Madras High Court
Selvi vs N.Sekar on 21 December, 2021
C.M.A.No.1512 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.No.1512 of 2018
1.Selvi
2.Minor Manju
3.Minor Iyyappan
(Minor appellants 2 & 3 are represented by their
mother / guardian Selvi, 1st appellant herein)
4.Kanniyammal ... Appellants / Petitioners
Vs.
1.N.Sekar
2.H.Raaju
3.Universal Sombo General Insurance Company Limited,
RO 201-208, Crystal Plazza,
Opp. Infiniti Mall,
Link Road, Andheri (West),
Mumbai – 400 058. ... Respondents / Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Award and decree dated 27.02.2018 in
M.C.O.P.No.1033 of 2013, on the file of the Motor Accidents Claims
Tribunal, I Additional District Court, Cuddalore.
1/10
https://www.mhc.tn.gov.in/judis
C.M.A.No.1512 of 2018
For Appellants : Mrs.Ramya Viswanatha Rao
For R1 & R2 : No appearance
For R3 : Mrs.Srividhya
*****
JUDGMENT
This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the Tribunal in the Award passed in
M.C.O.P.No.1033 of 2013 dated 27.02.2018 on the file of the Motor Accident
Claims Tribunal, I Additional District Court, Cuddalore.
2. The appellants are the claimants in M.C.O.P.No.1033 of 2013, on
the file of the Motor Accidents Claims Tribunal, I Additional District Court,
Cuddalore. They have filed the above said claim petition, claiming a sum of
Rs.20,00,000/- as compensation for the death of one Manickam @
Malayalam, who died in the accident that took place on 13.01.2013.
3. The Tribunal, considering the pleadings, oral and documentary
evidence, held that the accident had occurred due to rash and negligent
driving by the driver/1st respondent of the Auto rickshaw belonging to 2nd
https://www.mhc.tn.gov.in/judis
C.M.A.No.1512 of 2018
respondent and directed the 3rd respondent/Insurance Company to pay a sum
of Rs.11,41,000/- as compensation to the appellants.
4. Not being satisfied with the amounts awarded by the Tribunal, the
appellants/claimants have come up with the present Civil Miscellaneous
Appeal seeking enhancement of compensation.
5. The learned counsel appearing for the appellants/claimants
contended that, at the time of accident, the deceased was makers of Dhristhi
Toys and other articles aged about 30 years and was earning a sum of
Rs.20,000/- per month. But, the Tribunal has fixed a meagre sum of
Rs.7,000/- per month as notional income of the deceased. There are four
dependants of the deceased and the Tribunal has erroneously deducted 1/3rd
towards personal expenses of the deceased, instead of deducting 1/4 th. The
total compensation awarded by the Tribunal is very meagre and hence, the
learned counsel for the appellants/claimants prayed for enhancement of
compensation.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1512 of 2018
6. Per contra, Mrs.Srividhya, learned counsel appearing for the 3rd
respondent/Insurance Company contended that the appellants/claimants failed
to prove the avocation and income of the deceased by producing valid
documents. In the absence of any material evidence with regard to avocation
and income, the sum of Rs.7,000/- per month fixed by the Tribunal as
notional income of the deceased, is not meagre. The Tribunal, considering the
entire materials on record, had awarded a sum of Rs.11,41,000/- as
compensation to the appellants/claimants, which is excessive. Therefore, the
appellants/claimants are not entitled for any enhancement and hence, the
learned counsel for 3rd respondent Insurance Company prayed for dismissal of
the appeal.
7.Heard the learned counsel appearing for the appellants/claimants as
well as the learned counsel appearing for the 3rd respondent/Insurance
Company and perused the entire materials available on record.
8. It is the case of the appellants/claimants , at the time of accident, the
deceased was makers of Dhristhi Toys and other articles aged about 28 years
https://www.mhc.tn.gov.in/judis
C.M.A.No.1512 of 2018
and was earning a sum of Rs.20,000/- per month. The appellants/claimants
have not proved the avocation and income of the deceased by producing valid
document. In the absence of any valid documents with regard to avocation
and income, the Tribunal fixed a sum of Rs.7,000/- per month as notional
income of the deceased. The accident had occurred in the year 2013. The cost
of living has increased enormously and salary of even unskilled workers has
increased substantially. Hence, a sum of Rs.9,000/- per month is fixed as
notional income of the deceased. As per Ex.P2/post-morterm report of the
deceased as also the evidence of P.W.1, it is clear that shows the deceased
was aged 30 years at the time of accident. The Tribunal has rightly applied
multiplier '17' as per the judgment of the Hon'ble Apex Court reported in
2009 (2) TN MAC 1 (SC), [Sarla Verma & others Vs. Delhi Transport
Corporation & another]. The Tribunal has not granted any compensation
towards future prospects. The appellants/claimants are entitled to 40%
amount towards “future prospects” as per the judgment of the Hon'ble Apex
Court reported in 2017 (2) TN MAC 609 (SC), [National Insurance
Company Limited Vs. Pranay Sethi and others]. There are four dependants
of the deceased and the Tribunal erroneously deducted 1/3 rd towards personal
https://www.mhc.tn.gov.in/judis
C.M.A.No.1512 of 2018
expenses of the deceased, instead of deducting 1/4th. Thus, the compensation
awarded by the Tribunal towards “loss of income” is modified to
Rs.19,27,800/- {Rs.12,600/- [Rs.9,000/- + Rs.3,600/- (40% of Rs.9,000/-)]
X 12 X 17 X 3/4 }.
9. The Tribunal has awarded a sum of Rs.40,000/- towards “loss of
consortium” to the 1st appellant, which is just and reasonable and hence the
same is hereby confirmed. The Tribunal has awarded a sum of Rs.15,000/-
towards “loss of love and affection” to appellants 2 to 4, who are the children
and mother of the deceased which is meagre and the same are hereby
enhanced to Rs.40,000/- each towards “loss of love and affection” to the
appellants 2 to 4. The Tribunal has not awarded any amount towards “loss of
estate”. The appellants/claimants are entitled to a sum of Rs.15,000/- towards
“loss of estate”. The Tribunal has awarded a meagre sum of Rs.15,000/-
towards “funeral expenses” and “transportation”. The appellants are entitled
to a sum of Rs.15,000/- each towars “funeral expenses” and “transportation”.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1512 of 2018
10. It is well settled that the Tribunal and the Courts have to award just
compensation. Though the claimants have 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 Amount Award
No awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted
1. Loss of income Rs.10,71,000/- Rs.19,27,800/- Enhanced
2. Funeral expenses and Rs.15,000/- Rs.30,000/- Enhanced
transportation
3. Loss of estate --- Rs.15,000/- Granted
4. Loss of consortium to 1st Rs.40,000/- Rs.40,000/- Confirmed
appellant
5. Los of love and affection Rs.15,000/- Rs.1,20,000/- Enhanced
to the appellants 2 to 4.
Total Rs.11,41,000/- Rs.21,32,800/- Enhanced by
Rs.9,91,800/-
https://www.mhc.tn.gov.in/judis
C.M.A.No.1512 of 2018
11.In the result, this Civil Miscellaneous Appeal is allowed and the
compensation awarded by the Tribunal at Rs.11,41,000 /- is hereby enhanced
to Rs.21,32,800 /- [Rupees Twenty One Lakhs Thirty Two Thousand and
Eight Hundred only] together with interest at the rate of 7.5% per annum
from the date of claim petition till the date of deposit. The 3rd
respondent/Insurance Company is directed to deposit the enhanced 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.1033 of
2013, on the file of the Motor Accidents Claims Tribunal, I Additional District
Court, Cuddalore. On such deposit, the appellants 1 & 4 are permitted to
withdraw their respective shares, now awarded by this Court as per the
apportionment fixed by the Tribunal, along with interest and costs, less the
amount if any, already withdrawn by making necessary applications before
the Tribunal. The share of the minor 2nd and 3rd appellants are directed to be
deposited in any one of the Nationalized Banks, in any interest bearing Fixed
Deposit Scheme till the minor 2nd and 3rd appellants attains majority. On such
deposit, the 1st appellant, being the mother of the minor 2 nd and 3rd appellants,
https://www.mhc.tn.gov.in/judis
C.M.A.No.1512 of 2018
is permitted to withdraw the accrued interest once in three months for the
welfare of the minor 2nd and 3rd appellants. Since, this Court had enhanced the
compensation, the appellants/claimants are directed to pay necessary Court
fee, if any, on the enhanced compensation. In other aspects, the award of the
Tribunal shall stand confirmed. There shall be no orders as to costs in the
present appeal.
21.12.2021
ssi
Index : Yes / No
Speaking Order : Yes/No
To:
1.The I Additional District Judge,
Motor Accidents Claims Tribunal,
Cuddalore.
2.The Section Officer,
VR Section,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1512 of 2018
S.KANNAMMAL, J.
ssi
C.M.A.No.1512 of 2018
21.12.2021
https://www.mhc.tn.gov.in/judis
