Madras High Court
Saraswathy vs Azeez Basha on 27 April, 2021
CMA No.4814 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 27.04.2021
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
and
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
CMA.No.4814 of 2019
1. Saraswathy
2. Raguraman …. Appellants
Versus
1. Azeez Basha
2. United India Insurance Co. Ltd.,
No.134, Greams Road
IV Floor, Anna Salai
Chennai – 600 006. …. Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act 1988, against the Judgment and Decree dated 31.07.2019 made
in MACTOP No.6401 of 2016 on the file of the Motor Accidents Claims
Tribunal (Special Sub Court No.1, Small Causes Court)), Chennai.
For Appellant : Mrs.A.N.Subadra
for
M/s.K.Malar
Respondent-1 : Exparte
For Respondent-2 : Mr.C.Ramesh Babu
1/9
https://www.mhc.tn.gov.in/judis/
CMA No.4814 of 2019
JUDGMENT
(Judgment of the Court was delivered by S.KANNAMMAL, J)
Not being satisfied with the quantum of compensation awarded by the
Tribunal in and by award dated 31.07.2019 passed in MACTOP No.6401 of
2016 on the file of Motor Accident Claims Tribunal, (Special Sub Court-I),
Small Causes Court, Chennai, the present appeal has been filed by the
claimants seeking enhancement of compensation amount.
2. It is the case of the appellants/claimants before the Tribunal that
on 15.09.2016 at about 7.30 p.m, while the deceased was buying foods at
Mint Street, opposite to Government Press, Chennai, an auto came from south
to north direction, in a rash and negligent manner, dashed against the
deceased. Immediately after the accident, the deceased was admitted in
Stanley Medical College Hospital, Chennai, and died on 22.09.2016. The
claimants are the wife and son of the deceased, claiming compensation of
Rs.50,00,000/- for the death of the deceased Mr.Balamuralikrishnan.
3. The second respondent herein/Insurance Company filed counter
statement disputing the manner of accident, age and occupation of the
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CMA No.4814 of 2019
deceased, Insurance Policy and prayed for dismissal of the claim petition.
4. In order to prove the claim, on the side of appellants, PW.1 to 3
were examined and Exs.P1 to P10 were marked; on the side of Insurance
Company, RW.1 to RW.4 were examined and Exs.R1 to R9 were marked.
5. After considering the entire materials available on record, the
Tribunal came to the conclusion that the accident had occurred due to the rash
and negligent driving of the driver of the offending vehicle - auto insured with
the second respondent Insurance Company and owned by the first respondent
herein. The Tribunal had passed the award for a total sum of Rs.14,00,000/-
payable by the second respondent Insurance Company at first instance with
liberty to recover the same from the first respondent, since it was proved that
the driver of the auto did not possess valid driving licence at the time of
accident. Challenging the same, the present appeal has been filed by the
claimants for enhancement of compensation amount.
6. The learned counsel for the appellants/claimants submitted that
the Tribunal without considering the age, income and occupation of the
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CMA No.4814 of 2019
deceased, passed an award of lesser compensation for Rs.14,00,000/- as
against the claim amount of Rs.50,00,000/-. It is further submitted that the
Tribunal has failed to consider Ex.P7, the salary certificate of the deceased. It
is submitted that the deceased was working as an accountant at Sri Kakumani
Authikesavalu Chetty's Charities and was earning Rs.2,06,000/- per annum,
but the Tribunal has erroneously fixed the income of the deceased at
Rs.10,000/- per month. The learned counsel for the appellants would further
submit that the compensation awarded by the Tribunal under the head of loss
of dependency, loss of consortium, loss of estate are very meagre and sought
for enhancement of compensation.
7. Per contra, the learned counsel for the Insurance Company made
his submissions supporting the award passed by the Tribunal. Pertaining to
the salary certificate Ex.P7, the Tribunal had observed that in Ex.P7 only the
annual income is mentioned and the date of appointment, years of service and
the deductions made in the salary are not mentioned. The Tribunal has also
observed that no substantial evidence, such as bank passbook entry for the
credit of salary amount or cash voucher slips signed by the deceased were
produced to prove the income of the deceased. Hence the Tribunal has taken
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CMA No.4814 of 2019
a notional income of Rs.10,000/- as monthly income of the deceased.
8. The learned counsel for the appellants would submit that since
the deceased worked as an accountant, atleast Rs.15,000/- to be taken as
monthly income for calculating the loss of income to the dependents.
9. Though no witness was examined on the side of claimants to
prove the income of the deceased, considering the fact that the accident is of
the year 2016, we are of the view that an amount of Rs.15,000/- may be fixed
as monthly income of the deceased for calculating the loss of income to the
dependents. Taking Rs.15,000/- as monthly income, 25% ie., Rs.3,750/-is to
be added towards future prospects that will come to Rs.18,750/-. From that,
1/3rd amount ie., Rs.6,250/- (Rs.18,750 x 1/3) is to be deducted towards
personal expenses of the deceased. Therefore, the monthly contribution by
the deceased to his family would be Rs.12,500/- and the annual contribution
would be Rs.12,500/- x 12 = Rs.1,50,000/-. By applying the correct multiplier
13, the loss of income to the dependents comes to Rs.19,50,000/-
(Rs.1,50,000/- x 12).
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CMA No.4814 of 2019
10. The Tribunal has awarded a sum of Rs.40,000/- towards loss of
consortium and Rs.15,000/- towards loss of estate and Rs.15,000/- towards
funeral expenses, which in the considered opinion of this Court, are just and
reasonable and accordingly, the same are confirmed.
11. Apart from that, the Tribunal has awarded only Rs.25,000/- for
loss of love and affection and an amount of Rs.15,000/- to be enhanced under
the head of loss of love and affection. Further, for the transport charges, a
reasonable amount of Rs.15,000/- to be fixed as against Rs.5,000/- awarded
by the Tribunal.
12. Accordingly, the compensation awarded by the Tribunal would
stand modified in different heads as under :-
Heads Amount Amount modified by this
awarded by the Court (Rs.)
Tribunal (Rs.)
Loss of Dependency 13,00,000 19,50,000
Loss of Consortium 40,000 40,000
Loss of Love and Affection 25,000 40,000
Loss of estate 15,000 15,000
Transport charges 5,000 15,000
Funeral expenses 15,000 15,000
Total 14,00,000 20,75,000
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CMA No.4814 of 2019
13. In the result, this Civil Miscellaneous Appeal is partly allowed,
enhancing the amount of compensation awarded by the Tribunal from
Rs.14,00,000/- to Rs.20,75,000/- (Rupees Twenty Lakhs and Seventy Five
Thousand only) with interest at 7.5% per annum from the date of claim
petition till the date of realization, excluding the default period, if any. The
entire award amount is payable by the second respondent/Insurance Company
at first instance with liberty to recover the same from the first respondent
without filing any petition. Out of the total compensation of Rs.20,75,000/-,
the first claimant/wife of the deceased is entitled to a sum of Rs.15,00,000/-
(Rupees fifteen lakhs only) together with proportionate interest and costs
awarded in MACTOP and the second claimant/son of the deceased is entitled
to a sum of Rs.5,75,000/- (Rupees five lakhs and seventy five thousand only)
with proportionate interest. No costs in this CMA.
14. The second respondent/Insurance Company is directed to deposit
the entire award amount together with interest at 7.5% p.a. as assessed by this
Court, less the amount, if any, already deposited to the credit of MACTOP
No.6401 of 2016 on the file of the Motor Accidents Claims Tribunal
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CMA No.4814 of 2019
(Special Sub Court No.1, Small Causes Court)), Chennai, within a period of
four weeks from the date of receipt of a copy of this Judgment. On such
deposit being made, the Tribunal is directed to transfer the award amount
directly to the bank account of the appellants, through RTGS within a period
of two weeks thereafter. The requisite Court fee, if any, has to be paid by the
appellants before receiving the copy of this Judgment.
[R.P.S.,J] [S.K.,J]
27.04.2021
mra
Index : Yes/No
Internet : Yes/No
Speaking/Non speaking order
To
1. The Special Sub Judge No.1
Motor Accidents Claims Tribunal
(Small Causes Court), Chennai.
2. The Section Officer,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
CMA No.4814 of 2019
R.SUBBIAH, J.
and
S.KANNAMMAL, J.
mra
CMA.No.4814 of 2019
27.04.2021
https://www.mhc.tn.gov.in/judis/
