Madras High Court
D.Kuppusamy vs R.Selvaraj on 19 February, 2021
CMA No.3434 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 19.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
CMA.No.3434 of 2012
1. D.Kuppusamy
2. K.Devika
3. K.Mohana ... Appellants/ claimants
Vs.
1. R.Selvaraj
2. The New India Assurance company Limited
No.1, Bharathi Road, Arcot Woodlands Buildings,
Cuddalore. ... Respondents/ Respondents
This Civil Miscellaneous Appeal has been filed under
Section 173 of the Motor Vehicles Act, 1988, against the decree and
judgment dated 07.12.2010 passed in M.C.O.P.No.1647 by the Chief
Judicial Magistrate, Motor Accident Claims Tribunal, Cuddalore.
For Appellants : Mr.R.Muralidharan
For II respondent : Mr.R.Neethiperumal
Page 1 of 11
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CMA No.3434 of 2012
JUDGMENT
Aggrieved over the orders passed by the Tribunal, the
claimants are before this court to enhance the compensation awarded by
the Tribunal.
2. The claimants have filed a claim petition before the
Tribunal seeking compensation of Rs.15,00,000/- for the death of one
K.Saravanan, son of the first and second claimants and brother of the
third claimant, in a road accident that took place on 23.05.2007.
3. The brief case of the claimants is as follows: On
23.05.2007 at about 3.30 p.m., the deceased was travelling in a bus
bearing registration No.TN-46-C-2939 as a passenger to go to
Sethiyathoppu, Srimushnam and while the bus was nearing Annur
Theepaintha Nachiyar Koil, the driver of the bus drove the vehicle in a
rash and negligent manner, thereby the deceased fell down from the bus
and sustained grievous injuries all over his body and head and
immediately he was taken to Government Hospital, Chidambaram,
however he died on the way to hospital. According to the claimants, the
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CMA No.3434 of 2012
rash and negligent driving of the driver of the bus was the cause of
accident and since the first respondent/ owner of the vehicle insured his
bus with the second respondent/ insurance company, both of them are
liable to pay compensation.
4. The claim petition was resisted by the second respondent
by filing counter affidavit.
5. Before Tribunal, first claimant and one another witness
were examined as PW1 and PW2 respectively and Ex.P1 to Ex.P7 were
marked. On the side of the respondents, no oral and documentary
evidence was adduced.
6. After analysing the evidence on record, the Tribunal has
awarded a sum of Rs.3,40,000/- to the claimants, however, after
deducting 50% towards contributory negligence on the part of the
deceased, a sum of Rs.1,70,000/- was awarded. The compensation
awarded under various heads are extracted hereunder.
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CMA No.3434 of 2012
Sl Heads Amount in
No Rs.
1 Loss of dependency 3,30,000
(5000x12 - 50% x 11)
2 Transportation charges 5,000
3 Funeral expenses 5,000
Total 3,40,000
Deducted 50% towards 1,70,000
contributory negligence
Aggrieved over the compensation awarded by the Tribunal, the the
claimants have filed the present appeal to enhance the compensation.
7. Heard the learned counsel for the appellant and I have
perused the materials on record.
8. The learned counsel appearing for the appellants
submitted that the deceased was working as an operator in a cinema
theatre and was earning a sum of Rs.7500/- plus R.50/- as daily batta, as
per Ex.P7, however, the Tribunal has erred in fixing the monthly
income of the deceased as Rs.5,000/-. Further, he submitted that the
age of the deceased was 28 years at the time of accident, but the
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CMA No.3434 of 2012
Tribunal has taken the average age of the claimants and wrongly
adopted the multiplier '11' and that the Tribunal has not awarded any
amounts towards " Love and affection" and " Loss of estate". He also
submitted that the Tribunal has overlooked the evidence of eyewitness
namely the PW2 and wrongly 50% contributory negligence on the part
of the deceased and the compensation awarded by the Tribunal is very
meagre and hence, prayed for enhancement of compensation.
9. The learned counsel appearing for the second
respondent/ insurance company submitted the deceased was travelling
in the foot board of the bus and hence, the Tribunal has rightly fixed
50% contributory negligence on the part of the deceased. He further
submitted that though salary certificate was produced, to prove the
same, the employer was not examined on the side of the claimants and
hence, the Tribunal has rightly fixed the monthly income of the
deceased as Rs.5,000/-. He also submitted that the compensation
awarded under the other heads are also just and reasonable and
therefore, the award passed by the Tribunal does not warrant any
interference by this court.
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CMA No.3434 of 2012
10. Now the point for consideration is whether the
compensation awarded by the Tribunal has to be scaled down.
11. Point
It is contended by the claimants that the deceased was
working as an operator in a cinema theatre and was earning a sum of
Rs.10,000/- including batta. Ex.P7 salary certificate, issued by the
Proprietor of Lakshmi Talkies was produced before the Tribunal. In the
salary certificate, it has been stated that the salary of deceased was
Rs.7500/- and daily batta was Rs.50/-. However, since the employer
was examined to prove the Ex.P7, the Tribunal has rightly fixed the
monthly income of the deceased as Rs.5,000/- and the same does not
warrant any interference by this court. As per the decision of the
Constitution Bench of the Hon'ble Supreme Court of India in National
Insurance Company Limited Vs. Pranay Sethi and others reported in
2017 (2) TN MAC 609 (SC), 40% should be added towards future
prospects. The age of the deceased was 28 years on the date of accident
and therefore, proper multiplier to be adopted in the instant case is '17' ,
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CMA No.3434 of 2012
as per per the decision rendered in Sarla Varma and others vs. Delhi
Transport Corporation and another reported in (2009) 6 SCC 121.
In the instant case, the deceased was died as a bachelor. In Sarla Varma
case (cited supra), at paragraph No.30, 31 and 32, it is held that if the
deceased was a bachelor and the claim petition was filed by the parents,
the deduction would normally be 50% as personal and living expenses
of the bachelor. Thus, loss of dependency is calculated as 5000+ 2000
- 50% x12x17= 7,14,000/-. Accordingly a sum of Rs.7,14,000/- is
awarded towards " Loss of dependency ". Apart from this amount, the
first and second claimants are also entitled to Rs.40,000/- each towards
" loss of love and affection " and Rs.15,000/- each towards "loss of
estate" and "funeral expenses" respectively.
12. The contention of the appellants is that, the deceased
was travelled in the foot board and therefore, the Tribunal has fixed
50% negligence on the part of the deceased, which is on the higher side.
The foot board travelling by the deceased was not disputed by both the
parties. However, the negligence is not only on the part of the deceased
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CMA No.3434 of 2012
but also on the part of the insured vehicle. Hence, this court opines that
it is appropriate to fix 20% contributory negligence on the part of
deceased. Accordingly, the revised compensation awarded under
various heads is extracted hereunder.
Sl.N Heads Compensation Compensation
o Awarded by the enhanced/
Tribunal Awarded by this
court
1 Loss of dependency 3,30,000 7,14,000
(5000x12-50% x (5000+2000
11) -50% x12 x17)
2 Loss of love affection to - 40,000
the first claimant
3 Loss of love affection to - 40,000
the second claimant
4 Transportation charges 5,000 10,000
5 Funeral expenses 5,000 15,000
6 Loss of Estate - 15,000
Total 3,40,000 8,34,000
1,70,000 6,67,200
Deducted 50% (Deducted 20%
towards towards
contributory contributory
negligence negligence)
This amount shall carry interest at the rate of 7.5% per annum from the
date of claim petition till the date of deposit.
13. In the result,
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CMA No.3434 of 2012
(i) The Civil Miscellaneous Appeal is partly allowed and
the award passed by the Tribunal is enhanced from 1,70,000/- to
Rs.6,67,200/-. No costs.
(ii) The appellant/insurance company is directed to deposit
the revised compensation of Rs.6,67,200/- with interest at the rate of
7.5.% p.a. from the date of claim petition till the date of deposit, less
the amount if already deposited, within a period of eight weeks from the
date of receipt of a copy of this order.
(iii) On such deposit being made by the insurance
company, the claimants are entitled to withdraw the same, as per the
apportionment made by the Tribunal, after following due process of
law.
19.02.2021
Index:Yes/No
Internet:Yes/No
Speaking/non Speaking order
mst
To
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CMA No.3434 of 2012
The New India Assurance company Limited
No.1, Bharathi Road, Arcot Woodlands Buildings,
Cuddalore.
https://www.mhc.tn.gov.in/judis/
CMA No.3434 of 2012
D. KRISHNAKUMAR, J.
mst
CMA. No.3434 of 2012 and
19.02.2021
https://www.mhc.tn.gov.in/judis/
