Madras High Court
Shankar vs Kuppusamy on 17 December, 2021
1 C.M.A.No.1314 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.12.2021
CORAM:
THE HONOURABLE MRS. JUSTICE S. KANNAMMAL
C.M.A.No. 1314 of 2018
1.Shankar
2.Surendar
3.Minor Akila ...Appellants
Versus
1. Kuppusamy
2. The Managing Director,
The New India Assurance Company Limited,
No.69/70, Shekupet, Nadu Street,
Kancheepuram. ...Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
Act, 1988, against the award and decree in M.C.O.P.No. 133 of 2014 dated
25.07.2017 on the file of the Motor Accident Claims Tribunal, Madurantakam,
Kancheepuram District.
For Appellants : Mr.P.Gopiraja
For R1 : No Appearance
For R2 : Mr.J.Michael Visuvasam
----
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award and
decree dated 25.07.2017 passed by the learned Subordinate Judge [Motor
Accidents Claims Tribunal], Madurantakam, Kancheepuram District in
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M.C.O.P. No. 133 of 2014.
2. By the impugned award, the Tribunal has awarded a sum of
Rs.3,76,961/- as compensation together with interest at 9% per annum from
the date of filing of the claim petition till the date of deposit to the first
appellant for the death of his wife Vijayalakshmi, W/o.Shankar, and the
children of the deceased the appellants 2 and 3.
3. This is a case of fatal accident. It is the case of the claimants that,
on 12.05.2014 at 11.30 a.m., the deceased Vijayalakshmi was traveling as a
pillion rider in a two wheeler bearing Registration No.TN-19-Y-2221 driven
by her own brother, namely, Mageshkumar from Acharapakkam to
Venkatesapuram, near Venkatesapuram Veeranakunnam Road in high speed
and also in a rash and negligent manner and without seeing the big pit on the
road, he applied sudden brake and was not able to control the vehicle. Due to
his applying sudden brake, both Mageshkumar and the deceased
Vijayalakshmi fell down from the Two Wheeler. As a result, the deceased
sustained head injuries and was admitted in Adiparasakthi Medical College
Hospital, Melmaruvathur and subsequently, the deceased was shifted to SRM
Medical College and Research Central, Kattankolathur, for further treatment
where she died on 18.05.2014. The husband of the deceased and her son and
daughter filed the claim petition before the Tribunal. Though they claimed
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Rs.17,00,000/- as compensation, the Tribunal has awarded Rs.3,76,961/-
together with interest at the rate of 9% per annum from the date of claim
petition till the date of realization, under the following heads:-
Heads Rs.
Loss of income 16 x 15,000/- 2,40,000/-
Loss of Consortium 50,000/-
Loss of Love and Affection 50,000/-
Transport Expenses 5,000/-
Damages to Cloth and Articles 2,000/-
Medical Expenses 29,961/-
Total 3,76,961/-
4. The learned counsel appearing for the appellants/claimants
contended that, since the amount awarded by the Tribunal is meager in all the
heads, the claimants are entitled for higher compensation. He further
contended that, at the time of accident, the deceased was aged 37 years and she
was hale and healthy. She was the sole bread winner in her family. He also
contended that, the deceased Vijayalakshmi was doing textile business and she
was earning a sum of Rs.10,000/- per month, whereas, the Tribunal, without
considering the income of the deceased wrongly fixed a sum of Rs.15,000/-
per annum as notional income. He further contended that the amounts
awarded under the heads "loss of love and affection" and "loss of consortium"
are very meager. Hence, the appellants/claimants seek for enhancement of
compensation.
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5. Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company submitted that the impugned award and
Decree of the Tribunal, is well reasoned and it requires no interference and
therefore, this Civil Miscellaneous Appeal is liable to be dismissed.
6. This Court carefully considered the rival submissions of the
learned counsel for the appellants/claimants and the learned counsel appearing
for the second respondent/Insurance Company and perused the materials
available on record.
7. It is not in dispute that the deceased died in the road accident that
had occurred on 12.05.2014. The finding of the Tribunal that the accident had
occurred due to rash and negligent driving while applying sudden brake on
seeing a big pit on the road is justified and hence, it need not be adverted to in
this appeal.
8. According to the appellants/claimants, the deceased was earning a
sum of Rs.10,000/- per month through textile business. However, the Tribunal
has fixed the notional annual income of the deceased as Rs.15,000/-. The
learned counsel for the Insurance Company contended that the appellants have
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not produced any documents with regard to the business and monthly income
of the deceased and they have also failed to examine any independent witness
to prove the monthly income of the deceased. The Tribunal fixed the income
of the deceased as Rs.15,000/- per annum, which itself is on the higher side.
9. As contended by the learned counsel for the appellants/claimants,
the Tribunal has awarded only meagre amounts under the head “loss of
income”, "loss of love and affection" and "loss of consortium". The Tribunal,
as per the decisions of the Supreme Court in the case of The General
Manager, Kerala State Road Transport Corporation v. Susamma Thomas
and Others reported in 1994 (2) SCC 176, Sarla Verma and Others v. Delhi
Transport Corporation reported in 2009 (6) SCC 121 and Lata Wadhva and
Others v. State of Bihar and Others reported in 2001 (8) SCC 197 and as per
Clause (6) of II Schedule to the Motor Vehicles Act, observed that notional
income of a spouse is 1/3 of the income of the surviving spouse.
10. Though in this case, there is no evidence in respect of the monthly
income of the deceased Vijayalakshmi, taking into consideration the facts and
circumstances of the case, this Court fixes Rs.10,000/- as the monthly income
of the deceased. The annual income of the deceased works out to
Rs.1,20,000/- (Rs.10,000/- x 12 months). If 1/3rd is deducted towards
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personal expenses, the resultant amount works out to Rs.80,000/-
[ Rs.1,20,000/- - (1/3rd of Rs.1,20,000/-) ]. Proper multiplier to be adopted in
this case is "15" and the loss of income thus works out to Rs.12,00,000/-
(Rs.80,000/- x "15").
11. The medical expenses awarded by the Tribunal is hereby
confirmed, as the same is just and fair, taking into consideration that the
claimants have produced medical bills.
12. Taking into consideration the fact that the husband has lost his
wife, it is just, fair and proper to award only Rs.40,000/-. Accordingly, the
amount awarded by the Tribunal under the head "loss of consortium" at
Rs.50,000/- is hereby reduced to Rs.40,000/-.
13. Further, taking into account the fact that the children namely the
claimants 2 and 3 have lost their mother at their young age, this Court deems it
fit and proper to award Rs.80,000/- under the head "loss of love and affection",
instead of Rs.50,000/- awarded by the Tribunal. This amount, in the opinion
of this Court, would meet the ends of justice. Accordingly, Rs.50,000/-
awarded by the Tribunal under the head "loss of love and affection" at
Rs.50,000/- is hereby enhanced to Rs.80,000/-.
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14. It is to be noted that the amount awarded by the Tribunal under
the head "transport expenses" is very meagre and the same is hereby increased
from Rs.5,000/- to Rs.15,000/-, considering the fact that the claimants would
have taken the deceased to hospital and would have incurred expenses on that
account.
15. In view of the fact that the Tribunal has not awarded any amount
under the head "funeral expenses", this Court deems it fit and proper to award
Rs.15,000/- under the head "funeral expenses" in as much as the claimants
would have expended on the same.
16. It is also to be noted that the Tribunal has not awarded any
amount under the head "loss of estate". Accordingly, this Court awards
Rs.15,000/- under the head "loss of estate".
17. Further, it is to be noted that the Tribunal has awarded Rs.2,000/-
under the head damages to clothes and articles, which is unwarranted, taking
into consideration the facts and circumstances of the case. Accordingly, the
amount awarded by the Tribunal under the head "damages to clothes and
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articles" is hereby set aside.
18. The modified award is tabulated hereunder:-
Amount
Amount awarded
Sl.No. Heads awarded by this
by the Tribunal
Court
1 Loss of Income Rs.2,40,000 Rs.12,00,000
2. Loss of Consortium Rs.50,000 Rs.40,000
3. Loss of Love and Rs.50,000 Rs.80,000
Affection for two persons
4. Transport Expenses Rs.5,000 Rs.15,000
5. Funeral Expenses --- Rs.15,000
6. Loss of Estate --- Rs.15,000
7. Damages to Clothe and Rs.2,000 ---
Articles
8. Medical Expenses Rs.29,961 Rs.29,961
Total Rs.3,76,961 Rs.13,94,961
19. The compensation awarded by the Tribunal is hereby enhanced
from Rs.3,76,961/- to Rs.13,94,961/- [Rupees Thirteen Lakhs Ninety Four
Thousand Nine Hundred and Sixty One Only]. The rate of interest at 9% fixed
by the Tribunal is hereby reduced to 7.5%, taking into consideration the
prevailing Bank interest and also the cost of living, coupled with the
consideration of facts and circumstances of the case on hand. The second
respondent/Insurance Company is directed to deposit the above said award
amount to the credit of M.C.O.P.No. 133 of 2014 on the file of the Motor
Accident Claims Tribunal, Madurantakam, Kancheepuram District, along with
interest at the rate of 7.5% per annum from the date of claim petition till the
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date of deposit, and costs as awarded by the Tribunal, less, the amounts if any
already deposited, within a period of eight weeks from the date of receipt of a
copy of this judgment. On such deposit being made, the first
claimant/husband shall withdraw a sum of Rs.4,00,000/- as his share. The
second claimant/son shall withdraw a sum of Rs.4,00,000/- and the remaining
compensation amount is payable to the third claimant/minor daughter along
with proportionate interest and costs as awarded by the Tribunal.
20. As far as the share of the minor claimant, namely, Akila is
concerned, the same shall be deposited in any of the Nationalized Bank in the
interest bearing Fixed Deposit, till she attains majority and the natural
guardian of the minor, being the father/1st Appellant/Claimant is permitted to
withdraw the accrued interest thereon once in three months. The Claimants
are directed to pay necessary Court Fee, if any to be paid, on the enhanced
compensation amount.
21. In the result, this appeal is partly allowed. There shall be no order
as to costs in this appeal.
17.12.2021
Index : Yes / No
Speaking Order : Yes/ No
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msm
S. KANNAMMAL. J
msm
To
1. The Sub Judge,
Motor Accident Claims Tribunal,
Madurantakam,
Kancheepuram District.
2. The Section Officer, V.R.Section,
High Court of Madras, Chennai-600 104.
C.M.A.No.1314 of 2018
17.12.2021
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