Madras High Court
N.Amutha vs R.Kamaleswari on 13 December, 2021
C.M.A.No.3318 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3318 of 2014
1.N.Amutha
2.N.Senthil Kumar
3.N.Gomathi
4.N.Shanthi
5.N.Manjula .. Appellants
Vs.
1.R.Kamaleswari
(R1 remained exparte in the Trial Court.
Hence, notice to R1 dispensed with)
2.The New India Assurance Company Limited,
No.4, Muthulingam Reddy Street,
Tambaram (West),
Chennai – 600 045. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
24.02.2014 made in M.C.O.P.No.3840 of 2009 on the file of the Motor
Accident Claims Tribunal, Special Sub Court No.I dealing with M.C.O.P.
Cases, Chennai.
1/9
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C.M.A.No.3318 of 2014
For Appellants : Mr.M.Mahendran
for Mr.N.M.Muthurajan
For R1 : No appearance
For R2 : Mr.P.G.Padmanabhan
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 24.02.2014 made in
M.C.O.P.No.3840 of 2009 on the file of the Motor Accident Claims Tribunal,
Special Sub Court No.I dealing with M.C.O.P. Cases, Chennai.
2.The appellants are the claimants in M.C.O.P.No.3840 of 2009 on the
file of the Motor Accident Claims Tribunal, Special Sub Court No.I dealing
with M.C.O.P. Cases, Chennai. They filed the above said claim petition,
claiming a sum of Rs.8,00,000/- as compensation for the death of one
M.Narayanan, who died in the accident that took place on 10.09.2009.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the van belonging to 1st respondent and directed the 2nd
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C.M.A.No.3318 of 2014
respondent-Insurance Company to pay a sum of Rs.6,20,500/- as
compensation to the appellants at the first instance and recover the same from
the 1st respondent – owner of the van.
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
deceased was working as Mason and was earning a sum of Rs.400/- per day.
But, the Tribunal has fixed a meagre sum of Rs.4,500/- per month as notional
income of the deceased. The deceased was aged 52 years at the time of
accident but the Tribunal fixed the age of the deceased at 55 years. 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, learned counsel appearing for the 2nd respondent-
Insurance Company contended that the appellants failed to prove the
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C.M.A.No.3318 of 2014
avocation and income of the deceased by acceptable evidence. In the absence
of any acceptable evidence, a sum of Rs.4,500/- per month fixed by the
Tribunal as notional income of the deceased is not meagre. The Tribunal has
awarded excessive amount of Rs.1,20,000/- towards loss of love and
affection and hence, the appellants are not entitled to any enhancement
towards future prospects. The appellants have not made out any case for
enhancement of compensation and prayed for dismissal of the appeal.
7.Though notice has been served on the 1st respondent and her name is
printed in the cause list, there is no representation for her, either in person or
through counsel.
8.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.
9.It is the case of the appellants that at the time of accident the
deceased was working as Mason and was earning a sum of Rs.400/- per day.
But, the appellants have not produced any documentary evidence to prove the
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C.M.A.No.3318 of 2014
avocation and income of the deceased. In the absence of any material
evidence to prove the avocation and income of the deceased, the Tribunal
fixed a sum of Rs.4,500/- per month as notional income of the deceased. The
accident is of the year 2009 and the monthly income fixed by the Tribunal is
meagre. Considering the year of accident and nature of work done by the
deceased, a sum of Rs.6,500/- per month is fixed as notional income of the
deceased. It is the further case of the appellants that the deceased was aged 52
years at the time of accident. But, the appellants have not produced any
documents to prove the age of the deceased. As per Ex.P3/Postmortem
Certificate and Ex.P4/Death Report, the deceased was aged 55 years. The
Tribunal rightly fixed the age of the deceased as 55 years as per Exs.P3 & P4.
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] rightly applied multiplier '11'. The
deceased was aged 55 years at the time of accident but the Tribunal has not
granted any enhancement towards future prospects. As per the judgment of
the Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC), [National
Insurance Company Limited Vs. Pranay Sethi and others], the appellants
are entitled to 10% enhancement towards future prospects. The dependants
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C.M.A.No.3318 of 2014
are five in numbers and the Tribunal has rightly deducted 1/4th towards
personal expenses of the deceased. Thus, by fixing a sum of Rs.6,500/- as
monthly income and granting 10% enhancement towards future prospects, the
compensation awarded by the Tribunal towards pecuniary loss is modified to
Rs.7,07,850/- {Rs.7,150/- [Rs.6,500/- + Rs.650/- (10% of Rs.6,500/-)] X 12
X 11 X ¾ }. The amounts awarded by the Tribunal towards loss of
consortium, loss of love and affection and funeral expenses are just and
reasonable and hence, the same are hereby confirmed. The Tribunal has not
awarded any amount towards loss of estate. The appellants are entitled to a
sum of Rs.15,000/- towards loss of estate.
10.It is well settled that the Tribunal and the Courts have to award just
compensation. Though the claimant has claimed lesser compensation, the
Courts have power to grant just compensation more than the amount claimed
by the claimants. 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. Pecuniary loss 4,45,500/- 7,07,850/- Enhanced
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C.M.A.No.3318 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 40,000/- 40,000/- Confirmed
to 1st appellant
3. Loss of love and 1,20,000/- 1,20,000/- Confirmed
affection to
appellants 2 to 5
4. Funeral expenses 15,000/- 15,000/- Confirmed
5. Loss of estate - 15,000/- Granted
Total Rs.6,20,500/- Rs.8,97,850/- Enhanced by
Rs.2,77,350/-
11.In the result, this Civil Miscellaneous Appeal is allowed and the
compensation awarded by the Tribunal at Rs.6,20,500/- is hereby enhanced to
Rs.8,97,850/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of 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 six weeks from the date of receipt of a copy of this
judgment to the credit of M.C.O.P.No.3840 of 2009 on the file of the Motor
Accident Claims Tribunal, Special Sub Court No.I dealing with M.C.O.P.
Cases, Chennai, at the first instance and recover the same from the 1st
respondent – owner of the van. On such deposit, the appellants are permitted
to withdraw their respective share of the award amount now determined by
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C.M.A.No.3318 of 2014
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. The appellants are
directed to pay the necessary Court fee for the enhanced amount of
compensation. No costs.
13.12.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Special Subordinate Judge No.I,
(Dealing with M.C.O.P. Cases),
Motor Accident Claims Tribunal,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
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C.M.A.No.3318 of 2014
krk
C.M.A.No.3318 of 2014
13.12.2021
https://www.mhc.tn.gov.in/judis
