Madras High Court

Rethinam vs Nagamuthu on 20 July, 2021

                                                                             C.M.A.No.1856 of 2016

                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 20.07.2021

                                                        CORAM

                             THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE

                                                C.M.A.No.1856 of 2016

                      1. Rethinam
                      2.Lakshmi
                      3.Karpukarasan
                      4.Karpagavalli                          ...                Appellants

                                                              Vs

                      1.Nagamuthu
                      2.K.Veerasamy
                      3.Cholamandalam MS General Insurance Company Ltd.,
                      No.1, Rashmi Towers,
                      Village Road,
                      Nungambakkam,
                      Chennai – 34.                    ...                     Respondents


                      Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor

                      Vehicles Act, 1988, against the Judgment and decree dated 07.04.2016

                      made in MCOP.No.109 of 2014 on the file of the Motor Accidents Claims

                      Tribunal, District Judge at Karaikal.




                      1/10


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                                                                                         C.M.A.No.1856 of 2016




                                               For Appellants    : Mr.Poovendra Perumal

                                               For R-3           : Mr.Michael Visuvasam

                                               R-1 & R-2         : Exparte



                                                         JUDGMENT

(This Appeal has been taken up for hearing through Video Conferencing)

This Civil Miscellaneous Appeal has been filed by the

Appellants/Claimants seeking enhancement of compensation under the

impugned award dated 07.04.2016 passed by the Motor Accident Claims

Tribunal, District Judge at Karaikal in MCOP No.109 of 2014.

2. Heard Mr.Poovendra Perumal, learned counsel for the

Appellants/Claimants and Mr.Michael Visuvasam, learned counsel for the

Third respondent/Insurance Company. Notice to the respondents 1 and 2 is

dispensed with, in view of the fact that both of them were set exparte before

the Tribunal.

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3. The Appellants/claimants, unsatisfied with the quantum of

compensation awarded by the Tribunal have preferred this Appeal seeking

for enhancement. The details of the compensation awarded by the Tribunal

to the Appellants/Claimants are as follows :

                                          Heads             Award Amount
                                                                     (Rs.)
                                 Pecuniary loss                        2,43,000/-
                                 Loss     of love &                      30,000/-
                                 affection to appellants
                                 2 to 4
                                 Loss of consortium to                   10,000/-
                                 the 1st appellant
                                 Funeral expenses                        10,000/-
                                 Total                                 2,93,000/-

4. The Appellants / Claimants are the husband, two daughters and son

of the deceased Peramathal who died on 14.03.2014 as a result of an

accident caused by a vehicle insured with the 3rd respondent. In the claim

petition, the appellants/claimants have pleaded that at the time of accident,

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the deceased was selling fish to a wholesale company and was earning a

sum of Rs.30,000/- per month. The appellants/claimants have also pleaded

that the deceased was aged 59 years at the time of accident.

5. Before the Tribunal, the appellants/claimants have filed thirteen

documents which were marked as Exs.P1 to P13 and four witnesses were

examined on their side namely the first appellant/first claimant who is the

husband of the deceased as PW1, Mrs.Ganga, the co-passenger of the goods

vehicle who is also a fish vendor as PW2, Mr.Peramasamy, the whole sale

sub-agent for the sale of fish as PW3 and Mr.Ramachandran, the member of

the Village Panchayat to which the deceased belongs to, as PW4. On the

side of the third respondent, neither any document was filed nor any witness

examined before the Tribunal. PW3 and PW4 have supported the

contention of the appellants/claimants that the deceased was earning

Rs.30,000/- per month as a fish vendor. However, the Tribunal has fixed the

monthly income of the deceased at Rs.4,500/-. The accident happened on

14.03.2014. When the appellants/claimants have adduced oral evidence

through PW3 and PW4 to support their contentions and when no oral or

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documentary evidence has been produced by the respondents before the

Tribunal and in view of the fact that the accident happened in the year 2014,

fixation of the notional monthly income of the deceased at Rs.4,500/- is low,

in the considered view of this Court.

6. Taking into consideration the aforementioned factors, including the

deposition of PW3 and PW4, this Court is of the considered view that the

notional monthly income of the deceased at the time of accident will have to

be enhanced to Rs.10,000/- instead of Rs.4,500/- fixed by the Tribunal. The

Tribunal has erroneously deducted 50% towards personal expenses of the

deceased. Since the dependents are four in number, namely husband and

three children, the Tribunal ought to have deducted 1/4th towards personal

expenses but instead has erroneously deducted 50%. Hence, this Court

modifies the deduction as 1/4th instead of 50%, erroneously deducted by the

Tribunal. The deceased was aged 60 years at the time of accident as per

Post-mortem certificate which was marked as Ex.P2 before the Tribunal.

The Tribunal has rightly adopted multiplier of 9 which is confirmed by this

Court. However, the Tribunal has failed to award any compensation to the

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appellants/claimants towards loss of future prospects which they are legally

entitled to as per settled law. Since the deceased was aged 60 years at the

time of accident, in accordance with the decision of the Hon'ble Supreme in

the case of` National Insurance Company Limited vs. Pranay Shethi and

Others reported in 2017 (16) SCC 680, the appellants/claimants are entitled

to 10% towards loss of future prospects. Accordingly, the same is awarded

by this Court. Hence, the loss of pecuniary benefits awarded by the

Tribunal under the impugned award is enhanced to Rs.8,91,000/- from

Rs.2,43,000/-, as detailed hereunder -

Rs.10000 + 1000 (10% of 10000) x 12 x 3/4 x 9 = Rs.8,91,000/-

7. With regard to the compensation awarded by the Tribunal under

various other heads namely loss of love & affection, loss of consortium, and

funeral expenses are concerned, the same are not in accordance with

Pranay Shethi judgment referred to supra. In accordance with the said

judgment, the first appellant/claimant who is the husband of the deceased is

entitled to a sum of Rs.40,000/- and therefore, this Court is enhancing the

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compensation towards loss of consortium from Rs.10,000/- to Rs.40,000/-.

With regard to the loss of love & affection awarded by the Tribunal to

appellants 2 to 4 is concerned, the same is also on the lower side which will

have to be enhanced to Rs.1,20,000/- from Rs.30,000/- in view of the fact

that the appellants 2, 3 & 4 are the children of the deceased, each entitled for

Rs.40,000/-. Similarly, the Tribunal has awarded only compensation of

Rs.10,000/- towards funeral expenses which is low and the same has to be

increased to Rs.15,000/- in accordance with Pranay Shethi judgment

referred to supra. Accordingly, the compensation towards funeral expenses

is enhanced to Rs.15,000/- by this Court. The Tribunal has also erroneously

failed to award any compensation towards loss of estate to the

appellants/claimants which they are legally entitled to, in accordance with

Pranay Shethi judgment referred to supra. In accordance with the said

judgment, this Court awards a compensation of Rs.15,000/- to the

appellants/claimants towards loss of estate.

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8. For the foregoing reasons, the compensation awarded by the

Tribunal under the impugned award is enhanced from Rs.2,93,000/- to

Rs.10,81,000/- by this Court, as detailed hereunder -

                                     Heads                Amount awarded         Amount awarded
                                                           by the Tribunal        by this Court
                                                               (Rs.)                  (Rs.)
                          Pecuniary loss                         2,43,000/-             8,91,000/-
                          Loss of love & affection to              30,000/-             1,20,000/-
                          appellants 2 to 4
                          Loss of consortium to the 1st            10,000/-              40,000/-
                          appellant
                          Funeral expenses                         10,000/-              15,000/-
                          Loss of estate                                     -           15,000/-
                                                 Total           2,93,000/-           10,81,000/-



                      Conclusion:

9. In the result, this appeal shall stand partly allowed. The Third

Respondent / Insurance Company is directed to deposit the amount awarded

by this Court i.e. Rs.10,81,000/- together with interest at the rate of 7.5%

per annum from the date of claim till the date of deposit and costs, after

deducting the amount already deposited to the credit of MCOP.No.109 of

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2014 within a period of four weeks from the date of receipt of a copy of this

Judgment. On such deposit being made, the Tribunal is directed to transfer

the award amount to the bank account of the appellants/claimants through

RTGS within a period of one week thereafter. The requisite Court fee, if any

has to be paid by the Appellants/Claimants before receiving the copy of this

Judgment. No costs.