The Branch Manager,The Oriental Insurance Company, v. Anuradha,W/O. Baskar,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.09.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR and THE HONOURABLE MRS. JUSTICE N.MALA and Cross Obj.Nos.20 and 21 of 2018 C.M.A.No.1604 of 2017 The Branch Manager, The Oriental Insurance Company, Salem ...appellant Vs.
1. Anuradaha
2. Abinaya
3. Minor Balaji [Minor 3rd respondent rep. by his mother and next friend Anuradha]
4. A.Sarasu ...respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 19.08.2014 made in MCOP.No.2207 of 2006 on the file of Motor Accident Claims Tribunal (Principal District Court), Cuddalore. Page No.1/17
For Appellant : Mr.K.Vinod For Respondents for RR1 to 3 : Mr.D.Baskar for R4 : given up Cross Obj. No.21 of 2018 in CMA.No.1604 of 2017
1. Anuradaha
2. Abinaya
3. Minor Balaji ...Cross appellants [Minor Balaji rep. by his mother 1st appellant Anuradha] Vs.
1. The Branch Manager, The Oriental Insurance Company, Salem
2. Sarasu ...respondents Prayer: Cross Appeal filed under Section 104 of the Code of Civil Procedure to allow this cross appeal and direct enhanced compensation of Rs.45,88,000/- to be paid in additional to Rs.29,12,000/- fixed by the Principal District Judge, Cuddalore in MCOP.No.2207 of 2006 by order dated 19.08.2014.
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For Appellant : Mr.D.Baskar For Respondents for R1 : Mr.K.Vinod C.M.A.No.1605 of 2017 The Branch Manager, The Oriental Insurance Company, Salem ...appellant Vs.
1. Anuradaha
2. A.Sarasu ...respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 19.08.2014 made in MCOP.No.2208 of 2006 on the file of Motor Accident Claims Tribunal (Principal District Court), Cuddalore. For Appellant : Mr.K.Vinod For Respondents for R1 : Mr.D.Baskar Page No.3/17
Cross Appeal No.20 of 2018 in CMA.No.1605 of 2017 Anuradaha ...appellant Vs.
1. The Branch Manager, The Oriental Insurance Company, Salem
2. Sarasu ...respondents Prayer: Cross Appeal filed under Section 104 of the Code of Civil Procedure to allow this cross appeal and direct enhanced compensation of Rs.21,36,685/- lakhs to be paid in additional to the compensation of Rs.3,73,515/- fixed by the Principal District Judge, Cuddalore in MCOP.No.2208 of 2006 by order dated 19.08.2014. For Appellant : Mr.D.Baskar For Respondents for R1 : Mr.K.Vinod Page No.4/17
C O M M O N J U D G M E N T [Judgment of the Court was delivered by S.S.SUNDAR, J] C.M.A.No.1604 of 2017 is filed by the Insurance Company as against the order dated 19.08.2014 made in MCOP.No.2207 of 2006 on the file of Motor Accident Claims Tribunal (Principal District Court), Cuddalore. Being not satisfied with the quantum of compensation awarded in the said judgment, the claimants have filed Cross Obj.No.21 of 2018 seeking enhancement of compensation.
2. C.M.A.No.1605 of 2017 is filed by the Insurance Company as against the order 19.08.2014 made in MCOP.No.2208 of 2006 on the file of Motor Accident Claims Tribunal (Principal District Court), Cuddalore. Being not satisfied with the quantum of compensation awarded in the said judgment, the claimants have filed Cross Obj.No.20 of 2018 seeking enhancement of compensation.
3. For the sake of convenience, the parties are referred to as per their litigating status before the Tribunal.
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4. The first claimant in MCOP.No.2207 of 2006 is the wife and the claimants 2 and 3 are the minor children of the deceased by name Baskar. While the deceased Baskar was driving his Qualis Car from Cuddalore to Periyakulam, the vehicle met with an accident. It is the case of the claimants that a Lorry belonged to the first respondent in MCOPs came in a rash and negligent manner in the opposite direction and dashed against the Qualis Car driven by the deceased. Due to the impact, the deceased Baskar died on the spot and the first claimant suffered serious head injuries. The legal heirs of the deceased Baskar viz., his wife and children filed MCOP.No.2207 of 2006 seeking compensation of Rs.75,00,000/- for the death of the deceased. For the injuries sustained by the wife of the deceased, she filed MCOP.No.2208 of 2006 seeking compensation of Rs.25,00,000/-.
5. After analysing the entire evidence, the Tribunal came to the conclusion that the accident had occurred due to the rash and negligent driving of the vehicle of first respondent in the two MCOP's. In MCOP.No.2207 of 2006, the Tribunal awarded a compensation of Rs.29,62,000/- with 9% interest per annum, out of which, the first claimant Page No.6/17
is held entitled for a compensation of Rs.13,62,000/- and the respondents 2 and 3 are held entitled to Rs.8,00,000/- each. In MCOP.No.2208 of 2006, the Tribunal awarded a compensation of Rs.3,73,315/- with 6% interest per annum.
6. The present appeals have been filed questioning the quantum of compensation awarded by the Tribunal and hence, we are not dealing with the other aspects of the award.
C.M.A.No.1604 of 2017 (MCOP.No.2207 of 2006) and Cross Obj. No.21 of 2018
7. The learned counsel appearing for the appellant/Insurance Company submitted that the Tribunal failed to see that no documentary or oral evidence was produced by the claimants to prove the income of the deceased at the time of the accident. It is their case that though the accident had occurred in the year 2005, the documents relied upon by the claimants, viz., Income Tax Returns, were all prior to 2001 and the income of the deceased at the time of the accident is not proved by any material evidence Page No.7/17
by the claimants. The learned counsel also submitted that the Tribunal has awarded the compensation by adding 30% of the income of the deceased towards future prospects, which is on the higher side. It is submitted that, as per the National Insurance Company Limited vs. Pranay Sethi and others [(2017) 16 SCC 680], the Tribunal ought to have added only 25% towards future prospects.
8. The claimants had examined the mother of the first claimant, who is the mother-in-law of the deceased, as PW1. PW1 in her evidence had stated that her son-in-law, viz., the deceased was running a Rice Mill and a Jewellery Shop and also had agricultural income. Thus, it is claimed that the deceased was earning Rs.37,000/- per month at the time of the accident.
9. It is admitted that the Income Tax Returns of the deceased were filed as Exs.P18 and P19 and those documents show that the deceased was drawing a monthly income of around Rs.20,000/-. While cross-examining PW1, the Insurance Company had no dispute with regard to the income of the deceased through business as well as by running a shop. Page No.8/17
10. This Court is unable to discard the evidence of PW1. The Income Tax Returns submitted by the deceased, which is 4 years prior to the date of the accident, cannot be discarded merely because it is not for the relevant year when the deceased died.
11. PW1 categorically stated that the deceased was earning more than Rs.37,000/- per month. The family of the deceased is having own house and luxurious Car at the time of the accident and they were living a decent life. The Tribunal by relying upon Exs.P18 and P19 viz., Income Tax Statement and Income Tax Return and also on the over all analysis of evidence, came to the conclusion that the income of the deceased should not be less than Rs.20,000/- per month. This Court is unable to interfere with the findings of the Trial Court as regards the monthly income of the deceased at the time of the accident.
12. Further, the Tribunal has added 30% of monthly income towards future prospects. As rightly pointed out by the learned counsel for the Insurance Company that the deceased being a business man and aged 43 years at the time of the accident, it is appropriate to add 25% towards future Page No.9/17
prospects instead of 30%. Therefore, the Loss of Income is calculated as follows:
Loss of Income Monthly income of the deceased : 20,000 Add: 25% towards Future Prospects : 5,000 25,000 Annual Income : 3,00,000 [25,000 x 12] Less: 1/3 towards Personal Expenses : 1,00,000 2,00,000 Applying multiplier 14 : 28,00,000 [2,00,000 x 14] Thus, the Loss of Income of the deceased is arrived at Rs.28,00,000/-
13. It is seen that the Tribunal has awarded only a sum of Rs.50,000/- under the other heads. Considering the fact that the wife and children of the deceased are entitled to independent claim towards loss of Consortium, this Court is of the view that the claimants are entitled to a sum of Rs.80,000/- towards Loss of Consortium. Further, a sum of Rs.10,000/- each awarded by the Tribunal towards Funeral Expenses and Transport Expenses, are Page No.10/17
confirmed. As decided by the Supreme Court in recent judgments, the claimants are entitled to interest only at the rate of 7.5% and not 9% as awarded by the Tribunal. In total, the claimant is entitled to Rs.29,00,000/- along with interest at the rate of 7.5% per annum from the date of claim petition till the date of realization.
14. The total compensation is re-determined as mentioned below: S.
No.
Heads under which the compensation is awarded Amounts awarded by the Tribunal Amounts awarded by this Court Loss of Income 29,12,000 28,00,000 Loss of Consortium 30,000 80,000 Funeral Expenses 10,000 10,000 Transport Expenses 10,000 10,000 Total 29,62,000 29,00,000
15. This Court is unable to find any merit in the cross-objection filed by the claimants as the only ground raised was regarding future prospects and this Court has already held that the claimants are entitled to 25% of the monthly income towards future prospects.
16. In fine, the total compensation of Rs.29,62,000/- awarded by the Tribunal is hereby reduced to Rs.29,00,000/-, which shall carry interest at 7.5% from the date of claim petition till the date of payment. The Insurance Page No.11/17
Company is directed to deposit the total compensation amount awarded by this Court before the Tribunal, after adjusting the amount if any already deposited, within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit, the first claimant is permitted to withdraw her share. Insofar as the minor claimants 2 and 3 are concerned, their shares shall be deposited by the Tribunal in any Fixed Deposit Scheme in any one of the Nationalised Banks and it shall be renewed periodically till they attain majority and the interest accrued thereon shall be withdrawn by the first claimant / mother once in three months. The apportionment of shares as fixed by the Tribunal is hereby confirmed.
17. With the above observations and directions, the Civil Miscellaneous Appeal is partly allowed and the Cross-Objection is dismissed. No costs.
CMA 1605 of 2017 (MCOP.No.2208 of 2006) and Cross Obj. No.21 of 2018
18. As against the award in MCOP.No.2208 of 2006, the Insurance Company has preferred CMA.No.1605 of 2017. It is the submission of the learned counsel for the Insurance Company that the claimant has not Page No.12/17
examined herself as witness to prove the nature of injury or disability suffered by her on account of the accident. However, the Tribunal by taking the monthly income of the deceased at Rs.10,000/- and the disability at 34% as per the Doctor's evidence, awarded a sum of Rs.3,26,400/- towards Permanent Disability.
19. This Court is unable to sustain the order of the Tribunal regarding the compensation for the injuries suffered by the claimant. On the side of the claimant, the Doctor, who had assessed the claimant, was examined as PW2 and marked the Wound Certificate/Ex.P12. From the Wound Certificate, this Court is unable to find any grievous injury sustained by the claimant. Further, PW2/Doctor, who examined the claimant, is not a neurosurgeon to give the disability certificate. Though Exs.P15 to P17 were filed to show that the claimant was running business and assessed to tax, this Court is unable to find that there was a definite loss of income to the claimant on account of the accident. Hence, the sum of Rs.3,26,400/- awarded towards Permanent Disability by applying multiplier method and Rs.5,000/- awarded towards Loss of income for one month, are set aside.
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20. Even though this Court is unable to find any justification for awarding compensation on the basis of the disability certificate issued by the Doctor, this Court is of the view that the injured claimant is entitled to some compensation as she was unable to perform or carry out her business or take care of her personal affairs as she was able to do earlier before the accident. Therefore, this Court awards a lump sum amount of Rs.1,00,000/- towards partial disability.
21. The sum of Rs.21,915/- awarded by the Tribunal under the head "Medical Expenses" based on medical bills, which were marked as Exs.P22, 24 and 25, appears to be just and fair and hence, the same is confirmed. Further, the sum of Rs.10,000/-, 5,000/- and 5,000/- awarded by the Tribunal under the heads viz., Loss of Income, Pain and Sufferings, Extra Nourishment and Transport appear to be reasonable and hence they are confirmed.
22. As decided the Supreme Court in recent judgments, the claimants are entitled to interest at the rate of 7.5% per annum and not 6% as awarded by the Tribunal. In total, the claimant is entitled to Rs.1,41,915/- along with Page No.14/17
interest at the rate of 7.5% per annum from the date of claim petition till the date of realization.
23. As this Court has not even convinced with the reasons submitted by the Tribunal to award a sum of Rs.3,73,315/- as compensation for the injuries suffered by the claimant, this Court is unable to entertain the Cross Objection filed by the injured claimant.
24. The total compensation is re-determined as mentioned below: S.
No.
Heads under which the compensation is awarded Amounts awarded by the Tribunal Amounts awarded by this Court Permanent Disability / Partial Disability 3,26,400 1,00,000 Loss of income for one month 5,000 - Pain and Sufferings 10,000 10,000 Extra Nourishment 5,000 5,000 Transport 5,000 5,000 Medical Bills 21,915 21,915 Total 3,73,315 1,41,915
25. In fine, the total sum of Rs.3,73,315/- awarded by the Tribunal towards compensation is hereby reduced to Rs.1,41,915/-, which shall carry interest at 7.5% from the date of claim petition till the date of payment. The Insurance Company is directed to deposit the total compensation before the Page No.15/17
Tribunal, after adjusting the amount already deposited, within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the entire amount in accordance with law before the Tribunal.
26. With the above modification in the award of the Tribunal and directions issued above, this Civil Miscellaneous Appeal is partly allowed and the Cross-Objection is dismissed. No costs. (S.S.S.R.J.,) (N.M.J.,) 28.09.2022 Index : Yes / No Speaking order: Yes/No pvs To
1. The Principal District Judge, Motor Accident Claims Tribunal, Cuddalore
2. The Section Officer, VR Section High Court, Madras. Page No.16/17
S.S.SUNDAR , J.
and N.MALA, J.
pvs 28.09.2022 Page No.17/17