Madras High Court

Saroja vs M.Sathish Kumar on 10 June, 2022

                                                                C.M.A. Nos.2122 & 2433 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 10.06.2022

                                                       CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI
                                                   and
                                   THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                          C.M.A.Nos.2122 & 2433 of 2021
                                            and C.M.P.No.13839 of 2021

                  C.M.A.No.2122 of 2021

                  1.Saroja
                  2.Gandhi
                  3.Marimuthu
                  4.Deepa
                  5.Shopa
                  6.Meenatchi                                                .. Appellants
                                                         Vs.

                  1.M.Sathish Kumar
                  (R1 remained exparte before the Tribunal.
                  Hence notice is dispensed with.)

                  2.United India Insurance Co. Ltd.,
                    No.134, Greams Road,
                    IV Floor, Anna Salai,
                    Chennai 600 006.                                        .. Respondents

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.2122 & 2433 of 2021

Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 20.12.2019, made in M.C.O.P. No.1766 of 2017, on the file of the Special Sub Court-II, (Motor Accident Claims Tribunal) Small Causes Court, Chennai.

                                     For Appellants    : Mr.F.Terry Chella Raja
                                                         for Ms.M.Malar

                                     For R2            : Mr.S.Arun kumar

                  C.M.A.No.2433 of 2021

                  United India Insurance Co. Ltd.,
                  No.134, Greams Road,
                  IV Floor, Anna Salai,
                  Chennai 600 006.                                                .. Appellant
                                                       Vs.
                  1.Saroja
                  2.Gandhi
                  3.Marimuthu
                  4.Deepa
                  5.Shopa
                  6.Meenatchi
                  7.M.Sathishkumar                                                .. Respondents


                  _____




https://www.mhc.tn.gov.in/judis
                                                                       C.M.A. Nos.2122 & 2433 of 2021

                                            For Appellant    : Mr.S.Arun kumar

                                            For RR1 to 6     : Mr.A.G.F.Terry Chella Raja
                                                               for Ms.M.Malar

                                              COMMON JUDGMENT

[Judgment of the Court was delivered by V.M.VELUMANI,J.]

C.M.A.No.2122 of 2021 has been filed by the appellants-claimants

seeking enhancement of compensation granted by the Tribunal in the award

dated 20.12.2019, made in M.C.O.P. No.1766 of 2017, on the file of the

Special Sub Court-II, (Motor Accident Claims Tribunal) Small Causes Court,

Chennai.

C.M.A.No.2433 of 2021 has been filed by the appellant-Insurance

Company challenging the quantum of compensation granted by the Tribunal

in the award dated 20.12.2019, made in M.C.O.P. No.1766 of 2017, on the

file of the Special Sub Court-II, (Motor Accident Claims Tribunal) Small

Causes Court, Chennai.

2.Both the appeals arise out of same accident and same award and

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hence, disposed of by this common judgment.

3.The parties are referred to as per their ranks in the claim petition, for

the sake of convenience.

4.The claimants filed M.C.O.P. No.1766 of 2017, on the file of the

Special Sub Court-II, (Motor Accident Claims Tribunal) Small Causes Court,

Chennai, claiming a sum of Rs.60,00,000/- as compensation for the death of

one Sivalingam who died in the accident that took place on 01.01.2017.

5.According to the claimants, on the date of accident, at about

12.55 a.m., when the deceased Sivalingam was travelling in a Motorcycle

bearing Registration No.TN-09-CF-2497 as a pillion rider, from South to

North direction at Anna Salai and Pallavan Salai Junction, the 1 st respondent,

who is the rider-cum-owner of the Motorcycle drove the vehicle in a rash and

negligent manner in high speed, as a result of which, the vehicle skidded and

accident occurred. Both the rider as well as the pillion rider were thrown out

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of the vehicle. In the accident, the said Sivalingam sustained fatal injuries. The

accident occurred only due to rash and negligent riding of Motorcycle by the

1st respondent and hence, the claimants filed the claim petition for the death of

Sivalingam, against the respondents who are the owner and insurer of the said

Motorcycle.

6.The 2nd respondent-Insurance Company filed counter statement and

denied all the averments made by the claimants. According to the 2nd

respondent, the deceased Sivalingam, after celebrating new year, while

travelling in the Motorcycle under the influence of alcohol, the vehicle skidded

and the deceased fell down from the vehicle and sustained fatal injuries. The

complaint was given belatedly after the demise of the deceased with an

ulterior motive to make an untenable claim. Hence, this respondent is not

liable to pay any compensation to the claimants. The claimants have to prove

that the rider of the Motorcycle possessed valid driving license to ply the

vehicle at the time of accident. In any event, the claimants also have to prove

the age, avocation and income of the deceased to claim compensation and

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prayed for dismissal of the claim petition.

7.The Tribunal considering the pleadings, oral and documentary

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

the 1st respondent, rider-cum-owner of the Motorcycle and directed the 2nd

respondent-Insurance Company to pay a sum of Rs.20,75,600/- as

compensation to the claimants 1 and 2. The Tribunal dismissed the claim

petition as against the claimants 3 to 6.

8.Not being satisfied with the amounts awarded by the Tribunal, the

claimants have filed C.M.A.No.2122 of 2021, seeking enhancement of

compensation.

9.Questioning the quantum of compensation granted by the Tribunal in

the award dated 20.12.2019, made in M.C.O.P. No.1766 of 2017, the 2nd

respondent-Insurance Company has come out with C.M.A.No.2433 of 2021.

10.The learned counsel appearing for the claimants submitted that at

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the time of accident, the deceased Sivalingam was aged 21 years, working as

a Sales Assistant in Meat and Fish Shop and was earning a sum of Rs25,000/-

per month. To substantiate the avocation and income, the claimants examined

the employer of the deceased as P.W.2. The Tribunal, without considering the

evidence of P.W.2, fixed only a meagre sum of Rs.13,000/- per month as

notional income of the deceased. The Tribunal erred in deducting 50%

towards personal expenses of the deceased, while there are 4 sisters of the

deceased, out of which only one was married and the remaining 3 sisters were

dependent on the deceased, as their father was an aged person. The Tribunal

ought to have awarded compensation under the heads of damages, loss of

estate, loss of expectation of life, transport expenses, pain and sufferings,

medical expenses and mental agony, etc. The total compensation awarded by

the Tribunal is meagre and prayed for enhancement of the same.

11.The learned counsel appearing for the 2 nd respondent-Insurance

Company contended that the claimants did not file any document to prove the

avocation and income of the deceased. In the absence of any proof with regard

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to avocation and income of the deceased, the Tribunal rejected the evidence of

P.W.2 and erroneously fixed a sum of Rs.13,000/- per month as notional

income of the deceased. The Tribunal failed to consider the fact that had the

deceased been alive, he would have got married and contributed his 70% of

earning to his family. Without considering the said fact, the Tribunal

erroneously granted 40% enhancement towards future prospects. The total

compensation awarded by the Tribunal is excessive and prayed for reducing

the compensation granted and dismissal of C.M.A.No.2122 of 2021, filed by

the claimants.

12.Heard the learned counsel appearing for the claimants as well as the

2nd respondent-Insurance Company and perused the materials available on

record.

13.It is the case of the claimants that at the time of accident, the

deceased was aged 21 years, working as a Sales Assistant in Meat and Fish

Shop and was earning a sum of Rs.25,000/- per month. They examined P.W.2,

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owner of the Fish Stall to prove the same. The Tribunal did not accept the

evidence of P.W.2 on the ground that P.W.2 has not filed documents with

regard to Bank Statement and Voucher. Following the judgment of the

Division Bench of this Court reported in 2019 (1) TN MAC 54 (DB) [Andal

and others Vs. Avinav Kannan and other], the Tribunal arrived at a sum of

Rs.13,000/- per month as notional income of the deceased. The accident is of

the year 2017. Considering the year of accident and nature of work done by

the deceased, the notional income fixed by the Tribunal is meagre and the

same is enhanced to Rs.13,500/- per month. The Tribunal has granted 40%

enhancement towards future prospects. From Ex.P3 – Post mortem report, it

is seen that the deceased Sivalingam was aged 20 years at the time of

accident. The Tribunal considering the judgment of the Hon'ble Apex Court

reported in 2009 (2) TNMAC 1 SC Supreme Court [Sarla Verma & others

vs. Delhi Transport Corporation & another], has applied the correct

multiplier '18'. The contention of the learned counsel appearing for the

claimants that the deceased had 4 sisters and deduction of 50% is erroneous

cannot be accepted. The deceased was a bachelor at the time of accident.

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Hence, the Tribunal following the judgment of the Hon'ble Apex Court, has

rightly deducted 50% towards personal expenses of the deceased. By fixing

the monthly income at Rs.13,500/-, granting 40% enhancement towards

future prospects, applying multiplier '18' and deducting 50% towards personal

expenses of the deceased, the amount granted by the Tribunal towards loss of

dependency is modified to Rs.20,41,200/- {[Rs.13,500/- + Rs.5,400/- (40% of

Rs.13,500/-)] x 12 x 18 x 50%}. The amounts awarded by the Tribunal under

other heads are just and reasonable and hence, the same are hereby

confirmed. Thus, the compensation awarded by the Tribunal is modified as

follows:

S. No Description Amount awarded Amount Award by Tribunal awarded by confirmed or (Rs) this Court (Rs) enhanced or granted

1. Loss of dependency 19,65,600/- 20,41,200/- Enhanced

2. Loss of filial consortium 80,000/- 80,000/- Confirmed to claimants 1 and 2

3. Funeral expenses 15,000/- 15,000/- Confirmed

4. Loss of estate 15,000/- 15,000/- Confirmed

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Total 20,75,600/- 21,51,200/- Enhanced by Rs.75,600/-

14.In the result, C.M.A.No.2122 of 2021 is partly allowed and

C.M.A.No.2433 of 2021 is dismissed. The amounts awarded by the Tribunal

at Rs.20,75,600/- is enhanced to Rs.21,51,200/- together with interest at the

rate of 7.5% per annum from the date of petition till the date of deposit. The

2nd respondent-Insurance Company is directed to deposit the award amount,

now determined by this Court, along with interest and costs, 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.1766 of 2017. On such deposit, the claimants 1 and 2 are

permitted to withdraw their share of the award amount, now determined by

this Court, along with proportionate interest and costs, as per the ratio of

apportionment fixed by the Tribunal, after adjusting the amount, if any,

already withdrawn, by filing necessary applications before the Tribunal. Both