Madras High Court
Icici Lombard General Insurance ... vs Y.Vidyalakshmi on 22 August, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.Nos.1110 & 1408 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.Nos.1110 & 1408 of 2022 and
C.M.P.No.8139 of 2022
C.M.A.No.1110 of 2022:
ICICI Lombard General Insurance Company Limited,
Regional Office, TP Cell,
Andhra Plaza, 1st Floor,
No.84 & 85 Walltax Road,
Chennai – 600 003. .. Appellant
Vs.
1.Y.Vidyalakshmi
2.Y.Padmashree
3.Y.Krishnaveni
4.M.Saravanan .. Respondents
(R4 remained exparte before Tribunal.
Hence, notice to R4 dispensed with)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
09.12.2021, made in M.C.O.P.No.1323 of 2019, on the file of the Motor
Accident Claims Tribunal, Chief Court of Small Causes, Chennai.
https://www.mhc.tn.gov.in/judis
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C.M.A.Nos.1110 & 1408 of 2022
For Appellant : Mr.B.Siva Kollapan
For RR 1 & 2 : Mr.A.Babu
C.M.A.No.1408 of 2022:
1.Y.Vidyalakshmi
2.Y.Padmashree
Y.Krishnaveni (deceased) .. Appellants
Vs.
1.M.Saravanan
2.ICICI Lombard General Insurance
Company Limited,
The Regional Office, TP Cell,
No.232, N.S.C.Bose Road,
Bombay Mutual Building,
VI Floor,
Chennai – 600 001.
3.K.Mahalakshmi
4.G.Maheshwari .. Respondents
(cause title accepted vide order of
this Court dated 20.06.2022 made
in C.M.P.No.9461 of 2022 in
C.M.A.SR.No.47155 of 2022)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
09.12.2021, made in M.C.O.P.No.1323 of 2019, on the file of the Motor
Accident Claims Tribunal, Chief Court of Small Causes, Chennai.
https://www.mhc.tn.gov.in/judis
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C.M.A.Nos.1110 & 1408 of 2022
For Appellants : Mr.A.Babu
For R2 : Mr.B.Siva Kollapan
COMMON JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.) C.M.A.No.1110 of 2022 has been filed by the appellant-Insurance Company against the award dated 09.12.2021, made in M.C.O.P.No.1323 of 2019, on the file of the Motor Accident Claims Tribunal, Chief Court of Small Causes, Chennai.
2.C.M.A.No.1408 of 2022 has been filed by the appellants- claimants seeking enhancement of compensation granted by the Tribunal in the award dated 09.12.2021, made in M.C.O.P.No.1323 of 2019, on the file of the Motor Accident Claims Tribunal, Chief Court of Small Causes, Chennai.
3.Both the appeals arise out of same accident and same award and hence, disposed of by this common judgment.
4.The parties are referred to as per their ranks in the claim petition, for the sake of convenience.
https://www.mhc.tn.gov.in/judis 3/18 C.M.A.Nos.1110 & 1408 of 2022
5.The claimants filed M.C.O.P.No.1323 of 2019, claiming a sum of Rs.1,93,00,000/- as compensation for the death of one Yechuri Viswanath, who died in the accident that took place on 14.11.2018.
6.According to the claimants, on 14.11.2018, the deceased Yechuri Viswanath was proceeding from T.Nagar to Karapakkam in a Honda Activa scooter bearing Registration No.TN 09 BL 5584. At about 07.45 hours, while he was proceeding from West to East direction on the Sardar Patel Road (SP Road) in front of Central Leather Research Institute (CLRI) Gate, opposite to Hot Chips, the driver of the lorry bearing Registration No.TN 12 J 7826 belonging to 1st respondent, who was driving the lorry on the same direction in a rash and negligent manner endangering public safety, hit the scooter driven by the said Yechuri Viswanath and caused the accident. In the accident, the said Yechuri Viswanath sustained injuries and died on the spot. Hence, the claimants filed the said claim petition claiming a sum of Rs.1,93,00,000/- as compensation against the respondents who are the owner and insurer of the lorry respectively.
https://www.mhc.tn.gov.in/judis 4/18 C.M.A.Nos.1110 & 1408 of 2022
7.The 1st respondent, the owner of the lorry remained exparte before the Tribunal.
8.The 2nd respondent-Insurance Company filed counter statement and denied all the averments made by the claimants. The 2nd respondent denied the manner of accident as alleged by the claimants. The claimants have to prove that the lorry belonging to 1st respondent was having valid Insurance Policy, R.C.Book, Fitness Certificate, Permit and the driver of the lorry was possessing valid driving license to drive the lorry at the time of accident. If there is any violation of terms and conditions of insurance policy, the 2nd respondent is not liable to pay any compensation to the claimants. According to 2nd respondent, the accident has occurred only due to the negligence on the part of the deceased, who only drove the scooter in a rash and negligent manner, dashed against the lorry and invited the accident. Further, the deceased was not wearing helmet at the time of accident. Hence, contributory negligence has to be fixed on the part of the deceased. There is no negligence on the part of the driver of the lorry and the accident has not occurred due to the negligence of the driver of the lorry. The claimants have to prove that they are the legal heirs of the deceased by producing valid documents. The 2nd respondent https://www.mhc.tn.gov.in/judis 5/18 C.M.A.Nos.1110 & 1408 of 2022 denied the age, avocation and income of the deceased. In any event, the quantum of compensation claimed by the claimants are highly excessive and prayed for dismissal of the claim petition.
9.Before the Tribunal, the 1st claimant examined herself as P.W.1, one Sabapathy, eyewitness to the accident was examined as P.W.2, S.Venkatesh, Senior Vice President in Human Resource Department of Chemplast Sanmar Limited, Corporate Office at Door No.9, Cathedral Road, Chennai – 600 086 was examined as P.W.3 and marked 24 documents as Exs.P1 to P24. The 2nd respondent-Insurance Company examined one Michael, the driver of the lorry as R.W.1 and marked the copy of Aadhar Card of the driver of the lorry as Ex.R1.
10.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by the driver of the lorry belonging to the 1 st respondent and directed the 2nd respondent-Insurance Company to pay a sum of Rs.1,10,95,356/- as compensation to the claimants.
11.Challenging the liability fastened on them as well as quantum https://www.mhc.tn.gov.in/judis 6/18 C.M.A.Nos.1110 & 1408 of 2022 of compensation granted by the Tribunal in the award dated 09.12.2021, made in M.C.O.P.No.1323 of 2019, the 2nd respondent-Insurance Company has come out with an appeal in C.M.A.No.1110 of 2022.
12.Not being satisfied with the amounts awarded by the Tribunal in the award dated 09.12.2021, made in M.C.O.P.No.1323 of 2019, the claimants have come out with an appeal in C.M.A.No.1408 of 2022.
13.The learned counsel appearing for the 2nd respondent-Insurance Company contended that the accident occurred due to rash and negligent driving by the deceased. The Tribunal erroneously fixed negligence on the part of the driver of the lorry belonging to 1st respondent. The Tribunal rightly applied split multiplier, but failed to consider the evidence of P.W.3, who was the Senior Vice President in Human Resource Department that petitioner was not in pensionary service. The Tribunal erred in deducting 50% of the salary of the deceased and wrongly applied multiplier '9'. The compensation granted by the Tribunal for loss of consortium and total compensation awarded are excessive and prayed for dismissal of C.M.A.No.1408 of 2022 filed by the claimants and for setting aside the award of the Tribunal.
https://www.mhc.tn.gov.in/judis 7/18 C.M.A.Nos.1110 & 1408 of 2022
14.The learned counsel appearing for claimants submitted that accident occurred only due to rash and negligent driving by the driver of the lorry belonging to 1st respondent. The claimants proved their case by examining P.W.2 – eye-witness and by marking FIR as Ex.P1 and filed Motor Vehicle Inspector's report to show the damages caused to the scooter driven by the deceased. The learned counsel appearing for the claimants further submitted that the deceased was getting a salary of Rs.1,42,932/- per month, but the Tribunal erroneously fixed the salary of the deceased at Rs.1,23,816/-. The deceased was in a permanent job with prospects of getting promotion as General Manager and increase in salary. The Tribunal failed to grant 30% enhancement for future prospects. The Tribunal failed to consider that salary of the deceased at Rs.1,42,932/- per month is only after deduction of Income Tax. The Tribunal erred in applying split multiplier. As per the judgment of the Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC), [National Insurance Company Limited Vs. Pranay Sethi and others], the age of the deceased is the basis for adopting multiplier method. The learned counsel appearing for the claimants further submitted that the Hon'ble Apex Court in the judgment reported in (2022) 5 SCC 107 [R.Valli and https://www.mhc.tn.gov.in/judis 8/18 C.M.A.Nos.1110 & 1408 of 2022 others Vs. Tamil Nadu State Transport Corporation Ltd.], following the judgment reported in 2017 (2) TNMAC 609 (SC), cited supra, held that method of determination of compensation by applying two multipliers is erroneous and contrary to the judgments of the Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC) and 2009 (2) TNMAC 1 SC Supreme Court, [Sarla Verma & others Vs. Delhi Transport Corporation & another] and prayed for dismissal of C.M.A.No.1110 of 2022 filed by the 2nd respondent-Insurance Company, setting aside the split multiplier adopted and for enhancement of compensation.
15.Heard the learned counsel appearing for the claimants as well as the learned counsel appearing for the 3rd respondent-Insurance Company and perused the entire materials on record.
16.From the materials on record, it is seen that is the case of the claimants that while the deceased was riding the scooter, the driver of the lorry who was coming in same direction in a rash and negligent manner, dashed on the scooter and caused the accident. To substantiate their case, they examined P.W.2, eye-witness who deposed that accident occurred only due to rash and negligent driving by driver of the lorry who dashed https://www.mhc.tn.gov.in/judis 9/18 C.M.A.Nos.1110 & 1408 of 2022 on the scooter driven by the deceased Yechuri Viswanath and ran over the said Yechuri Viswanath, when he fell down due to the said impact and relied on the FIR, which was registered against the driver of the lorry. On the other hand, it is the case of the 2nd respondent-Insurance Company that the accident occurred only due to negligence on the part of the deceased who dashed on the lorry and caused the accident. To substantiate their case, the 2nd respondent examined the driver of the lorry as R.W.1. R.W.1 in his evidence admitted that deceased was riding the two wheeler on the left hand side of the lorry and he did not know how the accident has occurred. According to R.W.1, the deceased would have fell down from the two wheeler and the rear tyre of the lorry ran over on his leg. The evidence of R.W.1 is not sufficient to fix the negligence on the part of the deceased. On the other hand, the evidence of P.W.2 is categorical that accident has occurred only due to rash and negligent driving by R.W.1, the driver of the lorry. He withstood the cross examination of counsel for 2nd respondent and his evidence was not dislodged by cross-examination. The Tribunal, considering the pleadings, oral and documentary evidence, especially the evidence of P.W.2, R.W.1, has held that accident occurred only due to rash and negligent driving by the driver of the Lorry. There is no error in the said finding. https://www.mhc.tn.gov.in/judis 10/18 C.M.A.Nos.1110 & 1408 of 2022
17.As far as the quantum of compensation is concerned, according to the claimants, the deceased was working as Deputy General Manager-ERP at Chemplast Sanmar Limited, Corporate Office at Door No.9, Cathedral Road, Chennai – 600 086 and was earning a sum of Rs.1,50,000/- per month at the time of accident. To prove the said contention, the claimants have marked Exs.P11 / copy of pay slips of deceased from November 2016 to November 2018; P12 / copy of Income Tax Returns of the deceased for the assessment years 2016-2017, 2017- 2018 & 2018-2019; P19 / Bank account statement of the deceased; P23 / Calculation sheet of M/s.Chemplast Sanmar Ltd., and Ex.P24 series / copy of pay slips of the deceased from August 2018 to October 2018. The Tribunal erroneously fixed only a sum of Rs.1,28,816/- per month as income of the deceased. It is the further case of the claimants that they are entitled to compensation by fixing the monthly income of the deceased at Rs.1,42,932/- per month. The said contention is contrary to the materials on record. From the pay slip – Ex.P24, it is seen that gross salary of the deceased was Rs.1,42,932/- per month which includes basic pay, House Rent Allowance, Conveyance Allowance, Special Allowance, Medical Allowance & Misc. Reimb. Allowance. The Tribunal after deducting 10% towards Income Tax, has fixed Rs.1,28,816/- as monthly https://www.mhc.tn.gov.in/judis 11/18 C.M.A.Nos.1110 & 1408 of 2022 income of the deceased and the same is not correct.
17(i). The deceased was aged 51 years at the time of accident and was working as Deputy General Manager-ERP at Chemplast Sanmar Limited, Corporate Office at Door No.9, Cathedral Road, Chennai – 600 086, which is a permanent job. The Tribunal did not grant any enhancement towards future prospects. As per the judgment of the Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC), [National Insurance Company Limited Vs. Pranay Sethi and others], the claimants are entitled to 15% enhancement towards future prospects. The contention of the learned counsel appearing for the 2nd respondent- Insurance Company that the Tribunal ought to have applied split multiplier of 7+4 instead of 7+9 and claimants are not entitled to compensation by calculating 50% of monthly income for remaining 4 years is not acceptable, in view of the judgment of the Hon'ble Apex Court reported in (2022) 5 SCC 107, cited supra. The Hon'ble Apex Court in the said judgment held that multiplier applicable is based on the age of the deceased. In view of the judgment of the Hon'ble Apex Court referred to above, the split multiplier applied by the Tribunal is set aside. The claimants are entitled to compensation by applying multiplier '11'. https://www.mhc.tn.gov.in/judis 12/18 C.M.A.Nos.1110 & 1408 of 2022 The monthly income of the deceased is fixed at Rs.1,15,232/- (Rs.1,42,932/- – Rs.27,700/-) after deducting Rs.27,700/- granted for conveyance allowance. The deceased is liable to pay Income Tax for the said amount. Thus, the calculation for arriving annual income is as follows :-
Monthly salary of the deceased ... Rs.1,15,232.00 ADD: 15% enhancement towards future prospects ... Rs.17.284.80
------------------
Rs.1,32,516.80
------------------
(rounded off to Rs.1,32,517/-) Annual income (1,32,517 x 12) ... Rs.15,90,204/-
The accident has occurred on 14.11.2018. During the assessment year 2019-2020, upto Rs.2,50,000/-, there is nil tax. Income Tax Slab for Assessment Year 2019-2020 Upto Rs.2,50,000/- - Nil From Rs.2,50,000/- to Rs.5,00,000/- (5%) [ Rs.2,50,000/- X 5%] - Rs.12,500.00 Rs.5,00,000/- to Rs.10,00,000/- (20%) [Rs.5,00,000/- X 20%] - Rs.1,00,000.00 Above Rs.10,00,000/- (30%) https://www.mhc.tn.gov.in/judis 13/18 C.M.A.Nos.1110 & 1408 of 2022 [Rs.15,90,204/- - Rs.10,00,000/-
= Rs.5,90,204/-
= Rs.5,90,204/- X 30%] - Rs.1,77,061.20
-------------------
Rs.2,89,561.20
-------------------
(rounded off to
Rs.2,89,561/-)
Annual income after deducting income tax
(Rs.15,90,204/- – Rs.2,89,561/-) - Rs.13,00,643/-
Thus, the compensation awarded by the Tribunal towards loss of dependency is modified to Rs.95,38,048.67 [rounded off to Rs.95,38,049/-] (Rs.13,00,643/- X 11 X 2/3).
17(ii).The contention of the learned counsel appearing for the 2nd respondent-Insurance Company that the deceased also contributed negligence by not wearing helmet at the time of accident. Usually this Court fixes 15% negligence on the part of the rider of the two wheeler, if he was not wearing helmet at the time of accident. In the present case, the lorry belonging to 1st respondent ran over the head of the deceased and therefore, no negligence can be fixed on the rider of the two wheeler / deceased.
https://www.mhc.tn.gov.in/judis 14/18 C.M.A.Nos.1110 & 1408 of 2022 17(iii). The Tribunal has awarded a sum of Rs.1,20,000/- towards loss of consortium and the same is confirmed. Out of the said amount, 1 st claimant, being wife of the deceased is entitled for Rs.40,000/- for loss of consortium, the 2nd claimant being the daughter of the deceased is entitled to a sum of Rs.40,000/- towards parental consortium and the 3 rd claimant, being the mother of the deceased is entitled to a sum of Rs.40,000/- towards filial consortium. In view of the same, loss of consortium, Rs.40,000/- x 3 = Rs.1,20,000/- is confirmed. The amounts awarded by the Tribunal under other heads are just and reasonable and hence, the same are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of dependency 1,09,45,356/- 95,38,049/- Reduced
2. Loss of Estate 15,000/- 15,000/- Confirmed
3. Funeral expenses 15,000/- 15,000/- Confirmed
4. Loss of consortium
(Rs.40,000/- X 3 each) 1,20,000/- 1,20,000/- Confirmed
Total Rs.1,10,95,356/- Rs.96,88,049/- Reduced by
Rs.14,07,307/-
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C.M.A.Nos.1110 & 1408 of 2022
18.In the result, C.M.A.No.1110 of 2022 filed by the Insurance Company is partly allowed and C.M.A.No.1408 of 2022 filed by the claimants is dismissed. The compensation awarded by the Tribunal at Rs.1,10,95,356/- is hereby reduced to Rs.96,88,049/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. Pending appeals, the 3rd claimant died and the claimants 1 & 2 filed C.M.P.No.9461 of 2022 in C.M.A.SR.No.47155 of 2022 to accept the cause title showing the respondents 3 & 4 therein as respondents 3 & 4 in C.M.A.No.1408 of 2022. This Court, vide order dated 20.06.2022, ordered the said petition. In view of the above, out of the award amount now determined by this Court, the 1st claimant is entitled to a sum of Rs.46,00,000/-, the 2nd claimant is entitled to a sum of Rs.48,88,049/- and the respondents 3 & 4 in C.M.A.No.1408 of 2022, being the daughters of the 3rd claimant are entitled to a sum of Rs.1,00,000/- each as compensation. The 2nd respondent-Insurance Company is directed to deposit the award amount, now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.1323 of 2019, on the file of the Motor Accident Claims Tribunal, Chief Court of Small https://www.mhc.tn.gov.in/judis 16/18 C.M.A.Nos.1110 & 1408 of 2022 Causes, Chennai. On such deposit, the claimants 1, 2 and the respondents 3 & 4 in C.M.A.No.1408 of 2022 are permitted to withdraw their respective award amount, along with proportionate interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The 2nd respondent-Insurance Company is permitted to withdraw the excess amount lying in the credit of M.C.O.P.No.1323 of 2019, if the entire award amount has been already deposited by them. Consequently, the connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (S.S., J)
22.08.2022
krk / gsa
Index : Yes / No
Internet : Yes / No
To
1.The Chief Judge,
Motor Accidents Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
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C.M.A.Nos.1110 & 1408 of 2022
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
krk / gsa
C.M.A.Nos.1110 & 1408 of 2022
22.08.2022
https://www.mhc.tn.gov.in/judis
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