Madras High Court

Yasodha vs M/S.Subiksha Travels on 29 July, 2021

                                                                 CMA Nos.1151 of 2016 and 1454 of 2016

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 29.07.2021

                                                      CORAM:

                                   THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                                        CMA Nos.1151 of 2016 and 1454 of 2016


                     1. Yasodha
                     2. Veerabathiran                …     Appellants in
                                                           CMA No.1151 of 2016

                     1. Kumari
                     2. Palani                       …     Appellants in
                                                           CMA No.1454 of 2016

                                                     versus

                     1. M/s.Subiksha Travels,
                     No.10, Pillayar Koil Street,
                     Pudupedu Village,
                     Nandambakkam,
                     Chennai – 600 069.
                     (R1-Already set exparte in Lower Court)
                     (R2-Notice may be dispense with)

                     2. Bajaj Allianz Gen. Insurance Co. Ltd.,
                     No.25/26, Prince Towers,
                     4th Floor,
                     College Road,
                     Nungambakkam,
                     Chennai – 600 006.                   …      Respondents in

both appeals

https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

Prayer in CMA No.1151 of 2016 : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act to set aside the order dated 04.02.2016 in MCOP No.864 of 2012 passed by the Motor Accident Claims Tribunal, III Additional District Court, Thiruvallur at Poonamallee.

Prayer in CMA No.1454 of 2016 : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act to set aside the decree and order dated 04.02.2016 in MCOP No.863 of 2012 passed by the Motor Accident Claims Tribunal, III Additional District Court, Thiruvallur at Poonamallee.

For Appellants in both appeals : Ms.Y.Jayanthi Baskar for Mr.J.Mahalingam

For Respondents in both appeals : Mr.T.K.Premkumar for R2 R1 - Exparte

COMMON JUDGMENT

(Heard Video Conference)

These appeals have been filed by the claimants seeking

enhancement of compensation under the impugned award dated

04.02.2016 passed by the Motor Accident Claims Tribunal, Additional

District Judge- III, Poonamallee in MCOP Nos.863 and 864 of 2012.

https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

2. Both these appeals pertain to the very same accident, which

happened on 06.08.2012 caused by a van owned by the 1st respondent

and insured with the 2nd respondent, which resulted in the death of

P.Hariraj and Jagannathan. Since both these appeals arise out of the same

accident and arise out of the same impugned common award, these

appeals are disposed of by a common judgment.

3. The parents of the respective deceased have filed separate

claims in MCOP Nos.863 and 864 of 2012 seeking for compensation.

The Tribunal under the impugned award directed the second respondent /

Insurance Company to pay the following compensation to the respective

claimants as detailed hereunder :-

MCOP No.863 of 2012 corresponds to CMA No.1454 of 2016

Heads Amount awarded by the Tribunal (Rs.) Loss of pecuniary benefits 9,60,000 Rs.5,000 x 12 x 16 Loss of love and affection to 1st 1,00,000 and 2nd petitioners Rs.50,000/- each Funeral expenses 25,000 Total 10,85,000

https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

MCOP No.864 of 2012 corresponds to CMA No.1151 of 2016

Heads Amount awarded by the Tribunal (Rs.) Loss of pecuniary benefits 19,20,000 Rs.10,000 x 12 x 16 Loss of love and affection to the 1,00,000 1st and 2nd petitioners Rs.50,000/- each Funeral expenses 25,000 Total 20,45,000

4. In both the claims, the deceased were students. P. Hariraj was

the deceased in the claim filed in MCOP No.863 of 2012 and he was

aged 21years and Jaganathan was the deceased in the claim filed in

MCOP No.864 of 2012 and he was aged 20 years at the time of the

accident. Both the deceased were final year B.Com students at D.G.

Vaishnav College, Chennai. P. Hariraj, the deceased was also a student

of ICWA at the Institute of Chartered Accountants. Jagannathan was

also a student of Chartered Accountant (Foundation course).

5. Heard Ms. Y.Jayanthi Baskar, learned counsel for the appellants

/ claimants and Mr.T.K.Premkumar, learned counsel for the second https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

respondent / Insurance Company. R1 remained ex-parte before the

Tribunal, hence notice to him is dispensed with.

6. This Court has perused and examined the impugned award as

well the materials and evidence available on record before the Tribunal.

7. Before the Tribunal, the claimants have filed 57 documents

which were marked as Exs.P1 to P57 and exhibits included several

meritorious achievements of the respective deceased in academics, sports

and other extra curricular activities.

8. The Tribunal has fixed the notional monthly income of the

deceased P.Hariraj in MCOP No.863 of 2012 as Rs.10,000/-. The

Tribunal has fixed the notional monthly income of the deceased

Jaganathan in MCOP No.864 of 2012 at Rs.20,000/-. The accident

happened on 06.08.2012. Both the deceased were final year students

studying the same course in the same college and admittedly one of them

by name Jagananathan was studying C.A. - Foundation course at the

Institute of Chartered Accountants and the other by name P. Hariraj was

studying ICWA at the Institute of Cost and Works Accountants, at the

time of the accident. In both the cases, the respective appellants /

claimants have filed documents before the Tribunal to establish their https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

claim that the respective deceased had excelled in academics as well as

in sports and other extra curricular activities. However, the Tribunal has

fixed the notional monthly income for P.Hariraj, who is the deceased in

MCOP No.863 of 2012 at Rs.10,000/- and for Jaganathan, the deceased

in MCOP No.864 of 2012 at Rs.20,000/-. The difference between the

notional monthly income fixed for Hariraj and Jaganathan is vast and this

Court is of the considered view that considering the fact that both the

deceased were B.Com final year students studying in the same college

and was also preparing for similar type of course as one was studying for

ICWA and the other was studying C.A. - Foundation course, the Tribunal

ought to have fixed the notional monthly income for both of them on

uniform basis. As seen from the documents filed as Exhibits before the

Tribunal, it is not the case of the respective claimants that the respective

deceased had represented the District, State or National level in any

sport and no certificate has also been produced that they had got District,

State or National level recognition for their excellence either in

academics, sports or extra curricular activities. All the documents viz.,

the meritorious certificates pertain to certificates obtained while the

deceased were studying in the 10th and 12th standard and nothing pertains

to their proficiency during their college study. The accident happened in https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

the year 2012. Though the students as seen from the documents filed as

Exhibits may have excelled in academics as well as in sports and other

extra curricular activities, they cannot be equated with persons, who

excel in academics, sports and other extra curricular activities in the

District, State or National level. Therefore, this Court is of the

considered view that the fixation of the notional monthly income of the

deceased by the Tribunal for Jaganathan, who is the deceased in MCOP

No.864 of 2012 at Rs.20,000/- is on the higher side. After giving due

consideration to the documents filed by the claimants before the

Tribunal, which were marked as Exhibits, this Court is of the considered

view that the notional monthly income of the deceased Jagannathan will

have to be reduced to Rs.15,000/- instead of Rs.20,000/- fixed by the

Tribunal which is on the higher side. As observed earlier there must be

uniformity in assessment when both the deceased are students of similar

age and were students of the same college and were also doing the same

type of courses and both of them having filed similar certificates of

proficiency before the Tribunal. Therefore, the notional monthly income

of the deceased P.Hariraj, who is the deceased in MCOP No.863 of 2012

has to be fixed at Rs.15,000/- as is being fixed for the other deceased also

by this Court.

https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

9. Therefore, the notional monthly income of the deceased P.

Hariraj in MCOP No.863 of 2012 has to enhanced to Rs.15,000/- from

Rs.10,000/- fixed by the Tribunal as it has to be uniform with that of

Jagananthan, the other deceased whose notional monthly income is fixed

by this Court also at Rs.15,000/-

10. The Tribunal has not awarded any compensation towards loss

of future prospects to the respective claimants which they are legally

entitled to as per the decision of the Hon'ble Supreme Court in the case

of National Insurance Co. Ltd. vs. Pranay Sethi reported in 2017 16

SCC 680. Since, the respective deceased were aged 21 years and 20 years

respectively and were students, the respective claimants are entitled to

40% towards loss of future prospects.

11. The Tribunal under the impugned award has erroneously

adopted 16 multiplier for the purpose of assessing the loss of

dependency in respect of both the claims. In MCOP No.863 of 2012, the

deceased P.Hariraj was aged 21 years and in MCOP No.864 of 2012, the https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

deceased Jaganathan was aged 20 years. The correct multiplier to be

adopted for both of them is 18 and not 16 as erroneously fixed by the

Tribunal. Accordingly, this Courts adopts 18 multiplier.

12. The Tribunal has rightly deducted 50% towards the personal

expenses of the respective deceased under the impugned award as both of

them were bachelors and the same is confirmed by this Court.

13. In view of the re-assessment of the monthly notional monthly

income of the respective deceased by this Court, the loss of dependency

for the each of the deceased is calculated hereunder :

Rs.15,000/- + 40% = Rs.21,000/- Less 50% x 12 x 18

= Rs.22,68,000/-

14. The Tribunal has awarded a compensation of Rs.1,00,000/-

towards loss of love and affection calculated at Rs.50,000/- each for the

parents. In a recent decision of the Hon'ble Supreme Court in the case of

New India Assurance Co. Ltd., vs. Somwati and others reported in

2020 (9) SCC 644 held that the compensation for the parents of the

deceased can be awarded only under the head “loss of Filal consortium”. https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

15. In accordance with Pranay Sethi's case referred to supra, the

appellants / claimants, who are the parents of the deceased, are each

entitled to Rs.40,000/- towards loss of consortium. Since the Tribunal

has awarded an excess compensation of Rs.1,00,000/- towards loss of

love and affection, this Court reduces the same but grants the same under

the head loss of Fillal consortium at Rs.80,000/- instead of

Rs.1,00,000/-. The loss of Fillal consortium at Rs.80,000/- is applicable

to the respective claimants in MCOP Nos.863 and 864 of 2012 .

16. The Tribunal has awarded a compensation of Rs.25,000/-

towards funeral expenses to the respective claimants, which has to be

necessarily reduced to Rs.15,000/- in accordance with Pranay Sethi's

judgment referred to supra.

17. The Tribunal has erroneously failed to award any

compensation towards loss of estate, which the respective claimants are

legally entitled to as per Pranay Sethi's judgment referred to supra. In

accordance with the said judgment, this Court fixes the compensation to

the respective claimants under the head loss of estate at Rs.15,000/-. https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

18. The Tribunal has granted pay and recovery rights to the

appellant / Insurance company in view of the fact that the driver of the

insured vehicle was under the influence of alcohol. The said finding has

attained finality as no appeal has also been filed by the insured aggrieved

by the said finding. Hence, the pay and recovery rights granted to the

appellant / Insurance Company by the Tribunal is confirmed by this

Court.

19. For the foregoing reasons, the compensation award to the

claimants to the respective claimants is enhanced in the following

manner :

MCOP No.863 of 2012 corresponds to CMA No.1454 of 2016

Heads Amount awarded Amount awarded by the Tribunal by this Court (Rs.) (Rs.) Loss of dependency 9,60,000 22,68,000 * Rs.5,000 x 12 x 16 * # # Rs.15,000/- + 40% = Rs.21,000/- Less 50% x 12 x 18 Loss of love and affection to 1,00,000 80,000 1st and 2nd petitioners ** ## **Rs.50,000/- each ## Rs.40,000/- each Funeral expenses 25,000 15,000

https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

Heads Amount awarded Amount awarded by the Tribunal by this Court (Rs.) (Rs.) Loss of estate - 15,000 Total 10,85,000 23,78,000 MCOP No.864 of 2012 corresponds to CMA No.1151 of 2016

Heads Amount awarded Amount awarded by the Tribunal by this Court (Rs.) (Rs.) Loss of pecuniary benefits 19,20,000 22,68,000 * Rs.10,000 x 12 x 16 * # # Rs.15,000/- + 40% = Rs.21,000/- Less 50% x 12 x 18

Loss of love and affection to 1,00,000 80,000 the 1st and 2nd petitioners ** ## **Rs.50,000/- each ## Rs.40,000/- each Funeral expenses 25,000 15,000 Loss of estate - 15,000 Total 20,45,000 23,78,000

20. In the result, the appeal filed by the appellants / claimants, in

CMA No.1151 of 2016 stands partly allowed by enhancing the

compensation from Rs.10,85,000/- to Rs.23,78,000/- as well as the

appeal filed by the appellants / claimants in CMA No.1454 of 2016

stands partly allowed by enhancing the compensation from

Rs.20,45,000/- to Rs.23,78,000/-, as indicated above. No costs.

21. The second respondent / Insurance Company in both appeals https://www.mhc.tn.gov.in/judis/

CMA Nos.1151 of 2016 and 1454 of 2016

is directed to deposit the entire award amount as assessed by this Court

together with interest at 7.5% p.a. from the date of claim petition till the

date of realization, less the amount, if any, already deposited to the credit

of M.C.O.P. Nos.863 and 864 of 2012 respectively on the file of the III