Madras High Court
Andal vs J.Mohan Kumar on 10 December, 2021
C.M.A.No.536 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.536 of 2014
1.Andal
2.Karpagan
3.Selvi
4.S.Santhi
5.P.Sakthivel
6.V.Sathya
7.A.Priya
8.P.Baskar .. Appellants
Vs.
1.J.Mohan Kumar
2.United India Insurance Company Limited,
No.38, Anna Salai,
Chennai – 600 002. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated 18.11.2005
1/10
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C.M.A.No.536 of 2014
made in M.C.O.P.No.290 of 2004 on the file of the Motor Accident Claims
Tribunal, IV Small Causes Court, Chennai.
For Appellants : Mr.F.Terry Challa Raja
for Ms.M.Malar
For R2 : Ms.B.Vijayakamala
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”.)
This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the Tribunal in the award dated 18.11.2005 made in
M.C.O.P.No.290 of 2004 on the file of the Motor Accident Claims Tribunal,
IV Small Causes Court, Chennai.
2.The appellants are the claimants in M.C.O.P.No.290 of 2004 on the
file of the Motor Accident Claims Tribunal, IV Small Causes Court, Chennai.
They filed the above said claim petition, claiming a sum of Rs.6,00,000/- as
compensation for the death of one Baluchamy, who died in the accident that
took place on 31.10.2003.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent riding by
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C.M.A.No.536 of 2014
the rider of the motorcycle belonging to 1st respondent and directed the 2nd
respondent-Insurance Company to pay a sum of Rs.2,15,730/- 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 seeking enhancement of
compensation.
5.The learned counsel appearing for the appellants contended that the
Tribunal failed to award adequate compensation for the death of one
Baluchamy. The Tribunal failed to appreciate the oral and documentary
evidence let in by the appellants. The deceased was aged 55 years at the time
of accident and the appellants have produced Ex.P6/discharge summary and
Ex.P7/Accident Register to that effect. The Tribunal has erroneously taken the
age of the deceased as 62 years as per Ex.P2/postmortem certificate. The
Tribunal without considering Exs.P6 & P7, erroneously relied on the age
mentioned in Ex.P2/postmortem certificate and applied multiplier '5' taking into
consideration the age of the deceased as 62 years. The deceased was working
as Watchman at Nadumaran Housing Board and was earning a sum of
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C.M.A.No.536 of 2014
Rs.5,000/- per month and the appellants have produced Ex.P5/pay certificate to
that effect. The Tribunal has fixed a meagre sum of Rs.3,000/- per month as
notional income of the deceased. There are eight dependants of the deceased
and the Tribunal ought to have deducted 1/5th instead of 1/3rd towards personal
expenses of the deceased. The Tribunal has not granted any enhancement
towards future prospects. The amounts awarded by the Tribunal under
conventional heads are meagre and prayed for enhancement of compensation.
6.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the appellants have not examined the
employer or any other independent witness to prove the avocation and income
of the deceased. Therefore, a sum of Rs.3,000/- per month fixed by the
Tribunal as notional income of the deceased is not meagre. The Tribunal has
awarded compensation towards medical expenses and pain and sufferings for
which the appellants are not entitled to. Therefore, the appellants are not
entitled to any enhancement towards future prospects. The Tribunal
considering entire materials on record, has awarded a sum of Rs.2,15,730/- as
compensation to the appellants, which is not meagre. The appellants have not
made out any case for enhancement of compensation and prayed for dismissal
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C.M.A.No.536 of 2014
of the appeal.
7.Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the 2nd respondent-Insurance Company and
perused the entire materials on record.
8.It is the case of the appellants that at the time of accident, the deceased
was working as Watchman at Nadumaran Housing Board and was earning a
sum of Rs.5,000/- per month. To prove the avocation and income of the
deceased, the appellants have produced Ex.P5/pay certificate, wherein it has
been mentioned that deceased was paid a sum of Rs.4,000/- per month. The
Tribunal did not accept the said document as appellants did not take any steps
to examine the employer or any independent witness to prove the avocation
and income of the deceased and fixed notional income of the deceased at
Rs.3,000/- per month. The accident is of the year 2003. Considering the date of
accident and nature of work done by the deceased, a sum of Rs.3,500/- is fixed
as monthly income of the deceased. It is the further case of the appellants that
the deceased was aged 55 years at the time of accident and the appellants have
produced Ex.P6/discharge summary and Ex.P7/Accident Register to that effect.
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C.M.A.No.536 of 2014
The Tribunal has erroneously taken the age of the deceased as 62 years as per
Ex.P2/postmortem certificate. The said contention is without merits. The age
mentioned in Accident Register and discharge summary is as per the
information given by the appellants. The appellants have not produced any
documents to substantiate their case that the deceased was aged only 55 years
at the time of accident. In such circumstances, the Tribunal has taken the age
mentioned in Ex.P2/postmortem certificate and fixed the age of the deceased as
62 years as mentioned in Ex.P2/postmortem certificate. Therefore, the age of
the deceased fixed by the Tribunal is proper. The Tribunal applied multiplier '5'
for granting compensation for loss of dependency. As per 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], the
correct multiplier applicable is '7'. The Tribunal, following the II Schedule,
deducted 1/3rd towards personal expenses of the deceased. The dependants of
the deceased are eight in numbers. Therefore, applying the principles laid down
by the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme
Court, cited supra, 1/5th is deducted towards personal expenses of the
deceased. The deceased was aged above 60 years at the time of accident and
hence, the appellants are not entitled to any enhancement towards future
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C.M.A.No.536 of 2014
prospects. By fixing monthly income of the deceased at Rs.3,500/-, applying
multiplier '7' and deducting 1/5th towards personal expenses, the amount
awarded by the Tribunal towards loss of dependency is modified to
Rs.2,35,200/- [Rs.3,500/- X 12 X 7 X 4/5].
9.The Tribunal has granted a sum of Rs.15,000/- towards pain and
sufferings. The appellants are not entitled for the said amount and the same is
liable to be set aside and it is hereby set aside. The Tribunal has granted only a
sum of Rs.5,000/- towards loss of consortium to the 1st appellant and the same
is meagre. Hence, a sum of Rs.40,000/- is granted towards loss of consortium
to 1st appellant. The amount awarded by the Tribunal towards funeral expenses
at Rs.3,000/- is meagre and hence, the same is enhanced to Rs.15,000/-. The
Tribunal has not granted any amount towards loss of estate. The appellants are
entitled to a sum of Rs.15,000/- towards loss of estate. The amounts awarded
by the Tribunal towards loss of love and affection and medical expenses are
just and reasonable and hence, the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Loss of dependency 1,20,000/- 2,35,200/- Enhanced
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C.M.A.No.536 of 2014
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
2. Loss of consortium 5,000/- 40,000/- Enhanced
to 1st appellant
3. Loss of love and 15,000/- 15,000/- Confirmed
affection to
appellants 2 to 8
4. Funeral expenses 3,000/- 15,000/- Enhanced
5. Medical expenses 57,730/- 57,730/- Confirmed
6. Pain and sufferings 15,000/- - Set aside
7. Loss of estate - 15,000/- Granted
Total Rs.2,15,730/- Rs.3,77,930/- Enhanced by
Rs.1,62,200/-
10.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.2,15,730/- is hereby enhanced
to Rs.3,77,930/-. The appellants are entitled to interest at the rate of 7.5% per
annum from the date of petition till the date of deposit only for the amount
awarded by the Tribunal. It is made clear that the appellants are not entitled to
any interest for the delay period on Rs.1,62,200/-, the amount now enhanced
by this Court as per the order of this Court dated 31.01.2014 made in
M.P.No.1 of 2013 in C.M.A.SR.No.105532 of 2013. 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,
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C.M.A.No.536 of 2014
if any, within a period of six weeks from the date of receipt of a copy of this
judgment to the credit of M.C.O.P.No.290 of 2004 on the file of the Motor
Accident Claims Tribunal, IV Small Causes Court, Chennai. On such deposit,
the appellants are permitted to withdraw their respective share of the award
amount now determined by this Court, as per the ratio of apportionment fixed
by the Tribunal, along with proportionate interest and costs, less the amount if
any, already withdrawn by making necessary applications before the Tribunal.
No costs.
10.12.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The learned IV Judge,
Motor Accident Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.536 of 2014
V.M.VELUMANI, J.
krk
C.M.A.No.536 of 2014
10.12.2021
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