Madras High Court

Kala vs M/S.Indo Asian Finance Ltd on 3 February, 2021

                                                                       C.M.A.No.2755 of 2011

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 03.02.2021

                                                       CORAM:

                                   THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR

                                                CMA. No.2755 of 2011


                     1.Kala,
                       W/o Sundaramoorthy,

                     2.Minor Pusparaj,
                       S/o Sundaramoorthy,

                     3.Minor Murali,
                       S/o Sundaramoorthy,

                     4.Minor Tamilarasi,
                       D/o Sundaramoorthy,

                     5.Mariammal,
                       W/o Kuppan,                                           ... Appellants

                                                          ..vs..

                     1.M/s.Indo Asian Finance Ltd.,
                       Chellani Plaza, 36/1, Veerappan Street,
                       Madras - 600079.
                       (was set exparte in the Trail court)

                     2.The United India Insurance Corporation Ltd.,
                       Park Town Branch, N.S.C.Bose Road,
                       IIIrd Floor, Madras-600079.
                       (was set exparte in the Trail court)

                     1/8



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                                                                               C.M.A.No.2755 of 2011



                     3.M.Ravikumar,
                       Kumaran Bus Service,
                       A-8, Anna Nagar,
                       Chingleput.
                       (was set exparte in the Trail court)

                     4.The United India Insurance Corporation Ltd.,
                       Chingleput.                                                ... Respondents



                               Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against
                     the judgment and decree dated 02.09.2006 made in M.C.O.P.No.649 of 1994,
                     on the file of the Motor Accident Claims Tribunal, Additional Sub Judge,
                     Chengalpattu.


                                   For Appellants             : Mr.N.M.Elumalai
                                   For Respondent No.2        : Mrs.Ratna Tara - R2
                                                                  ----

                                                         JUDGMENT

Dissatisfied with the judgment and decree, dated 02.09.2006,

passed by the tribunal in awarding compensation of Rs.1,18,000/- along with

interest at the rate of 9% per annum, the claimants are before this Court for

enhancement of compensation.

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2. It is the case of the Appellants/Claimants that on 18.06.1994 at about

11.30 a.m, the deceased-Sundaramoorthy was traveling as load man in the lorry

bearing Reg. No. TN-04-B-1755 from Chithamur towards Maduranthagam.

While the said lorry proceeding on the Thatchur Kottu Road, the driver of the

lorry drove rashly and negligently and dashed against the bus bearing no. TN-

21-Y-7899 which came in the opposite direction. As a result of which, the lorry

capsized and the said Sundramoorthy and other two person travelled as load

men in the said lorry sustained fatal injuries and died on the spot. The legal

heirs of the deceased Sundaramoorthy, filed a claim petition before the tribunal,

claiming compensation of Rs.3,50,000/- for the death of Sundramoorthy.

3. Before the Tribunal, witnesses P.W.1 to P.W.3 were examined and

Exhibits P1 to P9 were marked on the side of the claimants whereas no

documents were marked and no witness were examined on the side of the

respondents. After analyzing both oral and documentary evidences, the

Tribunal has awarded Rs.1,18,000/- as total compensation along with interest at

the rate of 9% p.a from the date of petition till realization.

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4. The main contention of the learned counsel appearing for the

Appellants/Claimants is that the tribunal without considering the fact that the

deceased as load man was earning Rs.5000/-, and fixed monthly income at

Rs.1000/-, after deducting 1/3 of the income towards personal and living

expenses, applying multiplier 16, has awarded compensation at Rs.96,000/-

towards Loss of dependency to the family. According to the learned counsel for

the appellants the said compensation is erroneous and require to be modified.

Further the sum awarded under other heads are also very less, hence sough for

enhancement of compensation.

5. On the other hand, the learned counsel appearing for the 2nd

respondent/Insurance Company objected for enhancement of compensation and

justified the award passed by the tribunal is reasonable and fair and therefore

does not warrant interference by this Court.

6. Heard the learned counsel appearing for the appellants/ claimants

and the learned counsel appearing for the 2nd respondent/Insurance Company

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and perused the materials available on record.

7. From perusal of the award, it is seen that though the

claimants/appellants herein have stated that the deceased was earning monthly

income at Rs.5,000/-, the tribunal has fixed Rs.750/-. This Court by

considering the avocation of the deceased and the year of the accident is

inclined to enhance the monthly income. Accordingly, a sum of Rs.1000/- is

fixed as monthly income for the deceased. Likewise, the deduction of 1/3 of

income towards personal and living expenses and mulitplier 16 adopted by the

tribunal are also required to be modified as per the principles of law laid down

by the Hon'ble Supreme Court. Considering the number of claimants, 1/4 of

the income has to be deducted towards personal and living expenses, which

comes to Rs.750. Further, according to the age of the deceased who was 28

years at the time of the accident, the correct multiplier to be adopted is 17. By

applying the above principles, the loss of dependency is calculated to

Rs.1,53,000/- (750 x 12 x 17). The tribunal has awarded a sum of Rs.5000/-

towards loss of consortium to the wife of the deceased/1st appellant herein, the

same is enhanced to Rs.20,000/-. The compensation of Rs.5000/- each for the

claimants 2 to 4 under the head loss of love and affection is also enhanced to

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Rs.20,000/- each under the said head. The tribunal failed to grant compensation

to the 5th appellant, who is the mother of the deceased under the head loss of

love and affection, hence a sum of Rs.20,000/- is granted under the said to the

5th appellant. Likewise, a sum of Rs.15,000/- is also granted under the head

'Loss of Estate” and the compensation grated for Funeral expenses is enhanced

to Rs.15,000/- from Rs.2000/-.

8. Thus, the compensation modified by this Court under various head is

as follows;

                                           Heads             Compensation             Compensation
                                                             awarded by the            enhanced/
                                                                tribunal             Awarded by this
                                                                   Rs.                  Court Rs.
                                   Loss of Dependency                   96,000/-         1,53,000
                                   Loss of consortium to                  5,000/-         20,000
                                   1st appellant
                                   Loss of Love &                        15,000/-        80,000
                                   Affection               (Rs.5000/- each to the (Rs.20,000/- each
                                                                appellants 2 to 4) to the appellants 2
                                                                                                 to 5)
                                   Loss of Estate                              ...        15,000
                                   Funeral Expenses                       2,000/-         15,000
                                               Total                  1,18,000/-        2,83,000/-








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                                                                                C.M.A.No.2755 of 2011

9. In the result, this Civil Miscellaneous Appeal is partly allowed and a

sum of Rs. 1,18,000/- awarded by the tribunal is enhanced to Rs.2,83,000/-. The

rate of interest for the enhanced compensation amount is fixed by this Court at

7.5% per annum from the date of petition till the date of deposit. This Court

makes it clear that the revised rate of interest at 7.5% per annum is only for the

enhanced compensation amount.

10. The 2nd respondent is directed to deposit the entire compensation

amount along with interest as modified by this Court, less the amount already

deposited, within a period of six weeks from the date of receipt of a copy of this

judgment. On such deposit, the appellants/claimants are permitted to withdraw

the compensation as modified by this Court along interest and costs, after

adjusting the amount, if any, already withdrawn, by filing necessary