Madras High Court
The Divisional Manager vs D.Durgadevi on 26 October, 2015
Author: R.Subbiah
Bench: R.Subbiah
C.M.A.No.506 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 24.03.2021
JUDGMENT DELIVERED ON : 29.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.506 of 2021
The Divisional Manager,
United India Insurance Co. Ltd.,
DO-13A, Nethaji Road,
Cuddalore – 607001. ... Appellant
vs
1.D.Durgadevi
W/o.R.Dhananjayan
2.Minor D.Nikitha
D/o.R.Dhananjayan
3.Minor D.Jyoshitha
D/o.D.Dhananjayan
4.J.Rajamanickam
S/o.Jagannathan
5.Vasantha
W/o.J.Rajamanickam
(minors 2 and 3 represented by
her mother Guardian NF D.Durgadevi)
6.S.B.Mohamed Raffi
S/o.S.Bhashu ... Respondents
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C.M.A.No.506 of 2021
Prayer: Civil Miscellaneous Appeal filed u/s.173 of the Motor Vehicles Act,
1988, against the judgment and decree dated 26.10.2015 passed in
M.C.O.P.No.2404 of 2011 on the file of the Motor Accident Claims Tribunal,
Principal District Judge, Cuddalore.
For Appellant : Mr.S.Arun Kumar
For Respondents : Ms.Ramya V.Rao
for Mr.R.Sreedhar [R1 to R5]
Ex parte [R6]
*****
JUDGMENT
R.SUBBIAH, J This matter is heard through Video-Conferencing.
2. For the sake of convenience, appellant herein is referred to as 'Insurance Company' and respondents 1 to 5 are referred to as 'Claimants'.
3. Questioning the quantum of compensation awarded by the Tribunal in and by its judgment and decree dated 26.10.2015 passed in M.C.O.P.No.2404 of 2011 on the file of the Motor Accident Claims Tribunal, Principal District Judge, Cuddalore, Insurance Company has filed the present appeal. 2/13 C.M.A.No.506 of 2021
4. The brief facts of the case are as follows:
Respondents 1 to 5 are wife, minor daughters and parents of the deceased Dhananjayan. On 09.08.2011 at about 05.00 hours, while the deceased was driving his Tata Indica Car bearing Registration No.TN-38-X- 5918, on the Coimbatore – Sathy Road, a Lorry bearing Registration No.TN-B- 3736 driven by its driver in a rash and negligent manner and dashed against the Car, as a result of which the deceased and one Balakrishnan, who was travelling with the deceased, sustained grievous injuries. Immediately, they were taken to Coimbatore Medical College Hospital, Coimbatore. After giving first-aid treatment, the deceased Dhananjayan was taken to Sri Ramakrishna Hospital, Coimbatore, for further treatment. Despite treatment, the deceased Dhananjayan died on 14.08.2011. The deceased Dhananjayan was the Proprietor of M/s.Sivasakthi Software Technologies, Coimbatore and Director of M/s.Sivasakthi Software Services P.Ltd., Coimbatore and was earning a sum of Rs.1,50,000/- p.m. Hence, respondents/claimants filed a claim petition seeking compensation in a sum of Rs.2,50,00,000/-.
5. Resisting the claim made by respondents/claimants, appellant/Insurance Company had filed a detailed counter statement inter alia 3/13 C.M.A.No.506 of 2021 contending that the accident had not occurred in the manner as projected by respondents/claimants. They have also denied the age, occupation and income of the deceased. Thus, they prayed for dismissal of the claim petition.
6. The legal heirs of the deceased Balakrishnan had also filed a claim petition seeking compensation for the death of the deceased Balakrishnan. Hence, a joint trial was conducted in both the cases.
7. To prove their claim, on the side of claimants, 5 witnesses were examined and 31 documents were marked. On the side of appellant Insurance Company, none were examined and no exhibit was marked. Two documents viz., Ex.X1 – Income Tax Report issued by Income Tax Office, Coimbatore and Ex.X2 – Sales tax return in Form I to Form II for Tvl.Sivasakthi Software Technologies, Coimbatore, were marked by the Court.
8. On appreciation of materials and the evidence on record, the Tribunal arrived at a finding that the accident had occurred due to the rash and negligent driving of Lorry bearing Registration No.TN-B-3736. On coming to such a finding, the Tribunal directed the appellant/Insurance Company, as insurer of the offending vehicle, to pay compensation. The Tribunal awarded a sum of 4/13 C.M.A.No.506 of 2021 Rs.98,00,000/- as compensation. The break-up details are as follows:
Sl. Compensation awarded under the Amount
No. head (in Rs.)
1. Loss of dependency 95,62,500/-
2. Loss of consortium 50,000/-
3. Loss of love affection 1,70,000/-
4. Transportation and funeral expenses 25,000/-
Total 98,07,500/-
Rounded off to 98,00,000/-
The said sum was directed to be paid together with interest at 8% p.a. from the date of claim petition till the date of realisation.
9. The primary submission of learned counsel for appellant/Insurance Company is that absolutely no document was produced by respondents/claimants to establish that after the demise of the deceased, the companies viz., M/s.Sivasakthi Software Technologies, Coimbatore and M/s.Sivasakthi Software Services P.Ltd., Coimbatore, were closed. In the absence of any evidence, the normal presumption could be that the family members of the deceased are running the business. However, the Tribunal had taken a sum of Rs.10,00,000/- as the annual income of the deceased and after deducting income tax of Rs.1,50,000/-, fixed the annual loss of income at Rs.8,50,000/-. In fact, PW-4, Chartered Accountant, in the cross-examination, 5/13 C.M.A.No.506 of 2021 had deposed that after the demise of the deceased, first respondent/wife of the deceased is running the business. In such circumstances, the sum of Rs.8,50,000/- fixed as the annual loss of income is extremely on the higher side. Thus, learned counsel seeks for proper reduction of the compensation awarded by the Tribunal.
10. On the other hand, learned counsel for respondents/claimants made his submissions supporting the award passed by the Tribunal.
11. This Court has considered the rival submissions and perused the materials on record.
12. Since only the quantum of compensation is challenged in this appeal, this Court is not dealing with the other aspects of the award.
13. It is the specific case of respondents/claimants that the deceased was the Proprietor of M/s.Sivasakthi Software Technologies, Coimbatore and Director of M/s.Sivasakthi Software Services P.Ltd., Coimbatore and was earning a sum of Rs.1,50,000/- p.m. To establish the same, respondents/claimants had produced Ex.P10 – Xerox copy of Income Tax 6/13 C.M.A.No.506 of 2021 Return acknowledgement of deceased R.Dhananjayan, Ex.P11 – Balance Sheet of Sivasakthi Software Technologies, Coimbatore, Ex.P12 – Audit Report for the year 2011-12 of Sivasakthi Software Technologies, Coimbatore, Ex.P13 – Provisional Balance Sheet as on 30.07.2011 of Sivasakthi Software Technologies, Coimbatore and Ex.P14 – Xerox copy of B.Sc (Computer Science) Degree Certificate of deceased Dhananjayan. The said documents reveal that the deceased was earning good income and was an Income-Tax assessee. At the same time, as rightly submitted by learned counsel for appellant/Insurance Company absolutely no tangible evidence was produced to establish that after the demise of the deceased, the business run by the deceased was closed. Thus, it could be reasonably presumed that the business carried on by the deceased continued by his heirs after his death. Therefore, there was no absolute loss of income which the deceased had earned during his life time. If at all, the family members would have lost the experience and guidance of the deceased, who mastered the nuances in running the business. The death of deceased would have deprived his legal heirs the nuances of the business and not the entire business carried on by the deceased is lost. Under such circumstances, this Court is of the opinion that there is no complete loss of income to the family and on the other hand, there might be a partial loss of income which the deceased had earned during his life time. In the aforestated 7/13 C.M.A.No.506 of 2021 circumstances, the sum of Rs.8,50,000/- fixed as annual loss of income by the Tribunal appears to be on the higher side. Considering the facts and circumstances, this Court is of the opinion that the amount awarded by the Tribunal can be re-calculated by fixing a nominal sum of Rs.6,00,000/- per annum as expenses incurred for engaging a person in the place of the deceased to manage the business, to arrive at a just and reasonable compensation under the head 'loss of dependency'. Further, this Court finds that future prospects has not been granted by the Tribunal. As the deceased was aged 40 years at the time of accident, 25% is granted towards future prospects. Accordingly, the compensation payable under the head 'loss of dependency' is re-calculated as follows:
Annual loss of Income on account of engaging a person to run the business : Rs.6,00,000/-
Add: Future Prospects
25% of Rs.6,00,000/- : Rs.1,50,000/-
-----------------
Rs.7,50,000/-
Less: Personal expenses
1/4 of Rs.7,50,000/- : Rs.1,87,500/-
-----------------
Rs.5,62,500/-
Multiplier : x 15
-----------------
Loss of dependency : Rs.84,37,500/-
-----------------
8/13
C.M.A.No.506 of 2021
14. Further, this Court finds that a sum of Rs.50,000/- has been awarded towards loss of consortium. As per the dictum laid down by the Apex Court in the case of National Insurance Company Limited, Vs. Pranay Sethi and others, reported in 2017 (16) SCC 680, wife of the deceased is entitled to get only Rs.40,000/- under the head "loss of consortium". Hence, a sum of Rs.50,000/- granted under such head is reduced to Rs.40,000/-.
15. Similarly, this Court finds that the Tribunal had awarded a sum of Rs.50,000/- each to respondents 1 to 3/wife and minor daughters of the deceased and Rs.10,000/- each to respondents 4 and 5/parents of the deceased under the head "loss of love and affection". As per the recent judgment of the Supreme Court reported in CDJ 2020 SC 601 = 2020 ACJ 2131 (SC) = 2020 (2) MWN (Civil) 827 (United India Insurance Company Limited and others Vs. Satinder Kaur @ Satwinder Kaur and others), respondents 2 and 3, being the minor daughters of the deceased, are entitled to Rs.40,000/- each towards parental consortium. Hence, the sum of Rs.1,50,000/- awarded to respondents 1 to 3 under the head 'loss of love and affection' is set aside. Instead, a sum of Rs.80,000/- (40000 * 2) is awarded to respondents 2 and 3/minor daughters as compensation under the head 'loss of parental consortium'. 9/13 C.M.A.No.506 of 2021
16. Further, the sum of Rs.20,000/- awarded under the head 'loss of love and affection' to respondents 4 and 5/parents of the deceased is hereby enhanced to Rs.80,000/- (40,000 * 2). This Court also finds that no sum has been awarded towards loss of estate and hence, a sum of Rs.15,000/- is granted under such head.
17. The interest awarded by the Tribunal at 8% p.a., is reduced to 7.5% p.a. Except this modification, the award of the Tribunal, in all other aspects, is hereby confirmed.
18. Accordingly, the modified compensation payable would be:
Amount awarded Amount awarded Sl. Compensation awarded by Tribunal by this Court No. under the head (in Rs.) (in Rs.)
1. Loss of dependency 95,62,500/- 84,37,500/-
2. Loss of parental consortium - 80,000/-
3. Loss of love and affection 20,000/- 80,000/-
4. Loss of consortium 50,000/- 40,000/-
5. Transportation and funeral 25,000/- 25,000/- expenses
6. Loss of love affection 1,50,000/- -
7. Loss of estate - 15,000/-
Total 98,07,500/- 86,77,500/-
Rounded off to 98,00,000/- -
10/13
C.M.A.No.506 of 2021
In the result, the Civil Miscellaneous Appeal is partly allowed. The compensation of Rs.98,00,000/- awarded by the Tribunal is hereby reduced to Rs.86,77,500/- [Rupees Eigthy Six Lakhs Seventy Seven Thousand and Five Hundred only]. The appellant/Insurance Company is directed to deposit the reduced compensation of Rs.86,77,500/-, less the amount already deposited, together with interest at 7.5% p.a. from the date of claim petition till the date of deposit within a period of four weeks from the date of receipt of this judgment.
On such deposit being made by appellant/Insurance Company, respondents 1, 4 and 5/wife and parents of the deceased are permitted to withdraw their respective shares, as apportioned by the Tribunal, along with accrued/proportionate interest and costs, less the amount, if any already withdrawn by them, by filing necessary application before the Tribunal. The shares of respondents 2 and 3/minors shall be deposited in fixed deposit in any one of the nationalised bank, till they attain majority and first respondent, being their mother and natural guardian, is entitled to withdraw interest once in three months towards taking care of the minors. No costs.
[R.P.S., J] [S.S.K., J]
29.03.2021
Speaking order
Index: yes/no,
Internet:yes
gm
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C.M.A.No.506 of 2021
To
1.The Motor Accident Claims Tribunal,
Principal District Judge,
Cuddalore.
2.The Section Officer,
VR Section,
High Court, Madras.
12/13
C.M.A.No.506 of 2021
R.SUBBIAH, J
and
SATHI KUMAR SUKUMARA KURUP, J
gm
Pre-delivery judgment
in
C.M.A.No.506 of 2021
29.03.2021
13/13