Madras High Court

K.Venkatesan vs Saroja Udatha on 25 June, 2021

                                                      C.M.A.No.1939 of 2020
         IN THE HIGH COURT OF JUDICATURE AT MADRAS

                           DATED: 25.06.2021

                                CORAM:

          THE HONOURABLE MRS.JUSTICE S.KANAMMAL

                         C.M.A.No.1939 of 2020

P.Kuppusamy (Died)

1.K.Venkatesan

2.K.Thangaraju

3.K.Selvaraju

4.K.Devarajan                                          .. Appellants
(Cause title accepted vide court
order dated 10.12.2020 made in
C.M.P.No.13376/2020
C.M.A.Sr.No.54434/2019 (VBDJ)
                                   Vs.

1.Saroja Udatha

2.M/s.Reliance General Insurance Company Limited,
 Sri Lakshmi Complex,
 1st Floor, Bharathi Street, Omalur Main Road,
 Swarnapuri, Salem - 636 004.                  .. Respondents

(R1 remained exparte before the
Lower Court. Hence service of notice
may be dispensed with)

Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

1/9
                                                        C.M.A.No.1939 of 2020
Vehicles Act, 1988, against the judgment and decree dated 27.04.2017 made
in M.C.O.P.No.211 of 2016 on the file of the Motor Accident Claims Tribunal,
learned Special District Court, Salem.


                   For Appellants        : Mr.P.Jagadeesan

                   For R2                : Ms.C.Bhuvanasundari


                              JUDGMENT

The Civil Miscellaneous Appeal is filed by the appellants seeking

enhancement of compensation granted by the Tribunal in the award dated

27.04.2017 made in M.C.O.P.No.211 of 2016 on the file of the Motor

Accident Claims Tribunal, learned Special District Court, Salem.

2.The appellants are claimants in M.C.O.P.No.211 of 2016 on the file of

the Motor Accident Claims Tribunal, learned Special District Court, Salem.

The appellants are the husband and sons of the deceased. Initially, one

Kuppusamy along with appellants 2 to 5 filed the said claim petition,

claiming a sum of Rs.15,00,000/- as compensation for the death of Saroja,

who died in the accident that took place on 27.12.2015. Pending claim

petition, the said Kuppusamy died.

C.M.A.No.1939 of 2020

3.The Tribunal, considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

st nd

the driver of the lorry belonging to the 1 respondent and directed the 2

respondent/Insurance Company to pay a sum of Rs.3,89,000/- as

compensation to the appellants.

4.Not being satisfied with the amount 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 the

deceased was running a power loom weaving and also doing milk vending

business and was earning a sum of Rs.25,000/- per month. The Tribunal

erroneously fixed meager sum of Rs.4,500/- per month as notional income of

the deceased. The deceased was aged 55 years at the time of the accident. The

Tribunal has not awarded any enhancement towards future prospects. The

Tribunal has not awarded any amount towards loss of estate and prayed for

enhancement of compensation.

C.M.A.No.1939 of 2020

6.Per contra, the learned counsel appearing for the 2nd

respondent/Insurance Company contended that the accident has occurred due

to negligence on the part of the rider of the two wheeler. The rider of the two

wheeler was not possessed valid driving license at the time of accident. The

appellants have not filed any documents to prove the avocation, age and

income of the deceased. The amounts awarded by the Tribunal under different

heads are excessive. The appellants have not made out any case for

enhancement of compensation and prayed for dismissal of the appeal.

7.Heard the learned counsel appearing for the appellants as well as

learned counsel appearing for the 2nd respondent/Insurance Company and

perused all the materials available on record.

8.From the materials available on record, it is seen that the appellants

have contended that the deceased was running a power loom weaving and

doing milk vending business and was earning a sum of Rs.25,000/- per month.

The appellants have not filed any documents to prove their contention. In the

absence of any material evidence, the Tribunal fixed a sum of Rs.4,500/- per

month as notional income of the deceased. The accident is of the year 2015.

C.M.A.No.1939 of 2020 The notional income fixed by the Tribunal is meager. A reasonable sum of

Rs.7,000/- per month is fixed as notional income of the deceased. The

Tribunal fixed the age of the deceased as 55 years at the time of the accident.

The Tribunal has not granted any compensation towards future prospects. As

per judgment of the Hon'ble Apex Court reported in National Insurance

Company v. Pranay Sethi reported in 2017(2)TNMAC 609 (SC), the

appellants are entitled to 10% towards future prospects. Considering the age

of the deceased, the Tribunal rightly applied multiplier '9'. There are four

dependents depending on the deceased, the Tribunal erroneously deducted

rd th

1/3 instead of deducting 1/4 towards personal expenses of the deceased.

Thus the amount awarded by the Tribunal towards loss of income is modified

to Rs.6,23,700/- (Rs.7,000/- +700/- (10% X Rs.7,000) x 12 x 9 x 3/4). The

amount awarded by the Tribunal towards loss of consortium is meager and

hence, the same is hereby enhanced to Rs.40,000/- to the 1 appellant towards

loss of consortium. The amount of Rs.40,000/- awarded by the Tribunal

towards loss of love and affection to the appellants 2 to 5 is to be modified.

Since the appellants 2 to 4 are married, a reasonable amount of Rs.10,000/-

each is awarded towards loss of love and affection. In respect of the fifth

C.M.A.No.1939 of 2020 appellant since he is a bachelor an amount of Rs.40,000/- is awarded towards

loss of love and affection. The Tribunal has not awarded any amounts towards

funeral expenses and loss of estate. A sum of Rs.15,000/- each is granted

towards funeral expenses and loss of estate. Thus, the compensation awarded

by the Tribunal is modified as follows:

 S.No     Description       Amount               Amount            Award
                           awarded by         awarded by this   confirmed or
                            Tribunal              Court         enhanced or
                              (Rs)                 (Rs)           granted
1.      Loss of income          3,24,000             6,23,700 Enhanced

2.      Loss of                   25,000               40,000 Enhanced
        consortium to
             st
        the 1 appellant
3.      Loss of love              40,000               30,000 Reduced
        and affection to
        the appellants 2
        to 4 each
        Rs.10,000/-
4.      Loss of love                      -            40,000 Granted
        and affection to
        the 5th
        appellant
5.      Funeral                           -            15,000 Granted
        expenses
6.      Loss of estate                    -            15,000 Granted
        Total              Rs.3,89,000/-        Rs.7,63,700/- Enhanced by
                                                              Rs.3,74,700/-

                                                          C.M.A.No.1939 of 2020

9.In the result, this Civil Miscellaneous Appeal is partly allowed and the

compensation awarded by the Tribunal at Rs.3,89,000/- is hereby enhanced to

Rs.7,63,700/- together with interest at the rate of 7.5% per annum from the

date of petition till the date of deposit. The appellants are directed to pay

necessary Court fee, if any, on the enhanced compensation. The 2

respondent/Insurance Company is directed to deposit the enhanced 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 on the basis

of apportionment fixed by the Tribunal, along with proportionate interest and

costs, less the amount if any, already withdrawn by filing necessary