The Branch Manager Vs S.Nirmala

MCOP.No.90 of 2015 dated 02.08.2022 on the file of the Motor Accident Claims Tribunal, Special District Court to Deal with Motor Accident Cases, Madurai and allow the appeal with costs.

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For Appellant : Mr. J.S.Murali

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J U D G M E N T

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(Judgment of the Court was delivered by N.ANAND VENKATESH, J.)

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This appeal has been filed by the Insurance Company challenging the award passed by the Special District Court, Trichy, in MCOP No. 90 of 2015 dated 02.08.2022.

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Though the names of the respondents are printed in the

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cause list, there is no appearance on their behalf either in person or

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through counsel.

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C.M.A(MD)No.276 of 2023

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The first respondent is the wife of the deceased, the second respondent is the son and the third and fourth respondents are the daughter of the deceased. The fifth respondent is the mother of the deceased. The case of the respondents is that on 24.11.2014, at about 5.20 p.m., the deceased Sivasekaran, along with his brother's son Ganeshkumar, were walking on the road as pedestrians and at that point of time, the driver of the bus belonging to the sixth respondent herein was driven in a rash and negligent manner and dashed against the deceased, as a result of which, the deceased sustained grievous injuries and was taken to Dindigul Government Hospital, where he succumbed to the injuries on the way to the hospital. An FIR came to be registered in Crime No.214 of 2014. It is under these circumstances, the claim petition came to be filed before this Tribunal.

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The Tribunal, on considering the facts and circumstances of

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the case and on appreciation of oral and documentary evidence, came to a conclusion that the accident had taken place only due to the rash and negligent driving on the part of the offending vehicle.

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C.M.A(MD)No.276 of 2023

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Having rendered such finding, the Tribunal fixed the total

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compensation at Rs.24,42,040/- under the following heads:

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Head	Amount
Loss of Income	Rs.22,07,040/-
Loss of Spousal consortium	Rs.40,000/-
Loss of Parental consortium	Rs.1,20,000/-
Loss of filial consortium	Rs.40,000/-
Funeral expenses	Rs.15,000/-
Loss of estate	Rs.15,000/-
Transport expenses	Rs.5,000/-
Total	Rs.24,42,040/-

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The above compensation was directed to be paid along with

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interest at the rate of 7.5% per annum. However considering the fact that the driver of the offending vehicle did not posses a valid driving license, pay and recover was ordered.

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The Insurance Company has filed the present appeal mainly on the ground that the driver of the offending vehicle respondent did not

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possess a valid driving license and therefore, pay and recover ought not to have been ordered.

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8.This Court carefully considered the submissions made by the learned counsel appearing for the appellant and also the award passed by the Tribunal.

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The learned counsel for the appellant submitted that the compensation amount fixed by the tribunal is on the higher side. Learned counsel submitted that the deceased was aged about 55 years and the accident had taken place on 24.11.2014 and the Tribunal had fixed the monthly income at Rs.19,000/- based on Ex.P15. Learned counsel submitted that Ex.P15 is the income tax return filed for the assessment year 2013 – 2014 by showing exorbitant income and previous income tax returns were not filed to show the actual income earned by the deceased. The learned counsel further submitted that the only dependent is the first respondent, who is the wife of the deceased and therefore, the Tribunal ought to have deducted half towards personal expenses and whereas, the

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Tribunal had deducted 1/5^th towards personal expenses and hence, the same also requires interference of this Court.

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We find force in the submission made by the learned counsel for the appellant/insurance company. In the case in hand, Ex.P15 cannot be the basis for fixing monthly income of the deceased since the income tax return pertain to the assessment year 2013 – 2014. The accident itself had taken place on 24.11.2014. Hence, there is a chance of showing higher income for the deceased. The earlier income tax returns have not been marked in this case. Therefore, we are not inclined to rely upon Ex.P15 to fix the monthly income of the deceased.

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Considering the fact that the accident had taken place in the year 2014, we fix the notional monthly income at Rs.15,000/-. Insofar as deduction is concerned, as rightly contended by the learned counsel for the appellant/insurance company, the only dependent was the wife and therefore, the Tribunal ought to have deducted half towards personal expenditure of the deceased. Hence, we are inclined to interfere with the

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finding of the Tribunal with respect to the deduction of 1/5^th towards personal expenses.

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In the light of the above, the compensation under the head of loss of income is calculated as under:

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Rs.8,250/- (16500 x 1/2) x 12 x 11 = Rs.10,89,000

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Accordingly, the loss of income is reduced from Rs.22,07,040/-

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to Rs.10,89,000/- and the total compensation would be Rs.13,24,000/-. Insofar as the other heads are concerned, it shall remain unaltered.

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It is brought to the notice of this court by the learned counsel appearing for the Insurance Company that this Court passed the interim order dated 20.03.2023 and directed the appellant/insurance company to deposit 60% of the award amount along with accrued interest. The learned counsel for the appellant/insurance company submitted that this interim order has been complied with. This Court had also permitted the claimants to withdraw their respective shares. If, ultimately, the compensation amount modified by this Court is less than

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60%, that was deposited by the appellant/insurance company and this amount deposited has already been withdrawn by the claimants, the same need not be recovered from the claimants. If on the other hand, the claimants have not withdrawn the amount deposited by the appellant/insurance company, the modified compensation amount fixed by this Court can be permitted to be withdrawn from the amount that has already been deposited by the appellant/insurance company before the Tribunal. The balance amount, if any, shall be permitted to be withdrawn by the appellant/insurance company.

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