Madras High Court
R.Saraswathi vs Maria Bright Allwing on 5 February, 2021
C.M.A.No.96 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.96 of 2021
1.R.Saraswathi
2.Minor Dhinesh
3.Minor Manoj
(Minor appellants 2 and 3 rep. by
their mother R.Saraswathi/1st appellant)
4.Kamatchi .. Appellants
Vs.
1.Maria Bright Allwing
2.ICICI Lombard General Insurance
Company Limited
Third Party cell at
No.84/85, Arihant plaza, I floor
Wall tax road, Chennai-3. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 18.02.2020
made in M.C.O.P.No.306 of 2019 on the file of Motor Accident Claims
Tribunal, III Additional District Court, Tiruvallur at Poonamallee.
1/8
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C.M.A.No.96 of 2021
For Appellants : Mr.U.Chithambaram
for Mr.K.Varadha Kamaraj
For R2 : Mrs.R.Sreevidhya
JUDGMENT
This matter is heard through “Video-Conferencing”.
The Civil Miscellaneous Appeal is filed for enhancement of
compensation granted by the Tribunal in the award dated 18.02.2020 made in
M.C.O.P.No.306 of 2019 on the file of Motor Accident Claims Tribunal, III
Additional District Court, Tiruvallur at Poonamallee.
2.The appellants are claimants in M.C.O.P.No.306 of 2019 on the file
of Motor Accident Claims Tribunal, III Additional District Court, Tiruvallur at
Poonamallee. They filed the said claim petition claiming a sum of
Rs.35,00,000/- as compensation for the death of one N.Ramesh, who died in
the accident that took place on 25.04.2019.
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 Taurus lorry belonging to the 1st respondent and directed the
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C.M.A.No.96 of 2021
2nd respondent/Insurance Company being insurer of the said lorry to pay a
sum of Rs.20,07,500/- as compensation to the appellants.
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 at
the time of accident, the deceased was working as a lorry driver and was
earning a sum of Rs.25,000/- per month. The appellants have marked driving
license of the deceased as Ex.P6 to prove the avocation. The Tribunal without
considering the same, erred in fixing a meagre sum of Rs.10,000/- per month
as notional income of the deceased. The deceased was aged 39 years at the
time of accident. The Tribunal ought to have granted 40% enhancement
instead of 25% towards future prospects. The amounts awarded by the
Tribunal under different heads are meagre and prayed for enhancement of
compensation.
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C.M.A.No.96 of 2021
6.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that the appellants failed to
produce any document to prove the income of the deceased. In the absence of
any material to prove the income of the deceased, the Tribunal fixed a sum of
Rs.10,000/- per month as notional income of the deceased, which is not
meagre. The total compensation awarded by the Tribunal under different
heads are not meagre. The appellants have not made out any case for
enhancement of compensation and prayed for dismissal of the appeal.
7.Heard the learned counsel appearing for the appellants as well as the
2nd respondent/Insurance Company and perused the entire materials available
on record.
8.From the materials on record, it is seen that it is the contention of the
appellants that the deceased was working as a lorry driver and was earning a
sum of Rs.25,000/- per month. The appellants have marked driving license of
the deceased as Ex.P6 to prove the avocation. The appellants failed to produce
any document to prove the income of the deceased. In the absence of any
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C.M.A.No.96 of 2021
material evidence with regard to income of the deceased, the Tribunal fixed a
sum of Rs.10,000/- per month as notional income of the deceased, which is
meagre. The accident is of the year 2019 and hence, a sum of Rs.15,000/- per
month is fixed as notional income of the deceased. As per Ex.P6/driving
license of the deceased and Ex.P7/School Transfer Certificate, the date of
birth of the deceased is mentioned as 03.08.1979. On the date of accident, the
deceased completed 39 years 8 months 22 days. In view of the same, the
deceased was aged only 39 years at the time of accident. The Tribunal
erroneously fixed the age of the deceased as 40 years. As per the judgment of
the Hon'ble Apex Court reported in 2017(2)TNMAC 609 (SC) (National
Insurance Company v. Pranay Sethi), the appellants are entitled to 40%
enhancement towards future prospects. The Tribunal applied multiplier '15'
and deducted 1/4th towards personal expenses of the deceased, which are
proper. Thus, the compensation awarded by the Tribunal towards loss of
dependency is modified to Rs.28,35,000/- (Rs.15,000/- + 6000 [Rs.15,000/-
X 40%] X 12 X 15 X 3/4). The Tribunal awarded a sum of Rs.2,50,000/-
towards loss of love and affection, which is excessive. The appellants 2 to 4
are entitled to Rs.40,000/- towards loss of love and affection. The amounts
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C.M.A.No.96 of 2021
awarded by the Tribunal under all other heads are just and reasonable and
hence, the same are hereby confirmed. Thus, the compensation awarded by
the Tribunal is modified as follows:
S.No Description Amount Amount awarded Award
awarded by by this Court confirmed or
Tribunal (Rs) enhanced or
(Rs) granted or
reduced
1. Loss of 16,87,500 28,35,000 Enhanced
dependency
2. Loss of love 2,50,000 40,000 Reduced
and affection to
the appellants 2
to 4
3. Loss of 40,000 40,000 Confirmed
consortium
4. Loss of estate 15,000 15,000 Confirmed
5. Funeral 15,000 15,000 Confirmed
expenses
Total 20,07,500 29,45,000 Enhanced by
Rs.9,37,500/-
9.In the result, this Civil Miscellaneous Appeal is partly allowed and the
compensation awarded by the Tribunal at Rs.20,07,500/- is hereby enhanced
to Rs.29,45,000/- together with interest at the rate of 7.5% per annum from
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C.M.A.No.96 of 2021
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. On such deposit, the appellants 1 and 4 are permitted to withdraw
their respective share of the award amount now determined by this Court as
per the apportionment fixed by the Tribunal along with proportionate interest
and costs, less the amount if any, already withdrawn. The shares of the minor
appellants 2 and 3 are directed to be deposited in any one of the Nationalized
Banks, till the minors attain majority. The 1st appellant being mother of the
minor appellants 2 and 3 is permitted to withdraw the accrued interest, once
in three months for the welfare of the minors. No costs.
05.02.2021
Index : Yes / No
Internet : Yes/ No
kj
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C.M.A.No.96 of 2021
V.M.VELUMANI, J.,
kj
To
1.III Additional District Judge
Motor Accident Claims Tribunal
Tiruvallur at Poonamallee.
2.The Section Officer
V.R.Section, High Court, Chennai.
C.M.A.No.96 of 2021
05.02.2021
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