Madras High CourtFuture General India Insurance Company ... vs Mumtaz Begum on 24 August, 2020Author:S.M.SubramaniamBench:S.M.SubramaniamC.M.A.No.739 of 2020\n\n\n                              IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\n                                               DATED: 24-08-2020\n\n                                                     CORAM\n\n                             THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM\n\n                                              C.M.A. No.739 of 2020\n                                                      And\n                                              C.M.P.No.4548 of 2020\n\n\n                      Future General India Insurance Company Limited,\n                      No.55, Vijayaraghava Road,\n                      T.Nagar,\n                      Chennai-17.                                  .. Appellant\n\n                                                        vs.\n\n\n                      1.Mumtaz Begum\n\n                      2.Rizwana Begum\n\n                      3.Khader Mohideen\n\n                      4.M/s.Indian Reinforcing Company Welded\n                            Mash Pvt. Ltd.,\n                        Old No.6, New No.13,\n                        Mount Poonamallee Road,\n                        Nandanambakkm,\n                        Chennai-600 089.                           .. Respondents\n\n\n\n\n                      1/16\n\n\nhttp://www.judis.nic.in\n                                                                          C.M.A.No.739 of 2020\n\n                             The Civil Miscellaneous Appeal is preferred underSection 173of\n                      the Motor Vehicles Act, 1988, against the judgment and decree dated\n                      28.08.2019 passed in M.C.O.P. No.97 of 2015 on the file of the learned V\n                      Judge, V Small Causes Court-cum-Motor Accidents Claims Tribunal,\n                      Chennai.\n\n                              For Appellant           : Ms.C.Harini for M/s.M.B.Gopalan\n                                                        Associates.\n\n                             For Respondents-1 to 3 : Mr.T.G.Balachandran\n\n                              For Respondent-4       : Notice sent, service awaited\n\n\n                                                 JUDGMENTThe appellant-Future General India Insurance Company\n\n                      Limited filed the present Civil Miscellaneous Appeal, challenging the\n\n                      judgment and decree dated 28.08.2019 passed in M.C.O.P. No.97 of 2015\n\n                      on the file of the learned V Judge, V Small Causes Court-cum-Motor\n\n                      Accidents Claims Tribunal, Chennai.2. The learned counsel appearing on behalf of the appellant-\n\n                      Insurance Company mainly contended that the quantum of compensation\n\n                      awarded by the Tribunal is not only excessive but also not in consonance2/16http://www.judis.nic.inC.M.A.No.739 of 2020with the facts and circumstances of the case. The monthly income of\n\n                      Rs.11,000/- fixed by the Tribunal is without any basis and in the absence of\n\n                      any evidence, the Tribunal ought not to have fixed the monthly income of\n\n                      Rs.11,000/-. This apart, the Tribunal has wrongly applied the multiplier.\n\n                      The Tribunal has applied the multiplier 13, which is inapplicable to the\n\n                      present case. In fact, the multiplier 9 is applicable, considering the age of\n\n                      the deceased. Therefore, the award is liable to be set aside.3. The learned counsel appearing on behalf of the respondents-\n\n                      claimants opposed the abovesaid contentions of the learned counsel\n\n                      appearing on behalf of the appellant-Insurance Company, by stating that the\n\n                      deceased was aged about 59 years at the time of accident and was running a\n\n                      Tea Stall with Snacks and Tiffin Centre from 08.09.2008 by taking on lease\n\n                      the shop with all articles from the owner Raghu, who was the owner of the\n\n                      shop. PW-3 Fazurulla was working as the Manager of the deceased's Tea\n\n                      Stall and the Manager has deposed before the Tribunal that he was receiving\n\n                      the monthly payment of Rs.12,000/- from the deceased Mr.Mohamed\n\n                      Basheer and therefore, the income fixed by the Tribunal is not excessive and3/16http://www.judis.nic.inC.M.A.No.739 of 2020in fact, lesser than that of the actual income of the deceased.4. The deceased was running a Tea Stall from 05.00 A.M. to\n\n                      10.00 P.M. and the Tea Stall was situated at No.92, Kodambakkam High\n\n                      Road, Chennai, which is a busy area. Five persons were employed in the\n\n                      Tea Stall of the deceased and the said Tea Stall was running with good\n\n                      profit and the Lease Deed (Ex.P-14) also reveals that the income of the Tea\n\n                      Stall is on the higher side.5. The learned counsel for the respondents-claimants reiterated\n\n                      that the accident occurred in the year 2014 and therefore, the notional\n\n                      income of Rs.15,000/- is to be fixed by the Tribunal.6. Contrarily, the Tribunal has erroneously fixed the monthly\n\n                      income of the deceased as Rs.11,000/- and therefore, the monthly income of\n\n                      the deceased is to be enhanced.7. In reply, the learned counsel for the appellant-Insurance4/16http://www.judis.nic.inC.M.A.No.739 of 2020Company contended that in the absence of any proof to establish the actual\n\n                      income of the deceased, the respondents-claimants, in the appeal filed by\n\n                      the appellant-Insurance Company, cannot claim enhancement of monthly\n\n                      income of the deceased, which was fixed by the Tribunal based on the Bank\n\n                      Statement.8. It is further contended that no evidence has been produced\n\n                      by the claimants before the Tribunal to establish the actual income of the\n\n                      deceased. The oral evidence of the Manager of the Tea Stall is insufficient\n\n                      and he is an interested witness. This apart, the Tribunal has applied wrong\n\n                      multiplier and the claimants have not preferred any appeal, questioning the\n\n                      award.9. The erroneous application of multiplier by the Tribunal is\n\n                      not seriously contested between the parties. On the basis of which the\n\n                      Tribunal has committed an error in adopting 13 multiplier. In fact, the\n\n                      applicable multiplier is 9. The age of the deceased was 59 years at the time\n\n                      of accident and therefore, the Tribunal has committed an error in applying5/16http://www.judis.nic.inC.M.A.No.739 of 2020the multiplier 13 instead of the multiplier 9.10. Under these circumstances, the respondents-claimants\n\n                      contested a case for enhancement of monthly income from Rs.11,000/- to\n\n                      Rs.15,000/-. The Tribunal has fixed a sum of Rs.11,000/- towards monthly\n\n                      income of the deceased based on the Bank Statement.11. The learned counsel for the respondents-claimants made a\n\n                      submission that Rs.15,000/- per month would be appropriate in view of the\n\n                      fact that the deceased was running a Tea Stall and the notional income of\n\n                      the Tea Shop must be Rs.15,000/-.12.In this regard, the learned counsel for the respondents-\n\n                      claimants relied on the judgment of the Constitution Bench of the Hon'ble\n\n                      Supreme Court of India in the case ofNational Insurlance Company\n\n                      Limited vs. Pranay Sethi and Others[(2017) 16 SCC 680], wherein the\n\n                      Hon'ble Supreme Court made an observation thatSection 168of the Act\n\n                      deals with the concept of “Just Compensation” and the same has to be6/16http://www.judis.nic.inC.M.A.No.739 of 2020determined on the foundation of fairness, reasonableness and equitability on\n\n                      acceptable legal standard because such determination can never be in\n\n                      arithmetical exactitude.13. The concept of “Just Compensation” was being repeatedly\n\n                      reiterated by the Apex Court in humpty dumpty number of judgments. The\n\n                      “Just Compensation” and the “Procedures” to be adopted in the Common\n\n                      Parlance to arrive a just compensation is also guidelined in many decisions.\n\n                      However, while adopting the process to reach the just compensation, the\n\n                      Courts are bound to look into the documents and the evidences produced by\n\n                      the parties.14. As far as running of Tea Stall is concerned, it is a self-\n\n                      employment and the income depends on various factors and mitigating facts\n\n                      and circumstances. There is a small Tea Stall or a Big Tea Stall. There is a\n\n                      Tea Stall, which may run in loss or in far of much profit. All these factors\n\n                      are to be factually established for the purpose of arriving the just\n\n                      compensation. The question arose what would be the procedure which can7/16http://www.judis.nic.inC.M.A.No.739 of 2020be followed for the purpose of ascertaining the factual income of a self-\n\n                      employed business person.15. In the present case, the accident occurred on 25.08.2014.\n\n                      The deceased was aged about 59 years at the time of accident. The deceased\n\n                      left behind his wife, son and daughter. His son and daughter are majors and\n\n                      the daughter got married. Son of the deceased is employed in abroad.\n\n                      Therefore, the deceased was running a Tea Stall with the support of some\n\n                      other employees. However, to establish the income of the deceased, the\n\n                      claimants are bound to produce some evidence or documents. In the absence\n\n                      of any such documents or evidence, it would be difficult for the Courts to\n\n                      arrive the actual income to grant just compensation.16. In the present case, the Tribunal considered the facts and\n\n                      circumstances. The Ex.P-1 FIR registered in Crime No.447/TN1/2014 dated\n\n                      25.08.2014 reveals that the driver of the car bearing Registration No.TN-10-\n\n                      AR-3007 has been shown as accused and the case has been registered underSections 279and304(A)IPC. Ex.P-2 is the copy of the rough sketch8/16http://www.judis.nic.inC.M.A.No.739 of 2020prepared by the Inspector of Police, Pondy Bazaar Traffic Investigation\n\n                      Wing, which shows the scene of occurrence. Ex.P-3 is the copy of the\n\n                      charge sheet filed against the driver of the car. The appellant-Insurance\n\n                      Company had not adduced any contra evidence to deny the accident. PW-2\n\n                      eye-witness deposed that the accident had occurred due to the rash and\n\n                      negligent act of the driver of the car. Accordingly, the Tribunal fixed the\n\n                      liability on the appellant-Insurance Company.17. As far as the quantum of compensation is concerned, Ex.P-\n\n                      14 is the Management Agreement between the deceased and one Mr.Raghu\n\n                      for running the Tea Stall at Kodambakkam High Road, Chennai. Ex.P-16 is\n\n                      the copy of the Bank Statement of the deceased from 02.01.2014 to\n\n                      31.01.2016. However, the Tribunal made a finding that the Bank Statement\n\n                      will not reveal the accurate monthly income of the deceased. PW-3, who\n\n                      claimed to be the Manager of the Tea Stall, deposed that the deceased was\n\n                      earning profit of Rs.25,000/- per month. However, they have not produced\n\n                      any Bank Statement to establish the said profit or the Income Tax Returns,\n\n                      so as to arrive some definite conclusion with reference to the monthly9/16http://www.judis.nic.inC.M.A.No.739 of 2020income the deceased.18. The Manager of the Tea Stall is the interested witness and\n\n                      is only an oral evidence. In the absence of any documentary evidence\n\n                      regarding the income of the deceased is insufficient and therefore, the\n\n                      Tribunal has considered the Bank Statement produced by the claimants and\n\n                      arrived a conclusion that the monthly income of the deceased can be fixed\n\n                      as Rs.11,000/- and accordingly, calculated the compensation.19. This Court has carefully considered the documents as well\n\n                      as the reasonings furnished in the award. Though the Manager of the Tea\n\n                      Stall deposed that the profit of the Tea Stall would be Rs.25,000/- per\n\n                      month, absolutely, there is no document to establish the same. There is no\n\n                      Income Tax Returns and there is no Bank Statement to establish such an\n\n                      amount of profit in the Tea Stall of the deceased. The transaction of the\n\n                      Bank Statement reveals that the income is not clear. The accurate monthly\n\n                      income of the deceased was not established even through the Bank\n\n                      Statement, Ex.P-16, which was produced from 02.01.2014 to 31.01.2016.10/16http://www.judis.nic.inC.M.A.No.739 of 202020. This apart, the Tea Stall was opened in the year 2008. Even\n\n                      as per the claimants, the accident occurred in the year 2014 and therefore,\n\n                      the deceased was running the Tea Stall for about 5-1/2 years. While-so, the\n\n                      claimants are bound to establish the monthly income of the deceased\n\n                      through some documents. In the absence of any such documents, this Court\n\n                      cannot interfere with the award passed by the Tribunal.21. As far as the adaptation of multiplier is concerned, the\n\n                      Tribunal has committed an error in applying the multiplier 13. In fact, the\n\n                      multiplier 9 would be applicable to the case of the respondents-claimants. In\n\n                      the event of applying the multiplier 9, the compensation would be reduced\n\n                      to a large extent and therefore, this Court is of the considered opinion that\n\n                      the monthly income fixed by the Tribunal as Rs.11,000/- shall be enhanced\n\n                      to Rs.12,000/-, so as to mitigate the total compensation.22. Undoubtedly, it is a fatal case and the deceased was aged\n\n                      about 59 years at the time of accident. However, wife of the deceased alone11/16http://www.judis.nic.inC.M.A.No.739 of 2020is the dependent. The deceased was running a Tea Stall. The claimants\n\n                      could not able to establish the monthly income of the deceased. The\n\n                      Tribunal has fixed the monthly income of the deceased as Rs.11,000/-.23. Under these circumstances, this Court is of the considered\n\n                      opinion that a sum of Rs.12,000/- shall be fixed as monthly income of the\n\n                      deceased and the multiplier 9 is to be applied for the purpose of calculating\n\n                      the compensation. Accordingly, the total compensation of Rs.14,18,500/-\n\n                      awarded by the Tribunal. Therefore, Rs.12,000/- must be a proper income to\n\n                      be fixed for the purpose of calculating the compensation. Thus, the income\n\n                      of the deceased fixed by the Tribunal as Rs.11,000/- per month is enhanced\n\n                      as Rs.12,000/- per month and the future prospects 10% of monthly income\n\n                      i.e., Rs.12,000/- x 10% = Rs.1,200/-. Thus, the future prospects would be\n\n                      Rs.13,200/- (Rs.12,000/- + Rs.1,200/-). Accordingly, one-third (1/3rd)\n\n                      personal expenses is to be deducted (Rs.13,200/- x 1/3 = Rs.4,400/-).24.    Accordingly,    the   quantum    of     compensation      of\n\n                      Rs.14,18,500/- granted by the Tribunal is modified as detailed hereunder:-12/16http://www.judis.nic.inC.M.A.No.739 of 2020Rs.Loss of income                          9,50,400/-\n                              (Rs.8,800/- x 12 x 9)\n                              Consortium                                40,000/-\n\n                              Love and Affection                        80,000/-\n                              (Rs.40,000/- x 2)\n\n                              Loss of Estate                            10,000/-\n                              Funeral Expenses                          15,000/-\n\n                              Transportation                            10,000/-\n\n                                                                    -------------------\n                                                                  Rs.11,05,400/-\n                                                                    ============Thus, the respondents/claimants are entitled to get the total compensation of\n\n                      Rs.11,05,400/- along with interest at the rate of 7.5% per annum.25. The appellant-Insurance Company is directed to deposit the\n\n                      modified award amount along with accrued interest at the rate of 7.5% per\n\n                      annum, if not already deposited, within a period of twelve weeks from the\n\n                      date of receipt of a copy of this judgment and on such deposit being made,\n\n                      the respondents-claimants are permitted to withdraw the total compensation\n\n                      of Rs.11,05,400/- along with interest at the rate of 7.5% per annum by filing\n\n                      appropriate applications before the Tribunal and the balance amount, if any,13/16http://www.judis.nic.inC.M.A.No.739 of 2020deposited shall be returned to the appellant-Insurance Company. The\n\n                      respective parties are permitted to file appropriate applications before the\n\n                      Tribunal and all the payments are to be made through RTGS.26. Accordingly, the judgment and decree dated 28.08.2019\n\n                      passed in M.C.O.P. No.97 of 2015 on the file of the learned V Judge, V\n\n                      Small Causes Court-cum-Motor Accidents Claims Tribunal, Chennai stands\n\n                      modified to the above extent and consequently, the C.M.A.No.739 of 2020\n\n                      stands allowed in part. However, there shall be no order as to costs.\n\n                      Consequently, connected miscellaneous petition is closed.24-08-2020\n                      Index : Yes/No.\n                      Internet: Yes/No.\n                      Speaking Order/Non-Speaking Order\n                      Svn14/16http://www.judis.nic.inC.M.A.No.739 of 2020To\n\n                      The V Judge,\n                      V Small Causes Court-cum-Motor Accidents Claims Tribunal,\n                      Chennai.15/16http://www.judis.nic.inC.M.A.No.739 of 2020S.M.SUBRAMANIAM, J.SvnCMA No.739 of 202024-08-202016/16http://www.judis.nic.in