Madras High Court
Mary Bai vs K.Mohan on 11 January, 2021
C.M.A.No.2988 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.2988 of 2019
1.Mary Bai
2.R.Anbudass
3.R.Anbarasi .. Appellants
Vs.
1.K.Mohan
(R1 remained exparte before the Tribunal
and hence, his presence is dispensed with)
2.Iffco Tokio General Insurance Company Ltd.
No.28, North Usman road
T.Nagar, Chennai-600 017. .. Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated 13.07.2017 made
in M.C.O.P.No.494 of 2014 on the file of Motor Accident Claims Tribunal, II
Additional District Court, Poonamallee.
1/8
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C.M.A.No.2988 of 2019
For Appellants : Mrs.A.Subadra
for Ms.M.Malar
For R2 : Mr.S.Arunkumar
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 13.07.2017 made in
M.C.O.P.No.494 of 2014 on the file of Motor Accident Claims Tribunal, II
Additional District Court, Poonamallee.
2.The appellants are claimants in M.C.O.P.No.494 of 2014 on the file
of Motor Accident Claims Tribunal, II Additional District Court,
Poonamallee. They filed the said claim petition claiming a sum of
Rs.10,00,000/- as compensation for the death of one Royappan, who died in
the accident that took place on 08.02.2014.
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C.M.A.No.2988 of 2019
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent riding by
the rider of the motorcycle belonging to the 1st respondent and directed the 2nd
respondent/Insurance Company being insurer of the said motorcycle to pay a
sum of Rs.6,45,160/- 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 running a provision shop and was
earning a sum of Rs.10,000/- per month. The Tribunal without considering
the same, fixed only a meagre sum of Rs.5,000/- per month as notional
income of the deceased. The Tribunal failed to consider the age and income
of the deceased. The deceased was aged 56 years at the time of accident. The
Tribunal erred in applying multiplier '8' instead of '9'. The Tribunal has not
awarded any amount towards future prospects. The Tribunal ought not to
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C.M.A.No.2988 of 2019
have deducted 1/3rd towards personal expenses of the deceased. The Tribunal
has not awarded any compensation towards loss of estate. The amounts
awarded by the Tribunal under different heads are meagre and prayed for
enhancement of compensation.
6.The learned counsel appearing for the 2nd respondent/Insurance
Company contended that the appellants failed to prove the avocation and
income of the deceased. In the absence of any material evidence, the Tribunal
fixed a sum of Rs.5,000/- per month as notional income of the deceased,
which is not meagre. The amounts awarded by the Tribunal towards funeral
expenses, loss of consortium to the 1st appellant and loss of love and affection
to the appellants 2 and 3 are excessive. Therefore, the appellants are not
entitled to any 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.
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C.M.A.No.2988 of 2019
8.From the materials on record, it is seen that it is the contention of the
appellants that the deceased was running a provision store and was earning a
sum of Rs.10,000/- per month. The appellants failed to substantiate the said
contention. In the absence of any material evidence, the Tribunal fixed a sum
of Rs.5,000/- per month as notional income of the deceased. The accident is
of the year 2014 and the notional income fixed by the Tribunal is meagre.
Hence, a sum of Rs.7,500/- per month is fixed as notional income of the
deceased. As per Ex.P4/Post-mortem certificate, the deceased was aged 56
years at the time of accident. The Tribunal applied multiplier '8', which is not
correct. As per the judgment of the Hon'ble Apex Court reported in 2009 (2)
TNMAC 1 SC Supreme Court (Sarla Verma vs. Delhi Transport
Corporation), the correct multiplier applicable is '9'. The Tribunal has not
granted any enhancement towards future prospects. As per the judgment of
the Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC) [National
Insurance Co. Ltd. v. Pranay Sethi and others], the appellants are entitled
to 10% enhancement towards future prospects. There are three dependents of
the deceased. The Tribunal rightly deducted 1/3rd towards personal expenses
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C.M.A.No.2988 of 2019
of the deceased. Thus, the compensation awarded by the Tribunal towards
loss of dependency is modified to Rs.5,94,000/- (Rs.7,500/- + 750 [Rs.7,500/-
X 10%] 12 X 9 X 2/3). The Tribunal has awarded Rs.25,000/-, Rs.1,00,000/-
and Rs.2,00,000/- towards funeral expenses, loss of consortium to the 1st
appellant and loss of love and affection to the appellants 2 and 3 respectively,
which are excessive and hence, the same are hereby reduced to Rs.15,000/-,
Rs.40,000/- and Rs.40,000/- each respectively. The Tribunal has not awarded
any compensation towards loss of estate and hence, a sum of Rs.15,000/- is
awarded towards loss of estate. 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 3,20,160 5,94,000 Enhanced
dependency
2. Loss of 1,00,000 40,000 Reduced
consortium to
the 1st appellant
3. Loss of love 2,00,000 80,000 Reduced
and affection to
the appellants 2
and 3
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C.M.A.No.2988 of 2019
4. Funeral 25,000 15,000 Reduced
expenses
5. Loss of estate - 15,000 Granted
Total 6,45,160 7,44,000 Enhanced by
Rs.98,840/-
9.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.6,45,160/- is hereby
enhanced to Rs.7,44,000/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. It is made clear that
the appellants are not entitled for any interest for the delay period on the
amount of Rs.98,840/- enhanced by this Court as per the order of this Court
dated 15.07.2019 made in C.M.P.No.14229 of 2019 in C.M.A.SR.No.442 of
2018. 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
are permitted to withdraw their respective share of the award amount as per
the apportionment fixed by the Tribunal along with proportionate interest and
costs, less the amount if any, already withdrawn. No costs.
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C.M.A.No.2988 of 2019
11.01.2021
Index : Yes / No
kj
V.M.VELUMANI, J.,
kj
To
1.II Additional District Judge
(Motor Accident Claims Tribunal
Poonamallee.
2.The Section Officer
V.R.Section
High Court, Chennai.
C.M.A.No.2988 of 2019
11.01.2021
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