Madras High Court

Saraswathi vs K.Nagaraj on 27 April, 2021

                                                                          C.M.A.No.3646 of 2012

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 27.04.2021

                                                       CORAM:

                                   THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                C.M.A.No.3646 of 2012

                     1. Saraswathi
                     2. Maheswari
                     3. Minor Manikandan
                     4. Minor Ammu @ Jamuna
                     Minors 3 & 4 rep. by their
                     next friend/guardian Saraswathi                       ... Appellants

                                                       Versus
                     1. K.Nagaraj
                     2. K.S.Durai
                     3. The Branch Manager,
                        M/s. Reliance General Insurance
                                  Co-Ltd.,
                        Sri Lakshmi complex,
                        Omalur Main Raod,
                        Swarnapuri,
                        Salem – 4.
                     4. Kanthayee                                          ... Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, against the order and decree dated 03.09.2012 made in
                     M.C.O.P.No.188 of 2010 on the file of the Motor Accidents Claims Tribunal
                     Sub Court, Sankari.


                     Page 1 of 10


https://www.mhc.tn.gov.in/judis/
                                                                               C.M.A.No.3646 of 2012

                                          For Appellant      : Mr.Suganthan
                                                               For Mr.N.Manokaran

                                          For Respondents
                                                For R3    : Mr.C.Bhuvanasundari
                                                For R1    : No appearance

                                                   JUDGMENT

This appeal is laid as against the judgment and decree dated

03.09.2012 passed by the learned Subordinate Judge, Motor Accident

Claims Tribunal, Sankari, in M.C.O.P.No.188 of 2010, thereby awarded the

compensation to the tune of Rs.5,38,000/-

2. For the sake of convenience, the parties are referred to

hereunder according to their litigative status before the Tribunal.

3. The case of the claimants is that on 27.02.2010, when the

deceased was travelling as a pillion rider in a bicycle driven by his friend on

the left side of the road, the first respondent's driver drove the lorry in rash

and negligent manner and hit the back side of the cycle resulting which the

deceased fell down and the lorry also capsized over the deceased. Due to

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3646 of 2012

which, the deceased sustained grievous injuries and immediately died. He

was a heavy vehicle driver and aged about 45 years. He was earning salary

of Rs.12,000/- per month. The first claimant is the wife of the deceased and

other claimants are their children. Hence they filed claim petition seeking

compensation at Rs.12,50,000/-.

4. Resisting the same, the third respondent filed counter by stating

that only due to the negligent driving of the deceased and the cyclist, the

accident took place as such, the third respondent is not at all liable to pay

any compensation to the claimants. The third respondent also denied the

age, salary and avocation of the deceased and sought for dismissal of the

claim petition.

5. On the side of the claimants, they examined P.W.1 to P.W.3 and

marked Ex.A.1 to Ex.A.11. On the side of the respondents, no one was

examined and no material has been marked as exhibit. On the basis of the

evidence available on records and also considering the submission made by

the learned counsel appearing on either side, the Tribunal awarded a sum of

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3646 of 2012

Rs.5,38,000/- as compensation payable by the respondents 1 to 3 jointly or

severally. Being not satisfied with the quantum of the compensation

awarded by the Tribunal, the claimants came forward with the present

appeal for enhancement of the award amount.

6. The learned counsel appearing for the appellants/claimants

submits that the deceased was a heavy vehicle driver and he was working in

V.M.M. Transport owned by one Sellamuthu. He was drawing a sum of

Rs.12,000/- per month as salary. The co-driver of the deceased was

examined as P.W.3 and he categorically deposed that the deceased was a

heavy vehicle driver and he was drawing the salary of Rs.12,000/- per

month. Even then, the Tribunal had fixed the salary of the deceased at

Rs.4,500/- and also wrongly applied the multiplier of 13 instead of 14, since

the deceased was died at the age of 45 years. The fourth respondent is none

other than the mother of the deceased, as such there are totally five

claimants and the Tribunal ought to have deducted 1/4th of the income for

the personal expenses for the deceased. Whereas the Tribunal deducted 1/3rd

towards personal expenses for the deceased. The Tribunal also failed to

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3646 of 2012

consider the future prospects of the deceased and therefore, he prayed for

enhancement of the award amount.

7. Per contra, the learned counsel appearing for the third

respondent would submit that the age of the deceased is 46 years and the

Tribunal rightly adopted the multiplier method of 13. Though the claimants

examined P.W.3, no documentary evidence was produced to prove that the

deceased was working as heavy vehicle driver in the V.M.M. Transport

under one Sellamuthu. Therefore, the Tribunal has rightly awarded the

compensation and it doesn't require any enhancement. Therefore he prayed

for dismissal of the appeal.

8. Heard Mr.Suganthan, learned counsel appearing for the

claimants and Ms.C.Bhuvana Sundari, learned counsel appearing for the

third respondent.

9. The deceased was aged about 45 years and on 27.02.2010, he

was met with an accident due to which he sustained grievous injuries and

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3646 of 2012

died. The liability is rightly fixed as against the third respondent. In respect

of the quantum is concerned, the income of the deceased fixed at Rs.4,500/-

by the Tribunal, whereas P.W.3 categorically deposed that the deceased was

co-employee working in V.M.M. Transport owned by one Sellamuthu. The

deceased was earning the salary of Rs.12,000/- per month including batta.

10. The Tribunal also failed to consider the future prospect of the

deceased and deducted 1/3rd for the deceased's personal expenditure.

Whereas there are four claimants and the fourth respondent is none other

than the mother of the deceased as such, the Tribunal ought to have

deducted 1/4th towards personal expenses of the deceased. Therefore, this

Court feels that the income of the deceased has to be fixed at Rs.7,000/- per

month and deduction to be made 1/4th with 25% of future prospect. More

over, the multiplier should be adopted at 14, since the age of the deceased

was 45 years at the time of accident. Accordingly, the loss of income for the

deceased is calculated as follows :-

= [(Rs.7,000/- + 25%) -1/4th income] X 12 X14

= (8750-2187.50) X 12 X14

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3646 of 2012

= 6562.50 X 12 X 14 = 11,02,500

Accordingly, a sum of Rs.11,02,500/- has to be awarded under the head of

loss of income to the claimants.

11. Apart from that the Tribunal awarded very low compensation

under the heads of loss of estate, funeral expenses and consortium. This

Court is inclined to grant a sum of Rs.15,000/- towards loss of estate, a sum

of Rs.15,000/- towards funeral expenses and a sum of Rs.40,000/- towards

consortium. Since amount awarded under the head of consortium, no need

to pay any compensation under the head of love and affection. Accordingly

the compensation awarded by the Tribunal stands modified as under :-

                      Sl.No               Heads             Awarded by the       Awarded by this
                                                              Tribunal               Court
                          1        Loss of Pecuniary           4,68,000             11,02,500
                          2        Loss of estate                 Nil                 15,000
                          3        Funeral expenses             10,000                15,000
                          4        Consortium                   10,000                40,000
                          5        Transportation               10,000                10,000
                          6        Love and affection           40,000                  Nil
                                                    Total      5,38,000             11,82,500






https://www.mhc.tn.gov.in/judis/
                                                                                     C.M.A.No.3646 of 2012

12. In the result the Civil Miscellaneous Appeal is partly allowed

as follows:-

(i) The award passed by the Tribunal is enhanced from Rs.4,52,000/-

to Rs.11,82,500/-

(ii) The award amount will carry the interest at the rate of 7.5% per

annum from the date of the claim petition till the date of deposit.

(iii) The claimants and the fourth respondent are entitled to get the modified award amount as follows:-

First claimant - Rs. 5,00,000/-

Claimants 2 to 4 - Rs. 1,50,000/- each Fourth respondent - Rs. 1,82,000/-

(iv) The third respondent is directed to deposit the award amount,

less the amount, if any, already deposited, along with accrued interest within

a period of six weeks from the date of receipt of copy of this Judgment.