Madras High Court
C.Saraswathi vs M.Ravichandran on 8 July, 2021
C.M.A.(MD)No.529 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 08.07.2021
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.M.A.(MD)No.529 of 2013
C.Saraswathi
A.Salomi (Died) ..Appellant
Vs.
1.M.Ravichandran
2.T.Pushpam
3.National Insurance Company Limited,
Rep. By its Branch Manager, with office,
at P.B. No.112, North Car Street,
Nagercoil.
4.T.Prema .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the judgment and decree dated 27.10.2009 passed in
M.C.O.P.No.93 of 2004 on the file of the Motor Accidents Claims Tribunal/District
Judge, Kanyakumari at Nagercoil.
For Appellant : Mr.T.Lajapathi Roy
For 3rd Respondent : Mr.P.Malini
For Respondents 1 and 2 : No Appearance
For 4th Respondent : Died for default vide order 26.06.2018
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award passed
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C.M.A.(MD)No.529 of 2013
in M.C.O.P.No.93 of 2004 dated 27.10.2009, on the file of the Motor Accidents
Claims Tribunal/District Judge, Kanyakumari at Nagercoil.
2.The appellant herein is the petitioner and the respondents herein are the
respondents in the claim petition. The appellant has filed a claim petition in
M.C.O.P.No.93 of 2004, claiming compensation for the death of one Thambiraj in an
accident that took place on 17.06.2003. The Tribunal has awarded a sum of
Rs.3,25,000/- (Rupees Three Lakhs Twenty Five Thousand only) as compensation.
Against which, the appellant has preferred this appeal.
3.A brief substance of the claim petition in M.C.O.P.No.93 of 2004 is as
follows:
The first petitioner is the wife, one Salomi is the mother and the fourth
respondent is the sister of the deceased. The mother of the deceased died during the
pendency of the case. The first petitioner and fourth respondent are her legal heirs.
The deceased was aged about 13 years at the time of accident. He was working as a
loadman in the lorry and was earning Rs.5,200/- per month. On 17.06.2003, at about
09.00 a.m., when the deceased was riding his TVS champ two wheeler, a lorry
bearing registration No.TACS-5451 that belongs to the second respondent, was
driven by the first respondent in a rash and negligent manner, hit against the two
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C.M.A.(MD)No.529 of 2013
wheeler from the back side. The deceased fell down and the left rear wheel of the
lorry run over him and the deceased died on the spot. The claimants are the
dependants of the deceased and they claimed a sum of Rs.8,00,000/- (Rupees Eight
Lakhs only) as compensation.
4.A brief substance of the counter filed by the third respondent therein is
as follows:
The age, income and occupation of the deceased and the manner of the
accident are all denied. The first respondent drove the vehicle in a careful manner.
The accident occurred due to the negligence of the deceased. The deceased was not
having a driving licence at the time of accident. Two wheeler was not insured. The
owner of the two wheeler and the insurance company of the two wheeler are
necessary parties. The claim is excessive.
5.A brief substance of the counter filed by the fourth respondent therein is
as follows:
The fourth respondent is only an unmarried sister of the deceased. The
second petitioner was the mother of the deceased. The fourth respondent is entitled
to half of the share of the second petitioner and prayed half share in the
compensation amount.
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C.M.A.(MD)No.529 of 2013
6.On the side of the petitioner, 3 witnesses were examined and seven
documents were marked and on the side of the respondents, two witnesses were
examined and one document was marked. After trial, the Tribunal has awarded a sum
of Rs.3,25,000/- (Rupees Three Lakhs Twenty Five Thousand only) as compensation
to be paid by the respondents 1 to 3. Against which, the appellant has preferred this
Civil Miscellaneous Appeal.
7.On the side of the appellant, it is stated that the Tribunal has failed to
consider Kalpana case wherein, monthly income was fixed as Rs.4,500/-. There was
oral and documentary evidence to prove that the deceased was earning Rs.5,200/- per
month at the time of accident. The Tribunal failed to consider the future prospects.
The fourth respondent, who is the father of the deceased does not deserve any
compensation. On the side of the appellant, it is stated that an additional income of
40% has to be fixed as the future prospects and the compensation fixed on various
grounds has to be enhanced.
8.On the side of the appellant, it is stated that an average income of Rs.
10,000/- can be fixed. The following judgments reported in (i)2010 ACJ 2046,
(ii)2010 (1) TNMAC 401 and (iii)2010 (1) TNMAC 246 are cited, wherein this
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C.M.A.(MD)No.529 of 2013
Court has granted additional 30% of the monthly salary towards future prospects.
9.On the side of the respondents, it is stated that age of the deceased at the
time of accident is 40 years. There is no other document to prove the age, except
Ex.P2 post morterm certificate. A sum of Rs.4,000/- is fixed as income as per the
Kalpana case, reported in 2010 (1) TNMAC 80. Considering the age of the deceased
and considering the judgment rendered in Praney Sethi case, 25 % of the income is
added towards future prospects. Hence, a sum of Rs.5,600/- is fixed as income.
Considering the number of the dependants of the deceased, 1/3 rd of the income has to
be deducted towards personal expenses. After deducting 1/3rd of the income towards
personal expenses, the monthly income is arrived at Rs.3,750/-.
10.Since the age of the deceased at the time of accident is 40 years,
multiplier '14' is applicable as per Sarala Varma case. The total loss of income is Rs.
6,30,000/-. As per Praney Sethi case, the petitioners are entitled to a sum of Rs.
70,000/- for loss of love and affection, loss of consortium and funeral expenses.
Hence, the total compensation amount awarded is Rs.7,00,000/-(Rupees Seven
Lakhs only).
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C.M.A.(MD)No.529 of 2013
11.On the side of the appellant, it is stated that the percentage of interest
per annum has to be increased to 9%. The following judgments of the Hon'ble
Supreme Court reported in (i)2010 ACJ 1245, (ii)2010 ASJ 2045 and (iii)2010 (1)
TNMAC 476 and 2010 ACJ 2117 are cited, wherein this Court has fixed 9% interest
per annum for the award amount.
12.The rate of interest for the enhanced amount is calculated from the date
of appeal. The Tribunal has awarded a sum of Rs.3,25,000/- with interest at 7.5 %
from the date of filing of the petition. Hence, it is decided that the respondents are
directed to pay interest at the rate of 7% for a sum of Rs.3,25,000/- from the date of
filing of the petition. The respondents have to pay interest at the rate of 7.5% for the
enhancement amount from the date of appeal.
13.In the result, this Civil Miscellenaous Appeal is partly allowed. The
claimants are entitled to a sum of Rs.7,00,000/- (Rupees Seven Lakhs only) as
compensation with interest at the rate of 7.5% from the date of the petition for a sum
of Rs.3,25,000/- and for the enhancement award amount from the date of appeal the
date of realization.
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C.M.A.(MD)No.529 of 2013
14.On the side of the fourth respondent, it is stated that the fourth
respondent is entitled for ½ share in the compensation. On the side of the appellant,
it is stated that the the fourth respondent is not entitled for any compensation. The
forth respondent is the sister of the deceased. As the legal heir of the second
claimant, she is entitled for ½ of the share of the second claimant. Hence, it is
decided that the first appellant/first claimant is entitled to Rs.5,25,000/- (Rupees Five
Lakhs Twenty Five Thousand only) towards his share in the compensation amount
and the fourth respondent is entitled to a sum of Rs.1,75,000/- (Rupees One Lakh
and Seventy Five Thousand only) as his share in the compensation amount.
15.The respondents 1 to 3 are directed to deposit Rs.7,00,000/- (Rupees
Seven Lakhs only) with 7.5% interest for Rs.3,25,000/- from the date of filing of
original claim petition and with interest at the rate of 7.5% for Rs.2,75,000/- from the
date of the appeal till the date of realization and the amount if not deposited earlier,
has to be deposited within a period of 8 weeks from the date of receipt of copy of
this order. On such deposit, the first claimant is entitled to a sum of Rs.5,25,000/-
and the fourth respondent is entitled to a sum of Rs.1,75,000/- as compensation. The
first appellant and the fourth respondent are permitted to withdraw their respective
shares with proportionate interest after deducting any amount received by them
earlier without filing any formal petition before the Tribunal. Excess amount, if any
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C.M.A.(MD)No.529 of 2013
R. THARANI, J.
MRN
deposited shall be refunded to the respondents 1 to 3. The claimants are not entitled
for interest for the default period, if there is any. No Costs.
08.07.2021
Index : Yes/No
Internet : Yes/No
MRN
Note : In view of the present lock down owing to COVID – 19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the copy of
the order that is presented is the correct copy, shall be the responsibility of the
advocate / litigant concerned.
To
1.The Motor Accidents Claims Tribunal, District Judge,
Kanyakumari, Nagercoil.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
C.M.A.(MD)No.529 of 2013
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