Madras High Court
Shamshath vs Rathinasamy on 2 March, 2022
C.M.A.No.3375 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2022
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.3375 of 2021
1. Shamshath
2. Minor Nishath
3. Kathum Bee
(Minor /2nd appellant is rep by 1st appellant
next friend, guardian mother) ... Appellants
Vs.
1. Rathinasamy
2. The United India Insurance Company Limited,
No.14/1-77 B, Salem Main Road,
Puduchampalli, Raman Nagar Post,
Mettur Dam – 636 403,
Salem District. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, challenging the judgment and decree dated 25.01.2017 in
MCOP No. 2119 of 2015 passed by the Motor Accident Claims Tribunal,
Additional District Court and Special Court, Salem.
For Appellants : Mr.S.P.Yuaraj
For Respondents : R1 – Notice served - No appearance
R2 – Mr.D.Bhaskaran
1/8
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C.M.A.No.3375 of 2021
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
The claimants in M.C.O.P.No.2119 of 2015 on the file of the Motor
Accident Claims Tribunal (Additional District Court and Special Court for
Essential Commodities Act), Salem, have come up with this appeal, seeking
enhancement of compensation.
2.The said Original Petition was filed claiming compensation of
Rs.75 Lakhs, for the death of one Soukath Ali S/o Abdul Sukur, in the
accident which had taken place on 09.07.2015. According to the averments
made in the claim petition, the deceased-Soukath Ali was travelling as a
passenger in the bus owned by the 1st respondent, bearing Registration No.TN
52 V 0599, from Salem - Mettur. The bus was stopped at Mettur bus stand, to
enable the passengers to get down. It is the case of the claimants that even
before the deceased could get down from the bus, the driver suddenly moved
the bus on the reverse direction, in which he fell down and sustained grievous
injuries. Though he was immediately brought to the Government Hospital,
Mettur and thereafter, he was shifted to Government Hospital, Salem, he
succumbed to the injuries on 12.07.2015.
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C.M.A.No.3375 of 2021
3.It is the further case of the claimants that the deceased was working as
a Pharmacist in the Government Hospital, Salem, and he was paid Rs.43,683/-
per month as salary. The claimants are wife, minor son and mother of the
deceased.
4.The Tribunal on appreciation of the evidence adduced by the parties
held that the accident had occurred due to the negligence of the driver of the
bus. The said finding is not questioned by the respondent.
5.The learned counsel appearing for the appellant, Mr.S.P.Yuvaraj
would urge that the evidence of P.W's.1, 3 and Ex.P.14 will prove that the
deceased was getting the salary of Rs.45,576/- per month, but the Tribunal has
taken the income only as Rs.15,000/- on the basis that one of the legal heirs
got appointment on compassionate ground. It is the submission of the learned
counsel that the entire salary received by the deceased would be the base for
awarding compensation under the head ‘loss of income’.
6.Per contra, the learned counsel appearing for the 2nd respondent
Mr.D.Baskar would submit that the appeal has no merit and it has to be
dismissed.
7.We have heard the rival submissions and perused the materials
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C.M.A.No.3375 of 2021
available on record.
8.In the case on hand, it is not in dispute that the deceased Soukath Ali
was working as a Pharmacist in the Government Hospital, Salem. The
employment and the salary of the deceased have been proved by P.W.3 and
Ex.P.14-Salary Certificate. Therefore, the income of the deceased has to be
taken as Rs.45,576/- and the reason given by the Tribunal for reducing the
salary cannot be countenanced. Hence the income of the deceased is fixed at
Rs.45,576/- per month. Adding 30% towards future prospectus and after
deducting Income Tax for the income of the deceased, the annual income
would be Rs.6,43,790/- [(Rs.45,576/- + 30% x 12) – Rs.67,196/-]. Since the
deceased died at the age of 46, the appropriate multiplier would be '13' and
after deducting 1/3rd towards personal expenses of the deceased, the 'loss of
dependency' is arrived at Rs.55,79,513/-. Rs.20,000/- is awarded for 'loss of
consortium', but as per the decision of the Hon'ble Apex Court in the case of
Magma General Insurance Company Vs. Nanuram @ Chuhru Ram and
Others, the claimants are entitled for Rs.40,000/- each under the head of
'Consortium and filial consortium'. Since the claimants are granted with 'loss
of consortium', 'Consortium and filial consortium', the amount awarded under
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C.M.A.No.3375 of 2021
the head 'loss of love and affection is hereby set aside. The amounts awarded
under the heads 'transportation' and 'funeral expenses' are confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S.No Description Amount awarded Amount awarded Award
by Tribunal by this Court confirmed or
(Rs) (Rs) enhanced or
reduced or
granted
1. Loss of dependency 20,28,000/- 55,79,513/- enhanced
2. Loss of consortium 20,000/- 40,000/- enhanced
3. Consortium and filial ---- 80,000/- granted
consortium
4. Transportation 10,000/- 10,000/- confirmed
5. Funeral expenses 20,000/- 20,000/- confirmed
6. Loss of love and 70,000/- --- Set aside
affection
Total 21,48,000/- 57,29,513/- Enhanced by
rounded off to 35,82,000/-
57,30,000/-
9.In view of the above, this Civil Miscellaneous Appeal is partly
allowed and the amount of Rs.21,48,000/- is enhanced to Rs.57,30,000/-,
together with interest at the rate of 7.5% per annum from the date of claim
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
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C.M.A.No.3375 of 2021
a copy of this judgment. Out of the total award amount the 1st claimant/wife of
the deceased is entitled for a sum of Rs.30,00,000/- and the minor child is
entitled for a sum of Rs.20,00,000/- and the 3rd claimant/mother of the
deceased is entitled for Rs.7,30,000/-. On such deposit is being made, the
major claimants are permitted to withdraw their share of the award amount
along with proportionate interest and costs, less the amount already
withdrawn, if any. In so far as, share of the minor child, the Tribunal is
directed to deposit the same in any of the nationalized bank in a fixed deposit
scheme, till the minor attains majority. Till such time, the interest accrued
thereon shall be withdrawn by the mother of the minor child/1st claimant,
once in three months, directly from the Bank. It is made clear, the claimants
are not entitled for interest during the delay period.
10.In fine, this Civil Miscellaneous Appeal is partly allowed. No costs.
[M.K.K.S.,J.] [V.S.G.,J.]
02.03.2022
Jer
Intex : Yes/No
Internet : Yes/No
Speaking order/Non speaking order
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C.M.A.No.3375 of 2021
To
1. The Motor Accident Claims Tribunal,
Additional District Court and Special Court,
Salem.
2. The Section Officer,
V.R.Section,
Madras High Court, Chennai.
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C.M.A.No.3375 of 2021
K.KALYANASUNDARAM, J.,
and
V.SIVAGNANAM, J.,
Jer
C.M.A.No.3375 of 2021
02.03.2022
https://www.mhc.tn.gov.in/judis
