Madras High Court
Gangamma vs R.Brindadevi on 9 March, 2022
CMA.546 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2022
CORAM
THE HON'BLE MRS.JUSTICE J.NISHA BANU
Civil Miscellaneous Appeal No.546 of 2014
1.Gangamma
2.Battala Subbarayudu ... Appellants
Vs.
1. R.Brindadevi
2.Universal Sompo General Insurance Co.Ltd.,
Capitale Towers, 5th floor, 554 and 555
Anna Salai, Teynampet, Chennai-18 ... Respondents
Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act 1988, against the judgment and decree dated 30.10.2013
MACT.O.P.No.3102 of 2011 on the file of the Chief Small Causes Court
(Motor Accidents Claims Tribunal), Chennai.
For Appellants : Mr.N.M.Muthurajan
For respondents : R1 exparte before the tribunal
Ms.Srividya for R2.
JUDGMENT
This appeal has been filed by the appellants/claimants for enhancement
of compensation. The Tribunal passed an award in favour of the
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CMA.546 of 2014
appellants/claimants against the second respondent for a sum of Rs.5,26,000/-
together with interest at the rate of 7.5% from the date of the claim petition till
the date of realization.
2. The case of the claimants before the Tribunal is that on 06.07.2011 at
08.00 hours, their son/the deceased was walking along Rajiv Garden Road,
Thoraipakkam from east to west direction, at that time, the first respondent's
lorry bearing Reg.No.TN-25-B-2634 was driven by its driver in a rash and
negligent manner dashed the deceased from behind and so, he sustained serious
head injuries and died on the spot. The claimants filed claim petition in
MCOP.No.3102 of 2011 and claimed a total compensation of Rs.12,00,000/-
from the respondents.
3. Denying the averments in the claim petition, the second respondent
filed a counter denying the averments made by the claimants and stated that the
quantum claimed by the petitioner as compensation is exorbitant and prayed for
dismissal of the claim petition.
4. The Court below after considering the pleadings, oral and
documentary evidence of both sides, awarded a sum of Rs.5,26,000/- under the
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CMA.546 of 2014
following heads :
S.No. Particulars Amount in Rs.
1. Loss of dependency 4,86,000/-
2. Loss of love and affection 25,000/-
3. Funeral expenses 10,000/-
4. Transport expenses 5,000/-
Total 5,26,000/-
Aggrieved over the same, the appellants/claimants have filed this appeal seeking
enhancement of the compensation.
5. According to the learned counsel for the appellants, the deceased was
a mason and was getting Rs.500/- per day at the time of accident. The accident
is of the year 2011. But the tribunal fixed monthly income at Rs.4,500/- and not
taken Rs.500/- per day as the income of the deceased as deposed by P.W.3
holding that there is no proof that P.W.3 worked with the deceased and the
same is not correct. Further the Tribunal erred in not awarding any amount on
the head of future prospects and the award passed by the Tribunal is not a just
and reasonable compensation. Hence, prays to enhance the compensation.
6. The learned counsel for the 2nd respondent-Insurance company would
submit that the Tribunal after considering both the oral and documentary
evidence of both sides has awarded just compensation and hence, the well
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CMA.546 of 2014
considered award of the Court below needs no interference.
7. Heard the learned counsel for the appellants and the learned counsel
for the second respondent and perused the materials available on record.
8. On a perusal of the materials available on record, it is seen that the
Tribunal on considering the nature of job performed by the deceased i.e.,
mason, pointed out that he would have not got the chance to work for all the 30
days in a month and in the absence of income proof, fixed Rs.4,500/- per month
as notional income and further considering the relevant period of accident and
that the deceased was a bachelor, the Tribunal deducted 50% towards the
personal expenses and arrived at loss of dependency as follows:-
Rs.4,500/- - ½ x 12 x 18 = Rs.4,86,000/-.
9. According to the learned counsel for the appellants, the accident is of
the year 2011 and at that time, mason was getting Rs.500/- per day. The
learned counsel relied on the decision reported in 2019 (1) TN MAC 4 (DB)
[Andal and others Vs.Avinav Kannan and others], wherein a Division Bench
of this court fixed Rs.6,500/- as the notional income of the deceased who was
working as a daily wager in the Butcher Shop.
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CMA.546 of 2014
10. In this connection, it is also relevant to look into the decision of the
Supreme Court reported in (2014) 2 SCC 735 [Syed Sadiq and others Vs.
Divisional Manager, United India Insurance Company Limited] wherein, the
claimant is a vegetable vendor and sustained 85% functional disability in a
motor accident and claimed compensation. The Supreme Court held that the
claimant cannot be expected to produce documents to prove his monthly income
and fixed his monthly income at Rs.6,500/-. Since the appellants are aggrieved
only against the notional income fixed by the Tribunal, applying the above
decision of the Honourable Supreme Court and this Court, it is appropriate to
fix Rs.6,500/- per month as notional income of the deceased. There is no quarrel
over the multiplier adopted by the Tribunal. Therefore, the same is confirmed.
11. Further, this court gives due consideration to the judgment of the
Hon'ble Supreme Court reported in 2017 (2) TNMAC 609 (SC) [National
Insurance Co. Ltd., Vs. Pranay Sethi and others] wherein, it is held as
follows:-
“59.4. In case the deceased was self-employed or on a fixed
salary, an additional of 40% of the established income should be the
warrant where the deceased was below the age of 40 years. An
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CMA.546 of 2014
addition of 25% where the deceased was between the age of 40 to 50
years and 10% where the deceased was between the age of 50 to 60
years should be regarded as the necessary method of computation. “
12. Accordingly, 40% of the income is added as future prospects to the
notional income of the deceased and the loss of dependency is arrived as
below:-
Rs.6,500/- + 40% - ½ x 12 x 18 = Rs.9,82,800/-.
Insofar as the compensation granted under other heads are concerned, this court
is of the view that the same are just and reasonable.
13. Considering all the above circumstances, the Award passed by the
Tribunal is modified as follows:-
Sl. Headings Amount Amount Award
No. Awarded by awarded by confirmed
the Tribunal this Court or
Rs. Rs. enhanced
1 Loss of dependency 4,86,000/- 9,82,800/- enhanced
2 Loss of love and 25,000/- 25,000/- confirmed
affection
3 Funeral expenses 10,000/- 10,000/- confirmed
4 Transport expenses 5,000/- 5,000/- confirmed
Total 5,26,000/- 10,22,800/- enhanced
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CMA.546 of 2014
14. In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.5,26,000/- is hereby enhanced
to Rs.10,22,800/- (Rupees Ten lakhs twenty two thousand eight hundred only)
together with interest at the rate of 7.5% per annum from the date of petition
till the date of deposit. The second respondent/ Insurance Company is directed
to deposit the enhanced award amount now determined by this Court along
with 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 judgment. On
such deposit, the appellants are permitted to withdraw the enhanced award
amount along with interest and costs as apportioned by the Tribunal. No costs.
09.03.2022
Index:Yes/No
nvsri
To
1. The Judge, Small Causes Court
Motor Accidents Claims Tribunal, Chennai.
2. The Section Officer,
VR Section,
High Court, Madras.
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CMA.546 of 2014
J.NISHA BANU, J.
nvsri
https://www.mhc.tn.gov.in/judis
CMA.546 of 2014
C.M.A.No.546 of 2014
09.03.2022
https://www.mhc.tn.gov.in/judis
