C.M.A.No.2098 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A. No.2098 of 2021
1.Renuka
2.Minor Rubasri
3.Minor Dharshini
(Minors rep. By their natural guardian/
next friend, mother/1st appellant)
4.D.Vasantha .. Appellants
Vs.
1.Srinivasaiah
(No relief sought against the 1st respondent.
Hence, notice may be dispensed with)
2.The Divisional Manager,
The New India Assurance Company Ltd.,
Having Office at, C.S.I. Complex,
No.1, Officer Line,
Vellore – 1. .. Respondents
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https://www.mhc.tn.gov.in/judis
C.M.A.No.2098 of 2021
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 12.03.2021, made
in M.C.O.P. No.996 of 2016, on the file of the Magalir Neethi Mandram (Fast
Track Mahila Court) (Motor Accident Claims Tribunal), Vellore.
For Appellants : Mr.M.Sivakumar
For R2 : No appearance
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.] This Civil Miscellaneous Appeal has been filed by the appellants- claimants seeking enhancement of the compensation granted by the Tribunal in the award dated 12.03.2021, made in M.C.O.P. No.996 of 2016, on the file of the Magalir Neethi Mandram (Fast Track Mahila Court) (Motor Accident Claims Tribunal), Vellore.
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2.The appellants/claimants filed M.C.O.P. No.996 of 2016, on the file of the Magalir Neethi Mandram (Fast Track Mahila Court) (Motor Accident Claims Tribunal), Vellore, claiming a sum of Rs.50,00,000/- as compensation for the death of one Balaji who died in the accident that took place on 01.11.2016.
3.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 Car owned by the 1st respondent and directed the 2nd respondent-Insurance Company to pay a sum of Rs.15,67,584/- as compensation to the appellants.
4.Not being satisfied with the amounts awarded by the Tribunal, the appellants have come out with the present appeal. _____ 3/11 https://www.mhc.tn.gov.in/judis C.M.A.No.2098 of 2021
5.The learned counsel appearing for the appellants contended that at the time of accident, the deceased Balaji was doing Textile Business and was earning a sum of Rs.40,000/- per month. They have filed Ex.P8 – Income Tax Returns to show that the annual income of the deceased Balaji was Rs.3,38,318/-. The respondents have not filed any document to disprove the said document filed by the claimants. The Tribunal without considering the same, has erroneously fixed only a meagre sum of Rs.9,000/- per month as notional income and awarded compensation towards loss of dependency. The Tribunal failed to award any amount towards loss of estate. The amounts awarded by the Tribunal towards loss of consortium to the 1 st appellant and loss of love and affection to the appellants 2 to 4 are meagre and prayed for enhancement of the compensation.
6.The 1st respondent remained exparte before the Tribunal. Hence, notice to the 1st respondent is dispensed with.
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7.Though notice has been served on the 2nd respondent-Insurance Company and their name is printed in the cause list, there is no representation for them either in person or through counsel.
8.Heard the learned counsel appearing for the appellants and perused the entire materials available on record.
9.From the materials on record, it is seen that it is the case of the appellants that at the time of accident, the deceased Balaji was aged 45 years and doing Textile Business in the name and style 'Divya Textiles'. To prove the same, they have filed and marked Ex.P7 – letter pad of Divya Textiles and Ex.P8 – Income Tax Returns filed by the deceased. The Tribunal, considering the fact that the appellants have not examined any of the partners of the said Divya Textiles and on perusal of Ex.P8, it is not clear that the income received from the said business is lost, rightly rejected Exs.P7 and P8. In the absence of any evidence by the appellants to show that after the death of the deceased _____ 5/11 https://www.mhc.tn.gov.in/judis C.M.A.No.2098 of 2021 Balaji, the said Textiles Business is closed and there is complete loss to the family, this Court is not inclined to fix the monthly income based on Ex.P8 – Income Tax Returns filed by the deceased. The accident is of the year 2009. The Tribunal has fixed only a sum of Rs.9,000/- per month as notional income of the deceased. Considering the year of accident and nature of work done by the deceased Balaji, the notional income of the deceased, fixed by the Tribunal is enhanced to Rs.12,000/- per month. The Tribunal following the judgment of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others], erroneously granted 40% enhancement towards future prospects. The deceased was aged 45 years at the time of accident. As per the judgment of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) (referred to above), the appellants are entitled to only 25% enhancement towards future prospects. The Tribunal following the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme Court [Sarla Verma & others vs. Delhi Transport Corporation & another], applied the correct multiplier '14'. There are four dependents of the deceased. The Tribunal rightly deducted 1/4th towards personal expenses of the _____ 6/11 https://www.mhc.tn.gov.in/judis C.M.A.No.2098 of 2021 deceased. Hence, fixing the monthly income at Rs.12,000/-, granting 25% enhancement towards future prospects, applying multiplier '14' and after deducting 1/4th towards personal expenses of the deceased, the amount awarded by the Tribunal towards loss of dependency is modified to Rs.18,90,000/- {[Rs.12,000/- + Rs.3,000/- (25% of Rs.12,000/-)] x 12 x 14 x 3/4}. The Tribunal failed to award any amount towards loss of estate. Hence, a sum of Rs.15,000/- is awarded towards loss of estate. The amount of Rs.30,000/- granted by the Tribunal towards loss of consortium to the 1st appellant/wife of the deceased is meagre and hence, the same is enhanced to Rs.40,000/-. Apart from awarding loss of consortium to the 1st appellant, the Tribunal has awarded a sum of Rs.25,000/- each towards loss of love and affection to all the appellants. The 1st appellant/wife of the deceased is not entitled to any amount towards loss of love and affection. Hence, the same is set aside. The appellants 2 & 3, who are the children of the deceased Balaji are entitled to a sum of Rs.40,000/- each towards loss of parental consortium and 4th appellant, mother of the deceased Balaji is entitled to a sum of Rs.40,000/- _____ 7/11 https://www.mhc.tn.gov.in/judis C.M.A.No.2098 of 2021 towards loss of filial consortium. The amount 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. No Description Amount awarded Amount Award by Tribunal awarded by this confirmed or (Rs) Court (Rs) enhanced or granted
1. Loss of dependency 14,17,584/- 18,90,000/- Enhanced
2. Loss of consortium to 1st 30,000/- 40,000/- Enhanced appellant
3. Loss of love and 25,000/- - Set aside affection to 1st appellant
4. Loss of parental 50,000/- 80,000/- Enhanced consortium to appellants 2&3
5. Loss of filial consortium 25,000/- 40,000/- Enhanced to 4th appellant
6. Funeral expenses 15,000/- 15,000/- Confirmed
7. Transportation 5,000/- 5,000/- Confirmed
8. Loss of estate - 15,000/- Granted Total 15,67,584/- 20,85,000/- Enhanced by Rs.5,17,416/-
10.In the result, the appeal is partly allowed and the amount awarded by the Tribunal at Rs.15,67,584/- is enhanced to Rs.20,85,000/- together with interest at the rate of 7.5% per annum from the date of petition till the date of _____ 8/11 https://www.mhc.tn.gov.in/judis C.M.A.No.2098 of 2021 deposit. 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 eight weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.996 of 2016. On such deposit, the appellants 1 and 4 are permitted to withdraw their share of the award amount, now determined by this Court, along with proportionate interest and costs, as per the ratio of apportionment fixed by the Tribunal, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. The shares of the minor appellants 2 and 3 are directed to be deposited in any one of the Nationalized Bank, till the minors attain majority. The 1st appellant, mother of the minor appellants 2 and 3 is permitted to withdraw the accrued interest, once in three months for the welfare of the minor appellants 2 and 3. The learned counsel appearing for the appellants is directed to pay the Court fee on the enhanced award amount, if any. No costs.
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and V.SIVAGNANAM, J.
(gsa) To
1.The Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court) (Motor Accident Claims Tribunal), Vellore.
2.The Section Officer, V.R Section, High Court, Madras.
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