Madras High Court
Kavitha vs New India Assurance Co. Ltd
Author: Sathi Kumar Sukumara Kurup
Bench: R.Subbiah, Sathi Kumar Sukumara Kurup
C.M.A.Nos.94 & 886 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.03.2021
Delivered on : 16.04.2021
CORAM
HONOURABLE MR. JUSTICE R.SUBBIAH
AND
HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.94 and 886 of 2021
1. Kavitha
W/o. Arumugam
Arumugam (died)
2. Nishok
S/o. Arumugam
3. Deeptha
D/o. Arumugam ..Appellants in CMA.No.94/2021
..Respondents in CMA.No.886/2021
Vs.
New India Assurance Co. Ltd.,
17-B, Gandhi Road,
North Branch, Asthampatti,
Salem – 636 007. ..Appellant in CMA.No.886/2021
..Respondent in CMA.No.94/2021
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C.M.A.Nos.94 & 886 of 2021
Vs.
Arulmozhiyal
D/o. Ramesh ..Respondent in both appeals
Common Prayer: These Civil Miscellaneous Appeals are filed under
Section 173 of Motor Vehicles Act, 1988, against the judgment and decree
dated 12.04.2019 in M.C.O.P.No.09 of 2018 on the file of the Motor
Accident Claims Tribunal/Special District Judge, Dharmapuri.
For Appellant in
CMA.No.94/2021
For R2 to R4 in
CMA.No.886/2021 ::Mr.D.Ramesh Kumar
For R2 in
CMA.No.94/2021
For Appellant in
CMA.No.886/2021 ::Mrs.S.R.Sumathy
Ex-parte for R1
COMMON JUDGMENT
SATHI KUMAR SUKUMARA KURUP,J.
Civil Miscellaneous Appeal in CMA.No.886/2021 has been filed by the Insurance Company seeking to set aside the Judgment and Decree dated 12.04.2019 made in M.C.O.P.No.09 of 2018 on the file of Motor Accident Claims Tribunal/Special District Judge, Dharmapuri. Page 2 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 Civil Miscellaneous Appeal in CMA.No.94/2021 has been filed by the claimant seeking enhancement of the amount awarded by the Tribunal in the judgment dated 12.04.2019 made in M.C.O.P.No.09 of 2018 on the file of Motor Accident Claims Tribunal/Special District Judge, Dharmapuri.
2. The brief facts relevant for appreciation of the case are as follows:
The claimants before the Tribunal are the parents, brother and sister of the deceased Ramarathinam. The said Ramarathinam was employed as Software Engineer in “Mindtree Company”, Bangalore. He was drawing a sum of Rs.65,807/-.
3. On 15.07.2017 at about 07.30 am, the said Ramarathinam was riding Honda CBR Motor cycle bearing Registration No.KA 01 HD 3103 from Bangalore to Salem. When he was passing through Krishnagiri to Dharmapuri National Highway near Annapoorna Hotel in Dharmapuri, a Tarus Lorry bearing Registration No.TN-24-W-6379 which was coming from behind the two wheeler was driven by its driver in the rash and Page 3 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 negligent manner, hit the two-wheeler, thereby, the said Ramarathinam was thrown away from the two wheeler. In the impact, he suffered multiple fractures which caused his instantaneous death on the spot. In connection with this accident, the Dharmapuri Police had registered a case in Cr.No.638 of 2017 under Sections 279, 304 (A) of the IPC.
4. For the death of the deceased his legal heirs have filed MCOP.09 of 2018 claiming compensation as Rs.1,00,00,000/- before the Motor Accident Claims Tribunal/learned Special District Judge, Dharmapuri. The second respondent/Insurance Company filed counter contesting the claim of the claimants.
5. After due enquiry, based on the assessment of evidence before it, the Tribunal passed the award for a sum of Rs.65,82,576/- as compensation.
6. Aggrieved by the same, the second respondent/Insurance Company has filed CMA.No.886/2021 seeking to set aside the award passed by the Tribunal and the claimants have preferred CMA.No.94/2021 seeking Page 4 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 enhancement of the award passed by the Tribunal.
7. Mr. D.Ramesh Kumar, learned counsel for the claimants submitted that the Motor Accidents Claims Tribunal ought not to have deducted half of the amount from the income of the deceased. Actually the deceased/Ramarathinam was contributing almost the entire salary for the whole family consisting of his parents, brother and sister. In the reported rulings of the Hon'ble Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, it was stated by the Hon'ble Supreme Court that in all the cases, where the deceased was a bachelor half of the income has to be deducted towards personal expenses, but cases, where the evidence is available to show that the deceased had to support a large family consisting of more members in such exceptional cases, 1/3 of the income only shall be deducted towards his personal expenses. Here in this case, the sister and brother are younger to him. Sister was married only after his death. Father died only after the filing of the claim petition. Therefore, deducting half of the salary towards personal expenses was unfair and unjust. Also, the learned Special Judge Page 5 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 had taken the salary after deductions whereas the reported rulings of the Hon'ble Supreme Court in various cases including Sarla Varma and Pranoy Sethi had stated that the gross salary has to be considered for calculating the compensation. Here, instead of gross salary, the salary after all deductions were taken for the purpose of calculation of compensation. After the same, again the Tribunal deducted the Income Tax. Apart from that, the Tribunal did not consider the compensation under the non-pecuniary heads like “loss of love and affection” for the brother, sister and mother and “transportation”. Therefore, the award passed by the Tribunal is on the lower side. Therefore, the claimants have preferred the appeal seeking enhancement.
8. Mrs.S.R.Sumathy, learned counsel appearing for the second respondent/Insurance Company has submitted her arguments. As per her submissions, the Tribunal had ignored the guidelines issued in Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 regarding the dependency. Here, the deceased/Ramarathinam was aged 34 years on the date of death and he was Page 6 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 a bachelor. The claimants, who are parents, brother and sister were not dependent on the deceased Ramarathinam. As per the said ruling, siblings, who are adults, cannot be termed as dependants. The parents and siblings of the deceased are adults whereas the Tribunal had mechanically calculated the deduction from the income of the deceased as though, the brother and sister are dependent on him. But the fact is not so. The brother and sister were married and they are drawing their salary. Thus, they have their own source of income. Therefore, the parents alone must be construed as dependents. During the pendency of the claim petition, the father also died. Therefore, the only dependent is the mother. Again as per the reported Ruling of Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 while calculating the compensation, the appropriate multiplier should be taken, ie, either the multiplier with regard to the age of the deceased or the age of the dependent, whichever is higher. Here in this case, the deceased Ramarathinam was aged 34 years and the appropriate multiplier will be 16. The age of the mother of the deceased is 61 years. Therefore, the appropriate multiplier will be 5 from the Schedule II of the Motor Vehicles Act. Applying the ratio in Sarla Page 7 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, the age of the mother is to be taken for appropriate multiplier. But the Tribunal mechanically applied the multiplier corresponding to the age of the deceased and therefore, the calculation of compensation is excessive. That is why, the Insurance Company has preferred this appeal seeking to set aside the award passed by the Tribunal.
9. Point for consideration CMA.No.886 of 2021 Whether the award passed by the Special District Judge/Motor Accidents Claims Tribunal, Dharmapuri has to be set aside? CMA.No.94 of 2021
Whether the claimants in MCOP.No. 09 of 2018 on the file of the Special District Judge/Motor Accidents Claims Tribunal, Dharmapuri are entitled to enhancement of the award passed by the Special District Judge/Motor Accident Claims Tribunal, Dhamapuri. Page 8 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021
10. Perused the petition and counter in MCOP.No.09/2018 and the impugned award passed by the Motor Accident Claims Tribunal, Special District Judge, Dharmapuri and the grounds of appeals.
11. On perusal of the award passed by the Tribunal, it is found that the deceased is the elder son in the family and the status of the sister is that she was unmarried at the time of death of deceased Therefore naturally the elder brother would have shouldered the responsibility for younger brother and sister. The contention of the learned counsel for the Insurance Company that the age of the parents alone has to be reckoned for calculating the compensation amount is rejected considering the ratio laid down in Sarla Varma and reiterated in Pranay Sethi case. The age of the deceased alone is taken for calculating the compensation as mentioned in Sarla Varma case. The age of the claimants were not considered for calculating the loss of Income and by way of the above reported ruling laid down by the Hon'ble Supreme Court the age of the deceased alone has to be taken for calculating the loss of income and in that context, the arguments put forth by the Page 9 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 learned counsel for the Insurance Company in CMA.No.886/2021 is rejected.
12. Likewise, the contention of the learned counsel for the appellant/Insurance Company that half of the income has to be deducted towards personal expenses is also rejected. In exceptional case, the Tribunal can consider the status of the family and the status of the deceased as the elder son in the family having more responsibility to the family next to the father. In those cases, the elder son will not spend half of the income towards personal expenses. He/she will try to save as much for family. Therefore, deduction considering the status of the deceased as a bachelor, is not applicable in the facts and circumstances of this particular case. Therefore, 1/3 of the income is to be deducted towards personal expenses after deduction towards income tax. Based on the book “Law relating to Motor Accident Claims” authored by Justice. J.R.Midha of Hon'ble High Court, Delhi the Hon'ble Supreme Court passed the ruling reported in MANU/SC/0537/2012 (Amrit Bhanu Shali Vs. National Insurance Co. Ltd.,) which reads as follows:
Page 10 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 “17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.” The loss of dependency is therefore arrived as follows:
Monthly Income = Rs.65800/-
50% Future Prospects = Rs.65800+32900=98700
Annual Income =98700x12=11,84,400
Income Tax upto Rs.2,50,000 – Nil
Rs.2,50,000 to Rs.5,00,000 _ 5%
Rs.5,00,000 to Rs.10,00,000 _ 20%
Above Rs.10,00,000/- - 30%
Less Income Tax Payable = 5,00,000-2,50,000 = 2,50,000x5%=12,500 = 10,00,000-5,00,000 =5,00,000x20%=1,00,000 = 11,84,400-10,00,000=1,84,400 Page 11 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 =1,84,400x30%=55320 =12500+100000+55320=167820 Annual income for computation = 1184400-167820 = 1016580 1/3 towards personal expenses=1016580x1/3=3,38,860 =1016580-338860=677720 Taking the multiplier as 16 for the age group 31 to 35 years Pecuniary Loss :: Rs.677720 x16 :: Rs.1,08,43,520/-
13. No amount was awarded by the Tribunal under the head “loss of love and affection” and “Transportation”. This Court therefore awards a sum of Rs.40,000/- each towards loss of love and affection to the claimants 1,3,4 as per the reported Ruling of the Hon'ble Supreme Court in National Insurance Co. Ltd., Vs. Pranay Sethi and others reported in 2017 (2) TNMAC 609 (SC). This Court awards a sum of Rs.10,000/- towards “transportation”.
Page 12 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021
14. Since the amounts awarded by the Tribunal under all the other heads are just and fair, the same are hereby confirmed. The break-up details of the amounts awarded under various heads are as follows:
Sl. Head under which the Amounts Amounts
No compensation is awarded awarded by the awarded by this
Tribunal Court
1 Loss of dependency 65,52,576 1,08,43,520
2 Funeral Expenses 15,000 15,000
3 Loss of estate 15,000 15,000
4 Loss of Love and - 1,20,000
Affection for claimants
1,3,4
5 Transportation - 10,000
6 Total 65,82,576 1,10,03,520
15. CMA.No.94 of 2021
The Point for consideration is answered in favour of the claimants in MCOP.No.09 of 2018 on the file of the Special District Judge/Motor Accidents Claims Tribunal, Dharmapuri and against the respondent/Insurance Company in CMA.No.94/2021. In the result, this Civil Miscellaneous Appeal is partly allowed.
Page 13 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 16. CMA.No.886/2021 The Point for consideration is answered in favour of the respondents/claimants in MCOP.No.09 of 2018 on the file of the Special District Judge/Motor Accidents Claims Tribunal, Dharmapuri and against the appellant/Insurance Company in CMA.No.886/2021. In the result, this Civil Miscellaneous Appeal is dismissed.
17. The appellant/Insurance Company is directed to deposit the amount, which we have determined in this appeal, to the credit of M.C.O.P.No.09 of 2018, on the file of the Motor Accident Claims Tribunal, Special District Judge, Dharmapuri, with interest at the rate of 7.5% per annum from the date of Claim Petition till the date of deposit along with costs if any as awarded by the Tribunal, through RTGS or NEFT method as held by this Court in (The Oriental Insurance Company Limited, Kannur Vs. Rajesh and two others) 2016 (1) TN MAC 433, after adjusting the amount, if any, already deposited, within a period of eight weeks from the date of receipt of a copy of this judgment. Appellants in CMA.No.94 of Page 14 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.94 & 886 of 2021 2021 are the claimants and appellant in CMA.No.886 of 2021 is the Insurance Company. The claimants 1,3,4 are the mother, brother and sister of the deceased Ramarathinam. The brother and sister are not entitled to loss of income and they are only entitled to loss of love and affection of Rs.40,000/- each. But anyhow, on such deposit, the first claimant shall be entitled to withdraw a sum of Rs.70,00,000/- with accrued interest. The second and third claimant shall be entitled to withdraw a sum of Rs.20,00,000/- each with accrued interest. The appellants are directed to pay appropriate Court fees within a period of two months, failing which, they are not entitled to claim interest on the award amount.
(R.P.S.J.) (S.S.K.J.)
dh 16.04.2021
Internet: Yes/No
Speaking order/Non Speaking order
To
1.The Motor Accident Claims Tribunal,
Special District Judge, Dharmapuri.
2.The Section Officer,
V.R.Section,
High Court of Madras.
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C.M.A.Nos.94 & 886 of 2021
R.SUBBIAH, J.
AND
SATHI KUMAR SUKUMARA KURUP, J.
dh
C.M.A.Nos.94 & 886 of 2021
16.04.2021
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