Madras High Court

Aandal vs Anandha on 14 December, 2021

                                                                 C.M.A. Nos.1547, 1548 and 1572 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 14.12.2021

                                                      CORAM

                      THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
                                          and
                         THE HONOURABLE MR. JUSTICE V.SIVAGNANAM

                                       C.M.A. Nos.1547, 1548 and 1572 of 2018

                In CMA.No.1547 of 2018

                1. Aandal
                2. Palanisamy
                3. Santha
                4. Saratha                                                             ...appellant

                                                        Vs.

                1. Anandha
                2. The Oriental Insurance Co. Ltd.,
                   No.1188, I Floor, 26th Main,
                   Ragigudda Temple Main Road,
                   9th Block, Jaya Nagar,
                   Bangalore,
                   Karnataka 560 069                                                ...respondents

[1st respondent is already set ex-parte before the Trial Court, hence notice may be dispensed with in this appeal]

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicle Act, 1988 against the judgment and decree passed in MCOP.No.272 of 2015 dated 31.01.2018 on the file of the MACT/Principal District and Sessions Court at Ariyalur, Ariyalur District.

https://www.mhc.tn.gov.in/judis
                Page No.1/14
                                                                 C.M.A. Nos.1547, 1548 and 1572 of 2018

                                  For Appellant         : Mr.R.Jayaprakash
                                  For Respondents
                                   for R1               : Set ex-parte before the Tribunal
                                   for R2               : Mr.M.Krishnamoorthy



                In CMA.No.1548 of 2018

                1. Rajakumari
                2. Kaliyaperumal
                3. Vembu
                4. Kolanchiyammal                                                    ...appellants

                                                      Vs.

                1. Anandha
                2. The Oriental Insurance Co. Ltd.,
                   No.1188, I Floor, 26th Main,
                   Ragigudda Temple Main Road,
                   9th Block, Jaya Nagar,
                   Bangalore,
                   Karnataka 560 069                                                ...respondents

[1st respondent is already set ex-parte before the Trial Court, hence notice may be dispensed with in this appeal]

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicle Act, 1988 against the judgment and decree passed in MCOP.No.273 of 2015 dated 31.01.2018 on the file of the MACT/Principal District and Sessions Court at Ariyalur, Ariyalur District.

                                  For Appellant         : Mr.R.Jayaprakash
                                  For Respondents
                                   for R1               : Set ex-parte before the Tribunal
                                   for R2               : Mr.M.Krishnamoorthy


https://www.mhc.tn.gov.in/judis
                Page No.2/14
                                                                 C.M.A. Nos.1547, 1548 and 1572 of 2018



                In CMA.No.1572 of 2018

                1. Chitra
                2. Minor Mano Anjali
                3. Minor Baraneeswaran
                4. Dhanalakshmi
                5. Manokaran                                                          ...appellants

                                                      Vs.

                1. Anantha
                2. The Oriental Insurance Co. Ltd.,
                   No.1188, I Floor,
                   26th Main Ragigudda Temple Main Road,
                   9th Block, Jayanagar,
                   Bangalore,
                   Karnataka 560 069                                                ...respondents

[1st respondent is already set ex-parte before the Trial Court, hence notice may be dispensed with in this appeal]

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicle Act, 1988 against the judgment and decree passed in MCOP.No.311 of 2015 dated 31.01.2018 on the file of the MACT/Principal District and Sessions Court at Ariyalur, Ariyalur District.

                                  For Appellant         : Mr.P.Parthi Kannan
                                  For Respondents
                                   for R1               : Set ex-parte before the Tribunal
                                   for R2               : Mr.M.Krishnamoorthy




https://www.mhc.tn.gov.in/judis
                Page No.3/14
                                                                 C.M.A. Nos.1547, 1548 and 1572 of 2018

                                       COMMON JUDGMENT

[Judgment of the Court was delivered K.KALYANASUNDARAM, J]

These appeals are heard through video conferencing.

2. Being not satisfied with the quantum of compensation awarded by

the Motor Accidents Claims Tribunal/Principal District and Sessions Court

at Ariyalur, Ariyalur District in MOCP.No.272, 273 and 311 of 2015, the

claimants have preferred these appeals.

3. The brief facts of the case are that, on 09.07.2015 at about

22.45 hours, the deceased Saravanan and the deceased Pazhanimurugan

were returning to their house from Viruthasalam and the deceased

Veeramani and one Balamurugan were standing near Karukkai Bus stop on

the extreme left side of Viruthasalam-Andimadam Main Road. At that time,

the first respondent's vehicle, bearing Registration No.KA-01C-6522, came

in a rash and negligent manner and dashed against all the deceased persons.

Due to the impact, Saravanan, Pazhanimurugan and Veeramani died on the

spot. Their legal heirs filed MCOP.Nos.272, 273 and 311 of 2015 seeking

compensation of Rs.50,00,000/-, Rs.50,00,000/- and Rs.20,00,000/-,

respectively.

https://www.mhc.tn.gov.in/judis Page No.4/14 C.M.A. Nos.1547, 1548 and 1572 of 2018

4. According to the claimants, the accident had occurred due to the

rash and negligent driving of the driver of the first respondent's vehicle,

hence the owner as well as the insurer of the offending vehicle are liable to

pay compensation.

5. The Insurance Company filed a common counter statement,

wherein the manner of accident, age, occupation and income of the deceased

and their liability to pay the compensation were denied and disputed.

6. To substantiate the case on the side of the claimants, four witnesses

were examined and in all 19 documents were marked. On the side of the

respondents, RW1 and RW2 were examined and Exs.R1 and R2 were

produced.

7. The Tribunal, after considering the oral and documentary evidence,

held that the accident had occurred due to the rash and negligent driving of

the driver of the first respondent's vehicle and directed the Insurance

Company to pay the compensation of Rs.6,42,000/- to the claimants in

MCOP.No.272 of 2015; Rs.6,42,000/- to the claimants in MCOP.No.273 of

2015; and Rs.9,34,000/- to the claimants in MCOP.No.311 of 2015.

https://www.mhc.tn.gov.in/judis Page No.5/14 C.M.A. Nos.1547, 1548 and 1572 of 2018

Aggrieved over the same, the present appeals have been filed by the

claimants.

In CMA.No.1547 of 2018 (MCOP.No.272 of 2015)

8. It is the contention of the learned counsel for the appellants that the

deceased Sarvanan was working as an Electrician in abroad and earning

Rs.30,000/- per month. However, the Tribunal, without considering the

avocation, fixed the notional income of the deceased at Rs.6,000/- per

month. Further, the Tribunal failed to consider the future prospects of the

deceased while calculating the Loss of Income.

9. On the other hand, the learned counsel for the Insurance Company,

submitted that, except the production of Ex.P9 xerox copy of the passport,

no document was produced to show that the deceased was working as

Electrician in foreign country. Hence, the Tribunal rightly fixed Rs.6,000/-

as notional monthly income of the deceased.

10. We find that the claimants have marked Ex.P8 skill evaluation

certificate and Ex.P9 Passport to show that the deceased was working as

Electrician in Foreign Country. Though no sufficient document was

produced to prove the avocation of the deceased, considering the cost of

https://www.mhc.tn.gov.in/judis Page No.6/14 C.M.A. Nos.1547, 1548 and 1572 of 2018

living prevalent at the time of the accident, this Court, fixes Rs.9,000/- as

monthly income of the deceased. If 40% of the income is added towards

future prospects, the actual monthly income of the deceased comes to

Rs.12,600/- [9,000 + 3,600]. Since the deceased was a bachelor, 50%

thereof has to be deducted towards personal expenses. So, the loss of

dependency comes to Rs.6,300/- [12,600 - 6,300]. As the deceased was

27 years at the time of the accident, 17 multiplier is applied and the Loss of

Income is assessed as Rs.12,85,200/- [6,300 x 12 x 17]. Thus, the sum of

Rs.6,12,000/- awarded by the Tribunal under the head Loss of Income is

enhanced to Rs.12,85,200/-.

11. In addition to that, this Court awards a sum of Rs.1,20,000/-

towards Filial Consortium. Further, the amounts awarded by the Tribunal

under other heads; viz., Rs.15,000/- towards Loss of Estate; and

Rs.15,000/- towards Funeral Expenses are confirmed. In total, the claimants

are entitled to Rs.14,35,200/- along with interest at the rate of 7.5% per

annum from the date of claim petition till the date of realization. Thus, the

total compensation payable to the claimant is re-calculated and tabulated

below:

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S. Heads under which amounts Amount awarded Amount awarded No. are awarded by the Tribunal by Tribunal in Rs. by this Court in Rs.

                   1.       Loss of Income                           6,12,000               12,85,200
                   2.       Loss of Estate                             15,000                  15,000
                   3.       Funeral Expenses                           15,000                  15,000
                   4.       Loss of Filial Consortium                         -              1,20,000
                            Total                                    6,42,000               14,35,200

In CMA.No.1548 of 2018 (MCOP.No.273 of 2015)

12. According to the learned counsel for the claimants, the deceased

Pazhanimurugan was working as an industrial fitter and earning Rs.30,000/-

per month and in order to prove the same, Ex.P16 Employee Identity Card

was marked. However, the Tribunal, without considering the avocation of

the deceased, fixed the notional income of of the deceased at Rs.6,000/- per

month. Further, the Tribunal failed to add future prospects while calculating

the Loss of Income.

13. On the other hand, the learned counsel for the second

respondent/Insurance Company, submitted that the claimants have not

produced salary slip, pay certificate or bank accounts to prove the income of

the deceased. Hence, the Tribunal rightly fixed Rs.6,000/- as notional

monthly income of the deceased and therefore, there is no need to enhance https://www.mhc.tn.gov.in/judis Page No.8/14 C.M.A. Nos.1547, 1548 and 1572 of 2018

the compensation amount.

14. On perusal of Ex.P16 Employee Identity Card, it is seen that the

deceased Pazhanimurugan was working as an industrial fitter, but no

documentary evidence was provided to prove the income of the deceased.

Hence, this Court, considering the avocation and the cost of living prevalent

at the time of the accident, fixes Rs.9,000/- as monthly income of the

deceased. As the petitioner was a skilled labourer in a private organisation,

40% of the income has to be added towards future prospects. If so added,

the actual monthly income of the deceased comes to Rs.12,600/- [9,000 +

3,600]. Since the deceased was bachelor, 50% is deducted towards personal

expenses. If so deducted, the loss of dependency would be Rs.6,300/-

[12,600 - 6,300]. As the deceased was 27 years at the time of the accident,

multiplier 17 is applied and the Loss of Income is arrived at Rs.12,85,200/-

[6,300 x 12 x 17]. Thus, the sum of Rs.6,12,000/- awarded by the Tribunal

under the head Loss of Income is enhanced to Rs.12,85,200/-.

15. In addition to that, this Court awards a sum of Rs.1,20,000/-

towards Filial Consortium. Further, the amounts awarded by the Tribunal

under other heads; viz., Rs.15,000/- towards Loss of Estate; and https://www.mhc.tn.gov.in/judis Page No.9/14 C.M.A. Nos.1547, 1548 and 1572 of 2018

Rs.15,000/- towards Funeral Expenses are confirmed. In total, the claimants

are entitled to Rs.14,35,200/- along with interest at the rate of 7.5% per

annum from the date of claim petition till the date of realization. Thus, the

total compensation payable to the claimants is re-calculated and tabulated

below:

S. Heads under which amounts Amount awarded Amount awarded No. are awarded by the Tribunal by Tribunal in Rs. by this Court in Rs.

                   1.       Loss of Income                           6,12,000               12,85,200
                   2.       Loss of Estate                             15,000                  15,000
                   3.       Funeral Expenses                           15,000                  15,000
                   4.       Loss of Filial Consortium                         -              1,20,000
                            Total                                    6,42,000               14,35,200

In MCOP.No.1572 of 2018 (MCOP.No.311 of 2015)

16. It is the contention of the learned counsel for the claimants that

the Tribunal erred in fixing the monthly income of the deceased at

Rs.6,000/- without considering the fact that he was a centering (masonry)

worker and earning Rs.21,000/- per month. Further, the Tribunal failed to

award future prospects while calculating the Loss of Income.

17. In reply, it is the submission of the the learned counsel for the https://www.mhc.tn.gov.in/judis Page No.10/14 C.M.A. Nos.1547, 1548 and 1572 of 2018

Insurance Company, that the claimants have not proved the occupation and

income of the deceased. However, the Tribunal fixed the monthly income of

the deceased at Rs.6,000/- and awarded the compensation. Therefore, there

is no need to enhance the compensation.

18. It is not in dispute that the claimants are the legal heirs of the

deceased Veeramani. The first claimant examined herself as PW3 and

deposed that the deceased was working as a centering (masonry) worker

and earning Rs.21,000/- per month. Though the claimants stated that the

deceased was earning a sum of Rs.21,000/- per month, but they have not

produced any documents to prove the same. In the light of the facts of this

case, Rs.9,000/- is fixed as monthly income of the deceased. 40% is added

towards future prospects and the actual monthly income is arrived to

Rs.12,600/- [9,000 + 3,600]. Since the number of dependents of the

deceased are 5, 1/4 of the amount is deducted towards personal expenses

and the loss of dependency would be Rs.9,450/- [12,600 - 3,150]. As the

deceased was 32 years at the time of the accident, multiplier 16 is applied,

and the Loss of Income comes to Rs.18,14,400/- [9,450 x 12 x 16]. Thus,

the sum of Rs.8,64,000/- awarded by the Tribunal under the head Loss of

Income is enhanced to Rs.18,14,400/-.

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19. In addition to the sum of Rs.40,000/- awarded by the Tribunal

towards Consortium to the first claimant, a sum of Rs.1,60,000/- is awarded

to the claimants 2 to 5 towards Filial Consortium. Further, the amounts

awarded by the Tribunal under other heads; viz., Rs.15,000/- towards Loss

of Estate; and Rs.15,000/- towards Funeral Expenses are confirmed. In

total, the claimant is entitled to Rs.20,44,400/- along with interest at the rate

of 7.5% per annum from the date of claim petition till the date of realization.

Thus, the total compensation payable to the claimants is re-

calculated and tabulated below:

S. Heads under which amounts Amount awarded Amount awarded No. are awarded by the Tribunal by Tribunal in Rs. by this Court in Rs.

                   1.       Loss of Income                           8,64,000               18,14,400
                   2.       Loss of Consortium                         40,000                  40,000
                   3.       Loss of Estate                             15,000                  15,000
                   4.       Funeral Expenses                           15,000                  15,000
                   5.       Loss of Filial Consortium                         -              1,60,000
                            Total                                    9,34,000               20,44,400

20. In view of the above modifications, the Civil Miscellaneous

Appeals are partly allowed. The second respondent/Insurance Company is

directed to deposit the above modified award amounts with accrued interest

and costs, less the amount already deposited, if any, within a period of eight

weeks from the date of receipt of a copy of this order. On such deposit, the

https://www.mhc.tn.gov.in/judis Page No.12/14 C.M.A. Nos.1547, 1548 and 1572 of 2018

major claimants are permitted to withdraw the modified award amount as

apportioned above, less the amount already withdrawn, if any, together with

proportionate interest and costs. Insofar as the minor claimants 2 and 5 in

MCOP.No.311 of 2015 (appellants 2 and 3 in CMA.No.1572 of 2018) are

concerned, their respective shares shall be deposited by the Tribunal in a

Fixed Deposit Scheme in any one of the Nationalised Banks and it shall be

renewed periodically till they attain majority and the interest accrued

thereon shall be withdrawn by the first claimant in MCOP.No.311 of

2015/mother, once in three months. The apportionment of shares as fixed by

the Tribunal to the claimants remains unaltered. No costs.



                                                                  [M.K.K.S, J] [V.S.G., J]
                                                                          14.12.2021
                Index       : Yes / No
                Speaking order: Yes/No
                pvs

                To