading "loss of consortium" and "loss of love and affection" to the first claimant/ husband. Therefore, a sum of Rs.
50,000/- is granted to the first claimant/ husband towards loss of consortium alone and Rs.50,000/- to the 2nd claimant/ daughter towards loss of love and affection. Moreover, the sum of Rs.50,000/- granted towards "loss of estate" and "transport and funeral expenses" is very excessive and hence we are inclined to grant Rs.20,000/- under the said heading.
10. Considering the prevailing rate of bank interest, this court feels that the rate of interest of 9% could be reduced to 7.5% per annum.
11. Accordingly, the compensation awarded by the Tribunal stands modified as follows:
Sl.
No Head Amount granted by the Tribunal Amount granted by this Court Loss of Income Rs. 21,12,000/- Rs.
21,12,000/- Loss of future prospects Rs. 10,56,000/- Rs.
3,16,800/- Loss of consortium to the 1st petitioner Rs.
50,000/- Rs.
50,000/-
Sl.
No Head Amount granted by the Tribunal Amount granted by this Court Loss of Love & affection to the 1st petitioner Rs.
50,000/- -- Loss of Love & affection to the 2nd petitioner Rs.
50,000/- Rs.
50,000/- Loss of Estate Rs.
25,000/- -- Transportation and Funeral expenses Rs.
25,000/- Rs. 20,000/- Total Rs.33,68,000/- Rs.25,48,800/-
12. Accordingly, the Civil Miscellaneous Appeal is partly allowed as follows:- (i) The award of the Tribunal is reduced to Rs.25,48,800/- from Rs.33,68,000/-.
(ii) The interest granted by the Tribunal is also reduced from 9% to 7.5% per annum .
(iii) The appellant Insurance company is directed to deposit the modified award amount, less the amount already deposited, to the credit of M.C.O.P No.150 of 2013 on the file of the Motor Accidents Claims Tribunal, IV Additional District and Sessions Judge, Coimbatore, within a period of eight weeks weeks from the date of receipt of a copy of this order.
(v) On such deposit, the respondents/ claimants are permitted to withdraw their respective shares, as apportioned by the Tribunal, on filing necessary application before the Tribunal.
(vi) Consequently, the connected Miscellaneous Petition is closed. There will be no order as to costs in this appeal.
Sd/- Asst.Registrar /true copy/ Sub Asst. Registrar avr
To The IV Additional District and Sessions Judge, (The Motor Accidents Claims Tribunal ) Coimbatore.
1 cc to Mr.C. Veeraraghavan, Advocate, Sr. 17804 1 cc to Mr. Srinivasan Ramalingam, Advocarte, sr. 17743 C.M.A.No.551 of 2016 and C.M.P.No.4588 of 2016 MDM (CO) kk 29/4