Madras High Court

Anjalai vs P.Ramachandran on 18 February, 2021

                                                                           C.M.A.No.835 of 2011

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 18.02.2021

                                                         CORAM:

                                   THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR

                                      Civil Miscellaneous Appeal No.835 of 2011


                     1.Anjalai,
                       W/o Moorthy

                     2.Moorthy,
                       S/o Dharma Gounder                                       ... Appellants


                                                          ..vs..

                     1.P.Ramachandran,

                     2.M/s.United India Insurance Company Limited,
                       No.14, Whites Road,
                       Sudharsan Building,
                       Chennai-600014.                           ... Respondents


                               Appeal filed under Section 173 of the Motor Vehicles Act,
                     1988, against the judgment and decree dated 16.12.2010 in
                     M.C.O.P.No.17 of 2007, on the file of the Motor Accident Claims
                     Tribunal, Subordinate Court, Madurantagam.


                                   For Appellants       : Mr.Goviganesan
                                   For Respondents      : Mr.M.J.Vijayaraghavan for R2
                                                          No Appearance for R1
                                                           ----

                     1/12



https://www.mhc.tn.gov.in/judis/
                                                                             C.M.A.No.835 of 2011




                                                      JUDGMENT

The matter is heard through "Video Conferencing".

This appeal has been filed for enhancement of the

compensation granted by the Tribunal in award dated 16.12.2010,

made in M.C.O.P. No.17 of 2007, on the file of the Motor Accident

Claims Tribunal, Subordinate Court, Madurantagam.

2.The appellants herein are the claimant, initially filed

M.C.O.P. No.17 of 2007, on the file of the Motor Accident Claims

Tribunal, Subordinate Court, Madurantagam, claiming a sum of

Rs.7,76,000/- restricted to Rs.5,00,000/- as compensation for the

death of their son namely Chandran in the accident that took place

on 13.12.2006 at about 2.30 p.m.

3. According to the claimants/appellants herein, on

13.12.2006 at about 2.30 p.m when the deceased student

Chandran who was studying 3rd standard in C.S.T School,

Madurantakam, was walking on the mud portion of the road, the car

bearing Reg.No. TN-32-M-5555 owned by first respondent driven in

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a rash and negligent manner and hit against him, causing grievous

injuries in his head. He was initially admitted in Government

Hospital at Madurantakam and referred to Government Hospital at

Chengalpattu for treatment and further referred to Government

Rajaji Hospital, Chennai. He he was admitted as inpatient from

13.12.2006 to 17.12.2006 and he declared died on 17.12.2006 due

to head injury. The accident had taken place only because of the

rash and negligent act of the driver namely G.Baskar. Hence, the

claimants filed claim petition, claiming compensation for a sum of

Rs.5,00,000/-.

4.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 car bearing Reg.No. TN-

32-M-5555 belonging to the 1st respondent and directed the 2nd

respondent being insurer of the offending vehicle to pay a sum of

Rs.1,05,000/- along with interest @ 7.5% per annum as

compensation to the appellants.

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5. Not being satisfied with the amounts awarded by the

Tribunal in the award dated 16.12.2010, made in M.C.O.P. No.17 of

2007, the claimants have come out with the present appeal.

6. The learned counsel appearing for the appellants contended

that the deceased was studying in 3rd standard , he is a brilliant

student. Due to sudden death, the claimants have got severe

mental agony and pain, loss of love and affection and loss of his

service to them. Without considering all these factual aspects, the

tribunal has awarded a sum of Rs.1,05,000/- as compensation,

against the claim of Rs.5,00,000/- without considering the evidence

and documents in prospective manner. The tribunal has also erred

in not awarding any amount to the claimants towards future

prospects because of the loss of their son, therefore the

compensation awarded requires enhancement.

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7. On the other hand, the learned counsel appearing for the

2nd respondent insurance company denied the mode of accident as

narrated by the appellants/claimants and also denied the negligence

on the part of the dirver of the insured vehile. Therefore, the

appeal is liable to be dismissed.

8. Heard learned counsel appearing for the appellant as well

as the 2nd respondent-Insurance Company and perused the

materials available on record.

9. On the basis of the factual and rival contentions urged by

the learned counsels appearing for the parties concerned, the

following points needs to be answered;

● Whether the 2nd respondent/Insurance Company is liable to

pay compensation.

● Whether the the tribunal erred in not following the ratio as per

the principles of law laid down by the Hon'ble Apex Court in

deciding compensation on the death of children below 15

years.

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● Whether the appellants are entitled for enhancement of

compensation, if so what amount ?

10. On perusal of documents, it is not in dispute that the

deceased was a student studying 3rd standard, aged about 7 years

and died due to the accident. Further there is no dispute with regard

to the existence of coverage of the insurance policy with the 2 nd

respondent/Insurance Company at the time of the accident. Though

the learned counsel appearing for the insurance company strongly

denied the negligence on the part of the driver of the insured

vehicle, no contra evidence has been placed by the 2 nd

respondent/Insurance Company. Ex.P7/Motor Inspector's Report

confirms the said information. Therefore, this Court confirms the

award passed by the tribunal in respect of negligence on the part of

the driver of the car. Hence, the 2nd respondent-insurance company,

being insurer of the offending vehicle, is liable to pay compensation.

The first point is answered accordingly.

11. As regards the compensation awarded by the tribunal has

observed that the deceased student was a young boy studying 3 rd

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standard, there would not be any loss of income to the parents,

hence awarded a sum of Rs.1,00,000/- (Rs.50,000 each) under the

head “Pain and Mental Agony' and Rs.50,000/- towards 'Funeral

Expenses' . In total Rs.1,05,000/- was awarded by tribunal for the

death deceased 4 years young boy. This Court is not satisfied with

the said compensation and the same is required to be enhanced in

view of the recent judgments of the Hon'ble Supreme Court and this

Court.

In the case of Kishan Gopal and Another and Lala &

Others in Civil Appeal No.7137 f 2013, the Hon'ble Supreme

Court held as follows;

“18. .......... In our considered view, the aforesaid legal principle laid down in Lata Wadhwa's case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years' old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non- earning member prior to the date of accident was fixed at Rs.15,000/-. Further, the

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deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma Vs. Delhi Transport Corporation, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites arrived at Rs.

1,50,000/- towards of loss of income of the deceased.”

12. Applying the principles laid down by the Hon'ble Supreme

Court in the case referred to supra, this Court is inclined to

enhance the award amount to the claimants, who are the parents of

deceased seven years old young boy.

13. The tribunal had rejected the claim under the head' Loss

of Income' to the parents/claimants, stating reason that deceased

student was a young boy studying 3rd standard, there would not be

any loss of income to the parents. In view of the Judgment of the

Hon'ble Supreme Court, the deceased boy, had he been alive,

https://www.mhc.tn.gov.in/judis/ C.M.A.No.835 of 2011

would have certainly contributed substantially to the family of the

appellants by working hard and reach great heights. Therefore, it

would be reasonable to fix notional income of Rs.15000/- and

further by taking age of the mother, who was about 35 years old, at

the time of the accident, by applying the legal principles laid down

in the case of Sarala Verma Vs.Delhi Transport Corporation, the

multiplier of 16 is applied. Thus , Rs.2,40,000/- is granted under

the head 'Loss of Income'.

14. Further, the tribunal has awarded a sum of RS.1,00,000/-

(Rs.50,000/-each to the claimants) towards 'Pain & Mental Agony.

The said amount is on the higher side, in the absence of not

granting any amount under the head 'Loss of Love and Affection”.

Though the love and affection of the parents cannot be measured

and portrayed in a clear terms of money, it is just proper to award

a sum of Rs.20,000/- (Rs.10,000/- each). In view of granting the

sum under the head 'Loss of Love and Affection' by this Court, the

sum awarded by the tribunal under the head 'Pain and Mental

Agony' is deleted. Further a sum of Rs.5000/- awarded by the

tribunal for Funeral Expenses is enhanced to Rs.10,000/-.

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15. Thus, the compensation awarded by the Tribunal is

modified as follows:

                            S.     Description          Amount      Amount       Award
                            No                         awarded by awarded by confirmed
                                                        Tribunal   this Court or enhanced
                                                          (Rs)        (Rs)     or granted

                            1.     Pain and Mental          1,00,000               ...   Set aside
                                   Agony
                            2.     Funeral Expenses              5000        10,000      Enhanced
                            3.     Loss of Love and                ...       20,000       granted
                                   Affection
                                   (Rs.10,000/-each)
                            4.     Loss of Income                  ...     2,40,000       granted
                                   Total                1,05,000/-       2,70,000/- Enhanced
                                                                                    by
                                                                                    Rs.165000/

16. In the result, the appeal is allowed and the amount

awarded by the Tribunal at Rs.1,05,000/- is enhanced to

Rs.2,70,000/- together with interest at the rate of 7.5% per annum

from the date of petition till the date of deposit. The 2nd 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, within a period of eight

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weeks from the date of receipt of a copy of this judgment, to the

credit of M.C.O.P. No.17 of 2007. On such deposit, the

appellants/claimants are permitted to withdraw the enhanced award

amount, now determined by this Court, along with interest and