Madras High Court
Isaivanan vs Chinnusamy on 9 November, 2021
C.M.A.No.450 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.450 of 2021
1.Isaivanan
2.Aashish Maheswar ... Appellants
Vs.
1.Chinnusamy
2.National Insurance Company Limited,
Divisional Office – I,
LRN Complex
Saradha College Road,
Salem – 636 007.
... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 against the Judgment and Award passed in MCOP No.978 of
2017 on the file of the Special District Judge, MCOP Tribunal, Salem dated
17.07.2020.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.450 of 2021
For Appellant : Mr.J.Prithvi for
Mr.S.Kaithamalai Kumaran
For Respondents : Mr.S.Arunkumar (for R2)
JUDGMENT
[Judgment of the Court was delivered by V.SIVAGNANAM, J.]
This Civil Miscellaneous Appeal has been filed against the Judgment and
Award dated 17.07.2020 passed by the Special District Judge, MCOP Tribunal,
Salem in MCOP No.978 of 2017.
2. By the impugned Judgment and Decree, the Tribunal has awarded a sum
of Rs.3,66,576/- as compensation together with interest at 7.5% per annum from
the date of filing of the claim petition till the date of deposit, to the appellants for
the death of one Janaki, who is the wife of the first appellant and the mother of
the second appellant.
3.This is the case of fatal accident. The case of the claimants is that on
31.10.2016 at 08.00 p.m, the deceased Janaki along with her father was travelling
https://www.mhc.tn.gov.in/judis
C.M.A.No.450 of 2021
in a two wheeler bearing Reg. No.TN-34-M-0502 on Tiruchengode to Erode main
road. When the two wheeler reached near Black and White Saloon at Koottapalli,
a bus bearing Reg.No.TN-52-D-5757, which was coming from the opposite
direction, had hit the two wheeler, in which, both the rider as well as the pillion
rider sustained grievous injuries. The rider namely, the father of the deceased,
Ramasamy died on the spot, wherein the pillion rider namely, Janaki died at the
hospital in spite of treatment. The husband and son of the deceased filed the
claim petition before the Tribunal. Though they claimed Rs.50,00,000/- as
compensation, the Tribunal has awarded Rs.3,66,576/- together with interest at
7.5% per annum, under the following heads:-
Heads Rs.
Loss of dependency (6000+10%- 4,93,680/-
1/3=4400x12x11=580800-87120(10%
Contributory negligence)
Loss of Estate 15,000/-
Funeral Expenses 15,000/-
5,23,680/-
Deduct:30% for negligence on the part of the driver 1,57,104/-
of the two wheeler bearing Registration No.TN 34
M 0502
Total 3,66,576/-
https://www.mhc.tn.gov.in/judis
C.M.A.No.450 of 2021
4.The learned counsel appearing for the appellants/claimants would submit
that the Tribunal ought not to have fixed 15% contributory negligence on the
deceased, who was only a pillion rider and she was not responsible for the
accident. He would further submit that the Tribunal arrived the conclusion of
contributory negligence on the part of the rider of the two wheeler as 30% only
based on assumption and presumption with no affirmative evidence on the side of
the respondents. The Tribunal erroneously fixed the monthly income of the
deceased as Rs.6000/- when the deceased was an income tax assessee. Hence, the
appellants seek for enhancement of compensation.
5.Per contra, the learned counsel appearing for the 2nd respondent Insurance
Company submitted that the impugned Judgment and Decree awarding the
aforesaid compensation is well reasoned and it requires no interference and
therefore, this Civil Miscellaneous Appeal is liable to be dismissed.
6.This Court carefully considered the submissions of the learned counsel
https://www.mhc.tn.gov.in/judis
C.M.A.No.450 of 2021
for the appellants/claimants and the learned counsel appearing for the second
respondent/Insurance Company and perused the materials available on record.
7.A perusal of the records would show that the deceased was running a
business namely, M/s Shri Chakara Security Agency and Social Service Agency
and she was an income tax assessee and her gross total income for the financial
year 2016-2017 was Rs.4,00,897/-; for the financial year 2015-2016 was
Rs.3,29,313/- and for the financial year 2014-2015 was Rs.2,03,911/-. The
Tribunal, considering the fact that the alleged business is running till date, has
fixed a notional monthly income of the deceased as Rs.6000/-, which is very
meagre. Therefore, this Court fixes the monthly notional income of the deceased
as Rs.10,000/- and by adding 10% towards future prospects, the notional income
works out at Rs.11,000/-. By deducting Rs.3,500/- towards personal expenses
and by applying multiplier '11', this Court here awards only Rs.9,90,000/- (7500 x
12 x 11-) towards loss of dependency. In addition, as per the decision of the
Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd., vs.
Nanu Ram and others reported in 2018(1) TN MAC 452 (SC), the claimants are
https://www.mhc.tn.gov.in/judis
C.M.A.No.450 of 2021
entitled to Rs.40,000/- each towards consortium, which comes to Rs.80,000/-.
Rs.15,000/- awarded for loss of estate and Rs.15,000/- awarded for funeral
expenses are confirmed.
8.It is seen from the records that initially the Tribunal has deducted 15% of
the amount awarded under the head of loss of dependency for contributory
negligence. Thereafter, the Tribunal has deducted 30% of the award amount for
negligence of the rider. Since the deceased was pillion order, the deduction of
30% from the award amount, is set aside. The rate of interest fixed by the
Tribunal is confirmed. Hence, the compensation awarded by the Tribunal to the
appellants is re-quantified as follows:-
Heads Rs.
Loss of dependency 10000+10%=11000- 9,90,000/-
3500=7500x12x11
Loss of consortium (40000 x 2) 80,000/-
Funeral expenses 15,000/-
Loss of Estate 15,000/-
11,00,000/-
15% deduction for the negligence 1,65,000/-
Total 9,35,000/-
https://www.mhc.tn.gov.in/judis
C.M.A.No.450 of 2021
9.In such view of the matter, this Civil Miscellaneous Appeal is partly
allowed. The second respondent/Insurance Company is directed to deposit the
modified award amount with accrued interest and costs, less the amount already
deposited, if any, within a period of eight weeks from the date of receipt of a copy
of this order. On such deposit, the claimants are permitted to withdraw the award
amount, equally, less the amount already withdrawn, if any, together with
proportionate interest and costs. No costs.
[M.K.K.S.,J.] [V.S.G.,J.]
09.11.2021
Intex : Yes/No
Internet : Yes/No
skn
To
1.The Special District Judge, MCOP Tribunal, Salem.
2.V.R.Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.450 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
skn
JUDGMENT MADE IN
C.M.A.No.450 of 2021
09.11.2021
https://www.mhc.tn.gov.in/judis
