Madras High Court
T.Vanitha vs K.A.Farook on 22 February, 2021
C.M.A.No.412 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.412 of 2021
1.T.Vanitha
2.Minor. S.K.Iniyan
(Minor 2nd appellant represented by his
Mother, T.Vanitha, 1st appellant herein)
3.S.Sumathi
4.M.M.Sugumar .. Appellants
Vs.
1.K.A.Farook
2.M/s. Cholamandalam General Insurance Company Limited,
No.9, 1st Floor, Rajaji Road,
Peramanoor, Near Bus Stand,
Salem – 636 007. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
20.09.2017 made in M.C.O.P.No.115 of 2016 on the file of the Motor
Accident Claims Tribunal, Special District Court, Salem.
For Appellants : Mr.K.Varadha Kamaraj
for Mr.R.Thirunavukkarasu
For R2 : Ms.R.Sreevidhya
1/9
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C.M.A.No.412 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the award dated 20.09.2017 made in
M.C.O.P.No.115 of 2016 on the file of the Motor Accident Claims Tribunal,
Special District Court, Salem.
2.The appellants are the claimants in M.C.O.P.No.115 of 2016 on the
file of the Motor Accident Claims Tribunal, Special District Court, Salem.
They filed the above said claim petition, claiming a sum of Rs.35,00,000/- as
compensation for the death of one Kirubakaran, who died in the accident that
took place on 25.12.2015.
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 Eicher Van belonging to 1st respondent and directed the 2nd
respondent to pay a sum of Rs.12,49,128/- 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
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C.M.A.No.412 of 2021
compensation.
5.The learned counsel appearing for the appellants contended that at
the time of accident the deceased was aged 30 years, working as Sales
Representative in M/s. Shree Mahalakshmi Poultry Products, Krishnagiri,
doing Textile Manufacturing work and also doing Milk Vending Business
and was earning a sum of Rs.30,000/- per month. To prove the said
contention, the appellants examined one Prabakaran as P.W.3/employer of the
deceased. The Tribunal rejected the evidence of P.W.3 and fixed a meagre
sum of Rs.8,000/- per month as notional income of the deceased. There are
four dependants of the deceased and the Tribunal ought to have deducted
1/4th towards personal expenses of the deceased instead of deducting 1/3 rd.
The deceased was aged 30 years at the time of accident and the Tribunal
failed to grant any enhancement towards future prospects. The Tribunal ought
to have granted 40% enhancement towards future prospects of the deceased.
The Tribunal failed to award any amount towards loss of estate and
transportation and prayed for enhancement of compensation.
6.Per contra, learned counsel appearing for the 2nd respondent-
Insurance Company contended that the appellants have not produced any
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C.M.A.No.412 of 2021
material evidence to prove the avocation and income of the deceased. In the
absence of any material evidence with regard to avocation and income, a sum
of Rs.8,000/- per month fixed by the Tribunal as notional income of the
deceased is not meagre. The deceased was aged 31 years at the time of
accident and the appellants are not entitled to any enhancement towards
future prospects of the deceased and 1/3rd deduction made by the Tribunal
towards personal expenses of the deceased is proper. The amounts awarded
by the Tribunal towards loss of consortium to 1st appellant, funeral expenses,
loss of love and affection to 2nd appellant and loss of love and affection to
appellants 3 & 4 are highly excessive and hence, the appellants are not
entitled to any enhancement and prayed for dismissal of the appeal.
7.Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the 2nd respondent-Insurance Company and
perused the entire materials on record.
8.From the materials available on record it is seen that it is the case of
the appellants that at the time of accident the deceased was aged 30 years,
working as Sales Representative in M/s. Shree Mahalakshmi Poultry
Products, Krishnagiri, doing Textile Manufacturing work and also doing Milk
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C.M.A.No.412 of 2021
Vending Business and was earning a sum of Rs.30,000/- per month. To prove
the said contention, the appellants examined one Prabakaran as P.W.3, who is
the employer of the deceased. Except the oral evidence of P.W.3, the
appellants have not produced any material evidence like salary slip,
attendance register, wage register and salary certificate to prove their
contention. The Tribunal considering the year of accident and nature of work
done by the deceased, fixed a sum of Rs.8,000/- per month as notional
income of the deceased. The accident occurred in the year 2015. The notional
income fixed by the Tribunal is meagre. The cost of living has increased
enormously and salary of even unskilled workers has increased substantially.
Hence, a sum of Rs.13,000/- per month is fixed as notional income of the
deceased. The deceased was aged 31 years as per Ex.P6/driving license of the
deceased. The Tribunal has not granted any enhancement towards future
prospects of the deceased. As per the judgment of the Hon'ble Apex Court
reported in 2017 (2) TNMAC 609 (SC), [National Insurance Company
Limited Vs. Pranay Sethi and others, the appellants are entitled to 40%
enhancement towards future prospects. The Tribunal following the judgment
of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme
Court, [Sarla Verma & others Vs. Delhi Transport Corporation & another]
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C.M.A.No.412 of 2021
applied multiplier '16' and the same is proper. There are four dependants of
the deceased and the Tribunal ought to have deducted 1/4th towards personal
expenses of the deceased instead of deducting 1/3rd. Thus, the compensation
awarded by the Tribunal towards loss of dependency is modified to
Rs.26,20,800/- {Rs.18,200/- [Rs.13,000/- + Rs.5,200/- (40% of Rs.13,000/-)]
X 12 X 16 X 3/4}. The amounts awarded by the Tribunal towards loss of
consortium to 1st appellant, funeral expenses and loss of love and affection to
2nd appellant are excessive and hence, the same are reduced to Rs.40,000/-,
Rs.15,000/- and Rs.40,000/- respectively. The Tribunal failed to award any
amount towards loss of estate and transportation. The appellants are entitled
to a sum of Rs.15,000/- and Rs.10,000/- towards loss of estate and
transportation respectively.
9.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:
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C.M.A.No.412 of 2021
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Loss of dependency 10,24,128/- 26,20,800/- Enhanced
2. Funeral expenses 25,000/- 15,000/- Reduced
3. Loss of consortium 75,000/- 40,000/- Reduced
to 1st appellant
4. Loss of love and 75,000/- 40,000/- Reduced
affection to 2nd
appellant
5. Loss of love and 50,000/- 50,000/- Confirmed
affection to
appellants 3 & 4
6. Transportation - 10,000/- Granted
7. Loss of estate - 15,000/- Granted
Total Rs12,49,128/- Rs.27,90,800/- Enhanced by
Rs.15,41,672/-
10.In the result, this Civil Miscellaneous Appeal is allowed and the
compensation awarded by the Tribunal at Rs.12,49,128/- is hereby enhanced
to Rs.27,90,800/- 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 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.115 of 2016 on the file of the Motor
Accident Claims Tribunal, Special District Court, Salem. On such deposit, the
appellants 1, 3 & 4 are permitted to withdraw their respective share of the
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C.M.A.No.412 of 2021
award amount now determined by this Court, as per the ratio of
apportionment fixed by the Tribunal, along with proportionate interest and
costs, less the amount if any, already withdrawn by making necessary
applications before the Tribunal. The share of the minor 2nd appellant is
directed to be deposited in any one of the Nationalized Banks, till the minor
2nd appellant attains majority. On such deposit, the 1st appellant, being the
mother of the minor 2nd appellant is permitted to withdraw the accrued
interest once in three months for the welfare of the minor 2nd appellant. The
appellants are directed to pay the necessary Court fee for the enhanced
amount of compensation. No costs.
22.02.2021
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Index : Yes / No
Internet : Yes / No
To
1.The Special District Judge,
Motor Accident Claims Tribunal,
Salem.
2.The Section Officer,
VR Section,
High Court, Madras.
V.M.VELUMANI, J.
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C.M.A.No.412 of 2021
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C.M.A.No.412 of 2021
22.02.2021
https://www.mhc.tn.gov.in/judis/
