Madras High Court
R.Manikandan vs K.Govindarajan on 28 June, 2021
C.M.A.No.850 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2021
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A.No.850 of 2020
1.R.Manikandan
2.Kala .. Appellants
Vs.
1.K.Govindarajan
2.The Divisional Manager,
The New India Assurance Company Limited,
Do, 1 Bharathi Road,
Cuddalore – 607 001.
3.K.Mary
4.The Divisional Manager,
The New India Assurance Company Limited,
Do, 1 Bharathi Road,
Cuddalore – 607 001. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated 15.11.2019
made in M.C.O.P.No.571 of 2014, on the file of the Motor Accidents Claims
Tribunal, Special Sub Court (FAC), Cuddalore.
For Appellants : Ms.Ramya V.Rao
for Mr.A.N.Viswanatha Rao
For RR 2 & 4 : Ms.Saraswathi
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C.M.A.No.850 of 2020
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”.)
This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the Tribunal in the award dated 15.11.2019 made in
M.C.O.P.No.571 of 2014, on the file of the Motor Accidents Claims Tribunal,
Special Sub Court (FAC), Cuddalore.
2.The appellants are the claimants in M.C.O.P.No.571 of 2014, on the
file of the Motor Accidents Claims Tribunal, Special Sub Court (FAC),
Cuddalore. The claimants filed the above said claim petition, claiming a sum of
Rs.15,00,000/- as compensation for the death of their daughter viz., Nithya
Priya @ Vidhya Priya, who died in the accident that took place on 30.12.2013.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the Mini Bus belonging to 1st respondent and directed the 2nd
respondent to pay a sum of Rs.8,46,635/- as compensation to the appellants at
the first instance and recover the same from the 1st respondent and dismissed
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C.M.A.No.850 of 2020
the claim petition as against the respondents 3 & 4.
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 aged 19 years, was working as Tea Leaf
Plucker in Waterfall Private Limited, Tea Estate, Valparai and was earning a
sum of Rs.15,000/- per month. But, the Tribunal erroneously fixed a meagre
sum of Rs.6,000/- per month as notional income of the deceased and awarded
compensation. The Tribunal ought to have fixed a sum of Rs.15,000/- per
month as notional income of the deceased and awarded compensation for loss
of dependency. The Tribunal has not awarded any amount towards loss of love
and affection and prayed for enhancement of compensation.
6.Per contra, learned counsel appearing for the 2nd respondent contended
that the claimants have not produced any document to prove the avocation and
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C.M.A.No.850 of 2020
income of the deceased. In the absence of any material evidence with regard to
avocation and income, a sum of Rs.6,000/- per month fixed by the Tribunal as
notional income of the deceased is not meagre. The Tribunal has erroneously
awarded a sum of Rs.40,000/- towards loss of consortium to the claimants who
are the parents of the deceased for which they are not entitled to. In view of the
same, the appellants are not entitled to any amount towards loss of love and
affection. The Tribunal considering the entire materials on record, has awarded
a sum of Rs.8,46,635/- as compensation to the appellants and the same is not
meagre. 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 the
learned counsel appearing for the respondents 2 & 4 and perused the entire
materials on record.
8.From the materials available on record, it is seen that at the time of
accident the deceased was aged 19 years, was working as Tea Leaf Plucker in
Waterfall Private Limited, Tea Estate, Valparai and was earning a sum of
Rs.15,000/- per month. Except oral evidence, the claimants have not produced
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C.M.A.No.850 of 2020
any material evidence to prove the avocation and income of the deceased. In
the absence of any material evidence with regard to avocation and income of
the deceased, the Tribunal considering the year of accident and nature of work
done by the deceased, fixed a sum of Rs.6,000/- per month as notional income
of the deceased. The accident is of the year 2013 and the notional income fixed
by the Tribunal is meagre. Considering the year of accident, age and nature of
work done by the deceased, a sum of Rs.10,000/- per month is fixed as
notional income of the deceased. As per Ex.P9/Postmortem Certificate, the
deceased was aged 19 years at the time of accident. The Tribunal following the
judgments of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC
Supreme Court, [Sarla Verma & others Vs. Delhi Transport Corporation &
another] and 2017 (2) TNMAC 609 (SC), [National Insurance Company
Limited Vs. Pranay Sethi and others] rightly applied multiplier '18' and
granted 40% enhancement towards future prospects. But, while calculating the
compensation for loss of dependency, the Tribunal erroneously taken multiplier
'15' and awarded compensation for loss of dependency. Thus, by fixing a sum
of Rs.10,000/- per month as notional income and applying multiplier '18', the
compensation awarded by the Tribunal towards loss of dependency is modified
to Rs.15,12,000/- {Rs.14,000/- [Rs.10,000/- + Rs.4,000/- (40% of
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C.M.A.No.850 of 2020
Rs.10,000/-)] X 12 X 18 X ½}. The Tribunal has awarded a sum of
Rs.40,000/- towards loss of consortium to the appellants, who are the parents
of the deceased for which they are not entitled to. In view of the same, the
compensation awarded by the Tribunal towards loss of consortium is liable to
be set aside and it is hereby set aside. The Tribunal has not awarded any
amount towards loss of love and affection. The appellants, being the parents of
the deceased are entitled to a sum of Rs.40,000/- each towards loss of love and
affection. The amounts awarded by the Tribunal under other heads are just and
reasonable and hence, the same are hereby confirmed.
9.It is well settled that the Tribunal and the Courts have to award just
compensation. Though the claimant has claimed lesser compensation, the
Courts have power to grant just compensation more than the amount claimed
by the claimants. Thus, the compensation awarded by the Tribunal is
modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Loss of dependency 7,56,000/- 15,12,000/- Enhanced
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C.M.A.No.850 of 2020
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
2. Loss of consortium 40,000/- - Set aside
3. Funeral expenses 15,000/- 15,000/- Confirmed
4. Loss of estate 15,000/- 15,000/- Confirmed
5. Medical Bills 2,635/- 2,635/- Confirmed
6. Ambulance Bill 18,000/- 18,000/- Confirmed
7. Loss of love and - 80,000/- Granted
affection
Total Rs.8,46,635/- Rs.16,42,635/- Enhanced by
Rs.7,96,000/-
10.In the result, this Civil Miscellaneous Appeal is allowed and the
compensation awarded by the Tribunal at Rs.8,46,635/- is hereby enhanced to
Rs.16,42,635/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit. The 2nd respondent 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 to the credit of M.C.O.P.No.571 of
2014, on the file of the Motor Accidents Claims Tribunal, Special Sub Court
(FAC), Cuddalore, at the first instance and recover the same from the 1st
respondent. On such deposit, the appellants are permitted to withdraw their
respective share of the award amount now determined by this Court, as per the
ratio of apportionment fixed by the Tribunal, along with proportionate interest
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C.M.A.No.850 of 2020
and costs, less the amount if any, already withdrawn by making necessary
applications before the Tribunal. The respondents 2 and 4 are same party, to
which both the vehicles belonging to 1st respondent and 3rd respondent are
insured with. The negligence is fixed on the driver of the mini bus belonging to
1st respondent and hence, the 2nd respondent being the insurer of the mini bus
belonging to 1st respondent is liable to pay the compensation to the appellants.
Since, no negligence is fixed on the part of the driver of the 3rd respondent's
vehicle, to that part, the 4th respondent-Insurance Company is not liable to pay
any compensation. Hence, this appeal is dismissed as against the respondents 3
and 4. The appellants are directed to pay the necessary Court fee on the
enhanced amount of compensation now determined by this Court. No costs.
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krk
Index : Yes / No
Internet : Yes / No
S.KANNAMMAL, J.
krk
To
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C.M.A.No.850 of 2020
1.The Special Subordinate Judge (FAC),
Motor Accident Claims Tribunal,
Cuddalore.
2.The Section Officer,
VR Section,
High Court,
Madras.
C.M.A.No.850 of 2020
28.06.2021
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