Madras High Court
B.Hasinabegam vs N.Vijayalakshmi on 7 March, 2022
C.M.A.Nos.1072 and 1073 of 2019
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED : 07.03.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.Nos.1072 and 1073 of 2019
and
C.M.P.Nos.2992 of 2019
C.M.A.No.1072 of 2019:
1.B.Hasinabegam
2.B.Muhamed Irfan
3.Minor B.Muhamed Niyas
minor is represented by next friend
1st petitioner his mother
Ms.N.Hasinabegam
4.B.Jeenath Sulthana
M.Kathija Beevee (died) ...Appellants/Petitioners
in C.M.A.No.1072 of 2019
Vs.
1/14
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1072 and 1073 of 2019
1.N.Vijayalakshmi
2.National Insurance Company Limited,
No.74-A, Paramathi Road,
Namakkal. … Respondents/Respondents
in C.M.A.No.1072 of 2019
(5th petitioner is reported as dead and the memo is recorded)
C.M.A.No.1073 of 2019:
1.B.Hasinabegam
2.B.Muhamed Irfan
3.Minor B.Muhamed Niyas
minor is represented by next friend
1st petitioner his mother
Ms.N.Hasinabegam
4.B.Jeenath Sulthana ...Appellants/Petitioners
in C.M.A.No.1073 of 2019
Vs.
1.N.Vijayalakshmi
2.National Insurance Company Limited,
No.74-A, Paramathi Road,
Namakkal. … Respondents/Respondents
in C.M.A.No.1073 of 2019
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1072 and 1073 of 2019
Prayer in C.M.A.No.1072 of 2019: Civil Miscellaneous Appeal is
filed under Section 173 of the Motor Vehicles Act against the Award
and Decree dated 28.09.2007 in M.C.O.P.No.158 of 2005 on the file of
the learned Principal District Judge, Motor Accidents Claims Tribunal,
Namakkal.
Prayer in C.M.A.No.1073 of 2019: Civil Miscellaneous Appeal is
filed under Section 173 of the Motor Vehicles Act against the Award
and Decree dated 28.09.2007 in M.C.O.P.No.159 of 2005 on the file of
the learned Principal District Judge, Motor Accidents Claims Tribunal,
Namakkal.
For Appellants : Mr.R.Madhusudanan
for M/s.S.Srinivasa Narayanan
in both appeals
For Respondents : Mr.D.Bhaskaran for R2
in both appeals
R1 – served in both appeals
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1072 and 1073 of 2019
COMMON JUDGMENT
Since both the claim petitions arise out of the same accident a
Common Judgment is being pronounced in both the appeals.
2.The facts in brief are as follows:
On 01.02.2005, the deceased Basheer was riding a TVS Suzuki
motor bike, bearing Registration No.PY 01C 7464 on the Salem to
Namakkal National Highway with his son Shajahan as a pillion rider.
When they neared Veeramalaikadu at Muthukalipatti, the driver of the
1st respondent bus bearing Registration No.TN 28P 9599 driving the
bus in a rash and negligent manner and coming from the opposite
direction dashed against the motor bike. The rider Basheer died on the
spot and his son Shajahan had also died on the spot itself. The
claimants, namely, the wife, children and mother of the deceased
Basheer had filed M.C.O.No.158 of 2005 claiming compensation of
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C.M.A.Nos.1072 and 1073 of 2019
Rs.20,00,000/- and the mother and siblings of the deceased Shajahan
had filed M.C.O.P.No.159 of 2005 claiming compensation of
Rs.10,00,000/-.
3.The 1st respondent owner of the bus remained absent and it is
only the 2nd respondent Insurance Company has who contested the
claims. It was their case that the accident had occurred only on account
of the rash and negligent driving of the deceased Basheer who had tried
to overtake the bus. They had also denied the occupation of both the
father and the son. Basheer was stated to have worked as a Welder in
Dubai and his son Shajahan was said to carry on a business in the sale
of motor spare parts.
4.The 1st petitioner in the above Claim Petition Hasinabegam had
adduced evidence as PW1 and an eye witness was examined as PW2.
PW3 Sharbuthin had deposed with regard to the business of Shajahan.
The Tribunal had found that the driver of the bus belonging to the 1st
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C.M.A.Nos.1072 and 1073 of 2019
respondent and insured with the 2nd respondent to be the cause of
accident on account of the rash and negligent driving.
5.In M.C.O.P.No.158 of 2005 filed seeking compensation for the
death of Basheer, the Tribunal had held that the claimants had not been
able to prove that he was employed in Dubai and therefore, arriving at a
notional income of Rs.3,000/- per month and adopting the multiplier of
11, considering the age of the deceased which was 55 years and after
deducting the contribution to the family, had arrived at a sum of
Rs.3,96,000/- towards loss of income. Further, a sum of Rs.50,000/-
was awarded under the head of loss of precious life of the deceased
Basheer, Rs.20,000/- towards loss of love and affection to the
petitioners, Rs.20,000/- was awarded to the prolonged mental agony
and pangs of separation to the 1st petitioner wife and Rs.10,000/- was
awarded for funeral expenses, totaling a sum of Rs.4,50,000/- was
awarded with interest @ 7.5% per annum from the date of petition till
the date of realisation and costs.
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C.M.A.Nos.1072 and 1073 of 2019
6.In M.C.O.P.No.159 of 2005 filed seeking compensation for the
death of the son,Shajahan, the Tribunal had held that since the business
had not been proved a notional income of a sum of Rs.100/- per day
and Rs.60/- was taken as contribution to the family. Therefore, the
monthly income was worked out to a sum of Rs.1,800/- per month and
thereby, the annual income was calculated at Rs.21,600/-. The
multiplier of 8 was adopted considering that the age of the deceased
was 22 years and arrived at a sum of Rs.1,72,800/- towards loss of
income. A sum of Rs.50,000/- was awarded under the head of loss of
precious life of the deceased Shajahan. Further, a sum of Rs.10,000/-
was awarded towards funeral expenses, Rs.30,000/- was awarded to the
loss of love and affection of the 1st petitioner and Rs.20,000/- was
awarded towards pain and sufferings, totaling, a sum of Rs.2,80,000/-
was awarded with interest @7.5% per annum from the date of petition
till the date of realisation and costs.
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C.M.A.Nos.1072 and 1073 of 2019
7.Challenging the said Award in M.C.O.P.No.158 of 2005,
C.M.A.No.1072 of 2019 was filed and C.M.A.No.1073 of 2019 was
filed in M.C.O.P.No.159 of 2005.
8.Heard the learned counsel for the appellants and the learned
counsel for the 2nd respondent and perused the papers.
9.A perusal of Ex.P.9 – Health Card of the deceased Basheer and
Ex.P.10 - Passport of the deceased Basheer would clearly show that the
deceased Basheer was indeed working in UAE and the entries in his
passport would show that he had entered into the Country lastly on
13.01.2005 and had left UAE on 12.01.2005. The accident had
occurred on 01.02.2005. Further, Ex.P.9 which is the Health Card
indicates that the said Basheer was recognised as a resident of UAE and
the Health Card has been issued by the Ministry. The Passport contains
the seal of UAE which would indicate that his residence permit was
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C.M.A.Nos.1072 and 1073 of 2019
valid for the period 19.04.2004 to 01.09.2007. Therefore, sufficient
proof has been shown by the claimants to prove that the deceased
Basheer has indeed worked in UAE. However, there is no direct proof
about his avocation. Therefore, it can safely be concluded that he
would have earned at least a sum of Rs.6,000/- per month to which
considering his age, 10% has been added to the future prospects.
Therefore, the monthly notional income is Rs.6,600/- and applying the
multiplier of 11, the total loss of income would be a sum of
Rs.8,71,200/-, after deducting 1/4th for his personal expenses, the loss
of income for the family should be worked at a sum of Rs.6,53,400/-.
Therefore, this Court is enhancing the Award under the head of loss of
income to a sum of Rs.6,53,400/- as against the sum of Rs.4,50,000/-
awarded by the Tribunal. The compensation awarded under the other
heads are confirmed.
10.As regards C.M.A.No.1073 of 2019 which is filed challenging
the Award in M.C.O.P.No.159 of 2005, the Tribunal ought to have
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C.M.A.Nos.1072 and 1073 of 2019
given credit to the evidence of PW3 who has spoken about the
deceased Shajahan working in his Shop. Though he had submitted that
he was earning a sum of Rs.8,000/-, the same has not been supported
by proof. Therefore, the Tribunal ought to have arrived at a notional
income of Rs.4,500/- to which 40% had been added to their future
prospects. Considering the age of the deceased which was 22 years on
the date of his death, the multiplier of 18 should be adopted and 50%
should have been deducted towards personal expenses. Therefore, the
award amount under the head of loss of income works out to a sum of
Rs.6,80,400/- as against the sum of Rs.1,72,800/- awarded by the
Tribunal. The award amount under the other heads is confirmed.
11.Accordingly, These Civil Miscellaneous Appeals are partly
allowed. Consequent to reworking of the quantum of compensation in
C.M.A.No.1072 of 2019, the 2nd respondent Insurance Company is
directed to deposit the compensation amount now determined by this
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C.M.A.Nos.1072 and 1073 of 2019
Court with interest @ 7.5% per annum, less the statutory deposit
already made, to the credit of M.C.O.P.No.158 of 2005 on the file of
the learned Principal District Judge, Motor Accidents Claims Tribunal,
Namakkal, within a period of six weeks from the date of receipt of a
copy of this order. On such deposit, the appellants 1, 2 and 4 are
permitted to withdraw the share apportioned to them with proportionate
accrued interests and costs, by making necessary applications. The
share of the minor/3rd respondent shall be deposited in any one of the
Nationalised Banks in fixed deposit under the reinvestment scheme
initially for a period of three years. The interest accruing on the share
of the minor shall be paid to the 1st appellant/mother of the minor, once
in three months, till he attains majority.
12.In C.M.A.No.1073 of 2019, the 2nd respondent Insurance
Company is directed to deposit the compensation amount now
determined by this Court with interest @ 7.5% per annum, less the
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C.M.A.Nos.1072 and 1073 of 2019
statutory deposit already made, to the credit of M.C.O.P.No.159 of
2005 on the file of the learned Principal District Judge, Motor
Accidents Claims Tribunal, Namakkal, within a period of six weeks
from the date of receipt of a copy of this order. On such deposit, the 1st
appellant is permitted to withdraw amount with proportionate accrued
interests and costs, by making necessary applications.
13.The appeal is dismissed with regard to the appellants 2 to 4 as
they are not the dependents of the deceased Shajahan.
14.The claimants in both appeals are directed to pay the Court fee
for the enhanced compensation amount, if required. The Tribunal
below shall not disburse the enhanced amount till such time as the
certified copy showing proof of payment of Court Fee has been
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C.M.A.Nos.1072 and 1073 of 2019
produced by the claimants. In all other respects, the Award of the
Tribunal below is confirmed. No costs. Consequently, connected
Miscellaneous Petition is closed.
07.03.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
The Principal District Judge,
Motor Accidents Claims Tribunal,
Namakkal.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1072 and 1073 of 2019
P.T. ASHA, J,
mps
C.M.A.Nos.1072 & 1073 of 2019
and CM.P.Nos.2992 of 2019
07.03.2022
https://www.mhc.tn.gov.in/judis
