Madras High Court
Kalaiselvi vs Gopinath on 11 January, 2022
C.M.A.No.54 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.54 of 2021
1.Kalaiselvi
2.Minor Vairamuthu
3.Minor Subadharsini
4.Dhanalakshmi ... Appellants
Vs.
1.Gopinath
2.Manager,
MAGMA HDI General Insurance,
Company Limited, V Floor,
No.140/150, Luz Church Road,
Mylapore, Chennai.
... Respondents
PRAYER: Civil Miscellaneous Appeals are filed under Section 173 of Motor
Vehicles Act 1988 to enhance the award against the judgment and decree dated
09.08.2018 in MCOP No.730 of 2014 on the file of the Motor Accident Claims
Tribunal (Additional District Court), Namakkal.
1/9
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C.M.A.No.54 of 2021
For Appellant : Mr.A.Sathishkumar for
Mr.C.Thangaraju
For Respondents : Mr.S.Arunkumar for R2
No appearance for R1
JUDGMENT
[Judgment of the Court was delivered by V.SIVAGNANAM, J.]
Seeking enhancement of compensation, the claimants in MCOP No.730 of
2014 on the file of the Motor Accident Claims Tribunal (Additional District Court)
Namakkal, have preferred this appeal.
2.The facts of the case in nutshell:-
This is the case of fatal. On 03.06.2014, at 08.00 p.m, the deceased
Vijayakumar was riding a two-wheeler bearing Reg.No.28-AQ-4665 on Salem-
Karur National Highways along with one Santhanam as pillion rider. When the
said two-wheeler was nearing at Vallipuram Bridge, a TATA 207 van bearing
Reg.No.TN-28-AE-5301 driven by its driver in a rash and negligent manner,
dashed the deceased vehicle. In the accident, he sustained grievous head injuries
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C.M.A.No.54 of 2021
and died on the spot. The first claimant is the wife, claimants 2 and 3 are the son
and daughter and the 4th claimant is the mother of the deceased. The first
respondent is the owner and the second respondent is the insurer of the offending
van. Alleging that the accident had occurred only due to the rash and negligent
driving of the driver of the van, the claimants laid a claim petition before the
Tribunal claiming compensation of Rs.41,00,000/-.
3.The claim petition was resisted by the second respondent/Insurance
Company contending that the accident had occurred due to the negligence of the
rider of the two-wheeler and the Insurance Company is not liable to pay
compensation.
4.During the Trial, both parties have adduced oral and documentary
evidence. Upon consideration of evidence adduced by the parties, the Tribunal
came to the conclusion that the accident occurred only due to the negligence of the
driver of the Van and awarded compensation of Rs.12,98,500/- together with
interest at the rate of 7.5% per annum as follows:-
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C.M.A.No.54 of 2021
S.No Heads Amount (Rs.)
1 Loss of Income (6825 x 12 x 15) 12,28,500/-
2 Loss of Estate 15,000/-
3 For Funeral Expenses 15,000/-
4 Loss of Consortium to the 1st claimant 40,000/-
Total 12,98,500/-
Being dissatisfied with the award, the claimant is before this Court.
5.The learned counsel appearing for the appellants/claimants would contend
that since the amount awarded by the Tribunal is meager in all the heads, the
claimants are entitled for higher compensation. He would further contend that at
the time of accident, the deceased was 38 years and hale and healthy. He was the
only sole breadwinner of his family. He was working as a driver and earning
Rs.30,000/- per month. But the Tribunal without considering the age of the
deceased fixed the monthly income at Rs.6500/-, which is meager. Hence, the
appellants seek for enhancement of compensation.
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C.M.A.No.54 of 2021
6.Per contra, the learned counsel appearing for the 2nd respondent/Insurance
Company submitted that the impugned award granting the aforesaid
compensation is well reasoned and it requires no interference and therefore, this
Civil Miscellaneous Appeal is liable to be dismissed.
7.We have considered the rival submissions of the learned counsel
appearing on either side and perused the materials available on records.
8.In the case on hand, the accident had taken place in the year 2014. At
that time, the deceased was working as Driver. Since no document was produced
to prove the income, the Tribunal has fixed the monthly income of the deceased as
Rs.6500/-. We of the considered view that the monthly income fixed by the
Tribunal is meager. Therefore, this Court fixes the monthly income of the
deceased as Rs.12000/-. As per the decision of National Insurance Company
Ltd., vs. Pranay Sethi and others reported in 2017(2) TNMAC 609 (SC), the
claimants are entitled to 40% addition as future prospects. Hence, after adding
40% of the income as future prospects and after deducting ¼th towards personal
and living expenses and by applying proper multiplier '15', the loss of dependency
works out at Rs.22,68,000/- (12000+4800(40%) = 16800 x 12 x 16 x 3/4). As
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C.M.A.No.54 of 2021
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 entitled to Rs.40,000/- each towards consortium and
Filial consortium, which comes to Rs.1,60,000/-. Hence, the amount of
Rs.40,000/- awarded by the Tribunal under head of loss of consortium is
enhanced to Rs.1,60,000/-. The amount awarded under the head of loss of estate
and funeral expenses are confirmed. The rate of interest fixed by the Tribunal as
7.5% per annum is unaltered. Hence, the compensation awarded by the Tribunal
to the claimants is re-quantified as follows:-
S.No Heads Amount (Rs.)
1 Loss of dependency 22,68,000/-
(12000+4800(40%) = 16800 x 12 x 16 x 3/4).
2 Loss of Consortium 40000 x 4 1,60,000/-
3 Funeral Expense 15,000/-
4 Loss of Estate 15,000/-
Total 24,58,000/-
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
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C.M.A.No.54 of 2021
deposited, if any, within a period of eight weeks from the date of receipt of a copy
of this order. On such deposit, the first appellant/wife of the deceased is entitled
for a sum of Rs.10,58,000; the appellants 2 and 3/children of the deceased are
entitled for a sum of Rs.5,00,000/- each; the 4th appellant/mother of the deceased
is entitled to Rs.4,00,000/- together with proportionate interest and costs. The
major claimants are permitted to withdraw their share after filing a memo, along
with a copy of this order. Further, the Tribunal is directed to deposit the share of
the minor claimants in any one of the nationalised banks, as fixed deposit under
the Cumulative Deposit Scheme, till the minors attain the majority and the first
appellant/mother, who is the guardian of the minor claimants, is permitted to
withdraw interest once in six months directly from the Bank. No costs.
[M.K.K.S.,J.] [V.S.G.,J.]
11.01.2022
Intex : Yes/No
Internet : Yes/No
skn
To
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C.M.A.No.54 of 2021
1.The Motor Accident Claims Tribunal,
Additional District Judge, Namakkal.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
K.KALYANASUNDARAM, J.
https://www.mhc.tn.gov.in/judis
C.M.A.No.54 of 2021
and
V.SIVAGNANAM, J.
skn
JUDGMENT MADE IN
C.M.A.No.54 of 2021
11.01.2022
https://www.mhc.tn.gov.in/judis
