Madras High Court
K.Shakila vs M/S.Niruban Wood Furniture on 3 December, 2021
C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. Nos.3085, 3086, 3472 & 3605 of 2014
and M.P.Nos.1, 1 of 2014
C.M.A.No.3085 of 2014
1.K.Shakila
2.P.Kothandaraman .. Appellants
Vs.
1.M/s.Niruban Wood Furniture,
No.1/1, 6th Street,
Gopal Reddy Nagar,
Korukkupet,
Chennai.
2.M/s.New India Assurance Co. Ltd.,
251, T.H. Road,
Thiruvottiyur,
Chennai 600 021. .. Respondents
C.M.A.No.3472 of 2014
M/s.New India Assurance Co. Ltd.,
251, T.H. Road,
Thiruvottiyur, Chennai 600 021. .. Appellant
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
Vs.
1.K.Shakila
2.P.Kothandaraman
3.M/s.Niruban Wood Furniture,
No.1/1, 6th Street,
Gopal Reddy Nagar,
Korukkupet,
Chennai. .. Respondents
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the judgment and decree dated
21.04.2014, made in M.C.O.P.No.1786 of 2010, on the file of the Chief
Judge, Small Causes Court, (Motor Accident Claims Tribunal), Chennai.
(In C.M.A.No.3085/2014)
For Appellants : Mr.F.Terry Chella Raja
for M/s.V.Velu
For Respondents : No appearance (For R1)
Mr.J.Chandran (For R2)
(In C.M.A.No.3472/2014)
For Appellant : Mr.J.Chandran
For Respondents : Mr.F.Terry Chella Raja (For RR1 & 2)
for M/s.V.Velu
No appearance (For R3)
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
C.M.A.No.3086 of 2014
1.Jothi
2.Varadharajan
3.Rajesh
4.Minor Saravanan
(Rep. By his mother, Jothi as NG & NF) .. Appellants
Vs.
1.M/s.Niruban Wood Furniture,
No.1/1, 6th Street,
Gopal Reddy Nagar,
Korukkupet,
Chennai.
2.M/s.New India Assurance Co. Ltd.,
251, T.H. Road,
Thiruvottiyur, Chennai 600 021. .. Respondents
C.M.A.No.3605 of 2014
M/s.New India Assurance Co. Ltd.,
251, T.H. Road,
Thiruvottiyur,
Chennai 600 021. .. Appellant
Vs.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
1.Jothi
2.Varadharajan
3.Rajesh
4.Minor Saravanan
(Rep. By his mother, Jothi as NG & NF)
5.M/s.Niruban Wood Furniture,
No.1/1, 6th Street,
Gopal Reddy Nagar,
Korukkupet,
Chennai. .. Respondents
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the judgment and decree dated
21.04.2014, made in M.C.O.P.No.1787 of 2010, on the file of the Chief
Judge, Small Causes Court, (Motor Accident Claims Tribunal), Chennai.
(In C.M.A.No.3086/2014)
For Appellants : Mr.F.Terry Chella Raja
for M/s.V.Velu
For Respondents : No appearance (For R1)
Mr.J.Chandran (For R2)
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
(In C.M.A.No.3605/2014)
For Appellant : Mr.J.Chandran
For Respondents : Mr.F.Terry Chella Raja (For R1 to R4 )
for M/s.V.Velu
COMMON JUDGMENT
(The matter is heard through "Video Conferencing/Hybrid mode".)
C.M.A. No.3085 of 2014 is filed for enhancement of the compensation
and C.M.A. No.3472 of 2014 is filed to set aside the award dated 21.04.2014,
made in M.C.O.P.No.1786 of 2010, on the file of the Chief Judge, Small
Causes Court, (Motor Accident Claims Tribunal), Chennai.
C.M.A. No.3086 of 2014 is filed for enhancement of the compensation
and C.M.A. No.3605 of 2014 is filed to set aside the award dated 21.04.2014,
made in M.C.O.P.No.1787 of 2010, on the file of the Chief Judge, Small
Causes Court, (Motor Accident Claims Tribunal), Chennai.
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
2.All the appeals arise out of the same accident and same award and
hence, they are disposed of by this common judgment.
3.The parties are referred to as per their rank in the claim petition, for
the sake of convenience.
4.The claimants filed M.C.O.P.Nos.1786 & 1787 of 2010, on the file of
the Chief Judge, Small Causes Court, (Motor Accident Claims Tribunal),
Chennai, claiming a sum of Rs.15,00,000/- each as compensation for the
death of one Sathish and Madan @ Loganathan respectively, who died in the
accident that took place on 14.04.2010.
5.According to the claimants, on the date of accident, when deceased
Sathish was riding the Motorcycle bearing Registration No.TN-05-U-2830 on
EC Road, Therkupamu, Kancheepuram District along with deceased Madan
@ Loganathan as pillion rider, the driver of the Tata Ace bearing Registration
No.TN-22-AM-3054, owned by the 1st respondent and insured with the 2nd
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
respondent drove the Lorry in a rash and negligent manner, dashed against
the Motorcycle and thus, the accident occurred. In the accident, deceased
Sathish and Madan @ Loganathan sustained multiple grievous injuries and
died on the spot. The accident occurred only due to rash and negligent driving
by driver of the Tata Ace owned by the 1st respondent and hence, the
claimants in both the claim petitions filed the said claim petitions, claiming
compensation for the death of Sathish and Madan @ Loganathan, against the
respondents as owner and insurer of the offending vehicle respectively.
6.The 1st respondent, owner of the Tata Ace, remained exparte before
the Tribunal.
7.The 2nd respondent-Insurance Company filed separate counter
statements and denied all the averments made by the claimants in the claim
petitions. According to the 2nd respondent, the accident occurred only due to
contributory negligence of the deceased Sathish, who did not drive the
Motorcycle properly. Moreover, the 1st respondent, who is the alleged owner
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
of the Tata Ace, has not reported about the alleged accident to them and has
not furnished the details regarding the Registration Certificate, Fitness
Certificate, driving license, permit and insurance. In the absence of any
particulars, the 2nd respondent-Insurance Company denied the occurrence of
accident on 14.04.2010 and also denied the possession of valid and effective
driving license by both the driver of the Tata Ace as well as Sathish, at the
time of accident. The claim petitions are bad for non-joinder of insurer of the
Motorcycle. In any event, the claimants in both the claim petitions have to
prove the age, avocation and income of the deceased persons to claim
compensation. The total compensation claimed by the claimants are excessive
and prayed for dismissal of the claim petitions.
8.Before the Tribunal, the 1st claimant in both the claim petitions
examined themselves as P.W.1 and P.W.2, one Kumar, eye-witness as P.W.3,
one Antony Prabhu, employer of Lee Waterina Hotel as P.W.4, one Anandan,
Proprietor of Mano Oxys as P.W.5 and marked 13 documents as Exs.P1 to
P13. The 2nd respondent did not let in any oral and documentary evidence.
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
9.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 Tata Ace owned by the 1 st respondent and directed
the respondents 1 and 2 to jointly and severally pay a sum of Rs.5,80,000/- as
compensation to the claimants in M.C.O.P.No.1786 of 2010 and a sum of
Rs.5,80,000/- as compensation to the claimants 1 and 2 in M.C.O.P.No.1787
of 2010.
10.Challenging the liability fixed on the 2nd respondent by the Tribunal
in the common award dated 21.04.2014, made in M.C.O.P.Nos.1786 & 1787
of 2010, the 2nd respondent - Insurance Company has filed C.M.A. Nos.3472
& 3605 of 2014 and not being satisfied with the amounts awarded by the
Tribunal, the claimants have filed C.M.A.Nos.3085 and 3086 of 2014,
seeking enhancement of compensation.
11.Though the 2nd respondent-Insurance Company raised various
grounds with regard to negligence, at the time of arguments, the learned
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
counsel appearing for the 2nd respondent restricted his arguments only with
regard to quantum of compensation awarded by the Tribunal in both the claim
petitions. The learned counsel appearing for the 2nd respondent contended that
the Tribunal having rejected the evidence of P.W.4 and P.W.5 and salary
certificates produced by the claimants in both the claim petitions, erred in
excessively fixing the monthly income at Rs.5,000/-. The amounts awarded
by the Tribunal under different heads are excessive. The claimants have not
made out any case for enhancement of compensation and prayed for dismissal
of C.M.A.Nos.3085 & 3086 of 2014 and allowing C.M.A.Nos.3472 and 3605
of 2014.
12.Per contra, the learned counsel appearing for the claimants in
M.C.O.P.No.1786 of 2010 contended that the deceased Sathish was working
as a Server and was earning a sum of Rs.6,000/- per month along with
Rs.4,000/- as incentive. The claimants in M.C.O.P.No.1786 of 2010 examined
P.W.4-employer and marked Exs.P4 and P11 – salary certificates to prove the
same. The deceased Madan @ Loganathan was working as a Electrician and
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
was earning a sum of Rs.9,000/- per month. The claimants in
M.C.O.P.No.1787 of 2010 examined P.W.5 – employer and marked Ex.P13-
salary certificate to prove the same. The Tribunal fixed the monthly income of
the deceased in both the claim petitions as Rs.5,000/- and granted meagre
amount towards loss of pecuniary benefits. The amounts awarded by the
Tribunal towards transportation, loss of love and affection and funeral
expenses in both the claim petitions are meagre. The Tribunal failed to award
any amount towards loss of estate. The total compensation awarded by the
Tribunal are meagre and prayed for enhancement of compensation granted in
both the claim petitions and dismissal of C.M.A.Nos.3472 and 3605 of 2014,
filed by the 2nd respondent-Insurance Company.
13.Though notice has been served on the 1st respondent in
C.M.A.Nos.3085 & 3086 of 2014 and 3rd respondent in C.M.A.No.3472 of
2014 and their name is printed in the cause list, there is no representation for
them either in person or through counsel.
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
14.Heard the learned counsel appearing for the claimants as well as the
2nd respondent – Insurance Company in all the Civil Miscellaneous Appeals
and perused the entire materials available on record.
M.C.O.P.No.1786 of 2010 [C.M.A.Nos.3085 and 3472 of 2014]-
15.From the materials on record, it is seen that though the claimants
have claimed that the deceased Sathish was aged 20 years at the time of
accident, working as a Server in Lee Waterina Hotel and was earning a sum
of Rs.9,000/- per month, P.W.1-mother of the deceased deposed that her son
was earning a sum of Rs.6,000/- per month along with an incentive of
Rs.4,000/- per month. Before the Tribunal, the claimants examined P.W.4 –
Antony Prabhu, employer of the deceased and marked Exs.P4 and P11 –
salary certificates to prove the same. P.W.4 deposed that the deceased Sathish
was working in the said Hotel as Server and was earning a sum of Rs.6,000/-
per month, apart from receiving Rs.2,000/- as tips. In view of the
contradiction in the averments in the claim petition and the oral and
documentary evidence let in by the claimants, the Tribunal did not accept the
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
evidence of P.W.4 and fixed the notional income of the deceased at Rs.5,000/-
per month. The accident is of the year 2010. The notional income fixed by the
Tribunal is meagre. Considering the year of accident, a sum of Rs.7,500/- per
month is fixed as notional income of the deceased Sathish. The deceased was
a bachelor, aged 20 years at the time of accident. The Tribunal rightly applied
the multiplier '18' considering the age of the deceased, deducted 50% towards
personal expenses, but failed to grant any enhancement towards future
prospects. Considering the age of deceased, as per 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], the claimants are entitled
to 40% enhancement towards future prospects. By fixing the monthly income
at Rs.7,500/-, granting 40% enhancement towards future prospects, applying
multiplier '18' and after deducting 50% towards personal expenses, the
amounts granted by the Tribunal for loss of pecuniary benefits is modified to
Rs.11,34,000/- {[Rs.7,500/- + Rs.3,000/- (40% of Rs.7,500/-)] x 12 x 18 x
1/2}. The Tribunal has awarded meagre amount of Rs.25,000/- towards loss
of love and affection to the parents of the deceased, who are the claimants.
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
The claimants are entitled to Rs.40,000/- towards loss of love and affection.
The amount of Rs.10,000/- awarded by the Tribunal towards funeral expenses
is meagre and hence, the same is enhanced to Rs.15,000/-. The Tribunal failed
to award any amount towards loss of estate. The claimants are entitled to
Rs.15,000/- towards loss of estate. The amount of Rs.5,000/- granted towards
transportation charges is just and reasonable and hence, the same is
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 pecuniary 5,40,000/- 11,34,000/- Enhanced
benefits
2. Loss of love and 25,000/- 40,000/- Enhanced
affection to the
claimants 1 and 2
3. Funeral expenses 10,000/- 15,000/- Enhanced
4. Transportation 5,000/- 5,000/- Confirmed
5. Loss of estate - 15,000/- Granted
Total 5,80,000/- 12,09,000/- Enhanced by
Rs.6,29,000/-
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
M.C.O.P.No.1787 of 2010 [C.M.A.Nos.3086 and 3605 of 2014]-
16.From the materials on record, it is seen that the claimants claim that
the deceased Madan @ Loganathan was aged 21 years at the time of accident,
working as Electrician and was earning a sum of Rs.9,000/- per month.
Before the Tribunal, the claimants examined P.W.5 – Anandan, Proprietor of
Mano Oxys, to prove the same. P.W.5 deposed that the deceased Madan @
Loganathan was working under him and was earning a sum of Rs.10,000/-
per month. In view of the contradiction in the averments in the claim petition
and the oral and documentary evidence let in by the claimants, the Tribunal
did not accept the evidence of P.W.5 and fixed the notional income of the
deceased at Rs.5,000/- per month. The accident is of the year 2010. The
notional income fixed by the Tribunal is meagre. Considering the year of
accident, a sum of Rs.7,500/- per month is fixed as notional income of the
deceased Madan @ Loganathan. The deceased was a bachelor, aged 21 years
at the time of accident. The Tribunal rightly applied the multiplier '18'
considering the age of the deceased, deducted 50% towards personal
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
expenses, but failed to grant any enhancement towards future prospects.
Considering the age of deceased, as per 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], the claimants are entitled to 40% enhancement
towards future prospects. By fixing the monthly income at Rs.7,500/-,
granting 40% enhancement towards future prospects, applying multiplier '18'
and after deducting 50% towards personal expenses, the amounts granted by
the Tribunal for loss of pecuniary benefits is modified to Rs.11,34,000/-
{[Rs.7,500/- + Rs.3,000/- (40% of Rs.7,500/-)] x 12 x 18 x 1/2}. The Tribunal
has awarded meagre amount of Rs.25,000/- towards loss of love and affection
to the parents of the deceased, who are the claimants 1 and 2. The claimants 1
and 2 are entitled to Rs.40,000/- towards loss of love and affection. The
amount of Rs.10,000/- awarded by the Tribunal towards funeral expenses is
meagre and hence, the same is enhanced to Rs.15,000/-. The Tribunal failed
to award any amount towards loss of estate. The claimants 1 and 2 are entitled
to Rs.15,000/- towards loss of estate. The amount of Rs.5,000/- granted
towards transportation charges is just and reasonable and hence, the same is
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
confirmed. The Tribunal considering the fact the claimants 3 and 4 are the
younger brothers of the deceased who are not dependants of the deceased,
rightly dismissed the claim petition as against the claimants 3 and 4 and
awarded compensation to the claimants 1 and 2 who are the parents of the
deceased Madan @ Loganathan. 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 pecuniary 5,40,000/- 11,34,000/- Enhanced
benefits
2. Loss of love and 25,000/- 40,000/- Enhanced
affection
3. Funeral expenses 10,000/- 15,000/- Enhanced
4. Transportation 5,000/- 5,000/- Confirmed
5. Loss of estate - 15,000/- Granted
Total 5,80,000/- 12,09,000/- Enhanced by
Rs.6,29,000/-
17.In the result, C.M.A.Nos.3472 and 3605 of 2014 are dismissed and
C.M.A.Nos.3085 and 3086 of 2014 are partly allowed. The amounts awarded
by the Tribunal at Rs.5,80,000/- each are enhanced to Rs.12,09,000/- each,
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
along with interest at the rate of 7.5% per annum from the date of petition till
the date of deposit. The respondents 1 and 2 are jointly and severally directed
to deposit the award amounts now determined by this Court along with
interest and costs, 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.Nos.1786 and 1787 of 2010
respectively. On such deposit, the claimants in M.C.O.P.No.1786 of 2010 and
claimants 1 and 2 in M.C.O.P.No.1787 of 2010 are permitted to withdraw
their respective share of the award amounts, now determined by this Court,
along with proportionate interest and costs, after adjusting the amount, if any,
already withdrawn, by filing necessary applications before the Tribunal.
C.M.A.No.3086 of 2014 is dismissed as against the claimants 3 and
4/appellants 3 and 4 herein. Consequently, connected Miscellaneous Petitions
are closed. No costs.
03.12.2021
Index : Yes /No
Speaking Order : Yes/No
gsa
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
To
1.The Chief Judge,
Small Causes Court,
(Motor Accident Claims Tribunal),
Chennai.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
V.M.VELUMANI, J.,
gsa
C.M.A.Nos.3085, 3086, 3472 & 3605 of 2014
03.12.2021
https://www.mhc.tn.gov.in/judis
