Madras High Court

Saraswathi vs A.Shamugam on 10 March, 2022

                                                           1

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED:      10.03.2022

                                                       CORAM:

                            THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

                                                CMA No. 2057 of 2018


                   1.        Saraswathi
                   2.        Siva
                   3.        Sunitha @ Sumitha
                   4.        Suman                                 ... Petitioners/Appellants

                                                          Vs

                   1. A.shamugam

                   2. National Insurance Company Limited.,
                      No.751, Annasalai
                      3rd Floor, Chennai – 600 002.        ... Respondents/Respondents

                   Prayer: Civil Miscellaneous Appeal filed under Section 173 of the M.V.
                   Act, 1988 against the Judgment and decree dated 03.10.2017 and made in
                   M.A.C.T.O.P.No. 4883 of 2014 on the file of the Motor Accident Claims
                   Tribunal, Special Sub Judge No.2, to deal with M.C.O.P Cases Chennai.
                                                          ***


                                    For Appellants    : Mr. F.Terry Chella Raja

                                    For 1st Respondent : Exparte

                                    For 2nd Respondent : Mr.S.Arun Kumar
https://www.mhc.tn.gov.in/judis
                                                           2


                                                JUDGMENT

The claimants in M.C.O.P.No. 4883 of 2014 of 2018 on the file of

the Motor Accident Claims Tribunal / Special Sub Court No.2, Chennai are

the appellants herein.

2. They are aggrieved by the compensation granted by the

aforementioned Tribunal by Judgment and Decree dated 03.10.2017.

Necessity to file the claim petition arose owing to the unfortunate death of

the husband of the first claimant and the father of the second, third and

fourth claimants by name Parasuram in a motor accident on 07.06.2014.

3. The brief facts are that on 07.06.2014 at around 11.45 a.m., when

Parasuram was driving a motor cycle bearing Registration No. TN – 5-X-

1368 at Sullurpet, Nellore District, a lorry bearing Registration No. TN –

28-K-6706, according to the claimants, and which finding had also been

affirmed by the Tribunal, in a rash and negligent manner, had dashed

against the motor cycle of Parasuram, owing to which he suffered grievous

injuries and though first aid was given at a Government Hospital and he

was later admitted as inpatient at Rajiv Gandhi Government Hospital,

Chennai, he succumbed to the injuries and died on 11.06.2014. The https://www.mhc.tn.gov.in/judis

claimants based the petition on the allegation that the accident occurred

only owing to the rash and negligent driving of the lorry.

4. The parties went to trial before the aforementioned Tribunal and

the Tribunal had framed as the first point to be considered whether the

accident occurred due to the rash and negligent driving of the lorry and

then, as to who has to pay compensation and then as to what will be the

quantum of compensation to be determined.

5. During the course of the trial, two witnesses were examined on

the side of the claimants as PW-1 and PW-2. They also marked Exs. P-1 to

P-6. The second respondent/Insurance Company had joined issues

questioning the claim but they did not adduce oral or documentary

evidence.

6. With respect to the first point taken up for consideration, namely,

the manner in which the accident occurred, the Tribunal had examined the

evidence of PW2, who claimed that he had witnessed the accident and

placed the entire blame on the driver of the lorry. A copy of the FIR

marked as Ex.P-1 and the copy of the Final Report, marked as Ex.P-5 had https://www.mhc.tn.gov.in/judis

been examined by the Tribunal. On the basis of aforementioned documents

and also on the oral evidence of PW-2, the Tribunal came to the conclusion

that the accident occurred owing to the rash and negligent manner in

which the lorry bearing Registration No. TN-28K-6706 was driven and

therefore, placed negligence on the said lorry.

7. I would affirm that particular finding.

8. Since the lorry was insured by the second respondent it naturally

followed that the second respondent was obliged, as insurer to pay the

compensation which is granted either owing to any damages caused to the

vehicle or any accident caused by the said vehicle.

9. With respect to the quantum of compensation granted, which is

the issue now canvassed in the present appeal, the Tribunal noted that the

deceased, on the date of his death was aged about 45 years. The widow,

first claimant was aged about 40 years. Importantly the third claimant,

daughter had married. But it is stated by the learned counsel for the

appellant that she was aged about 21 years at the time of the accident.

https://www.mhc.tn.gov.in/judis

10. Parasuram was working as maistry and the Tribunal had

determined that it would be reasonable to fix his monthly income at

Rs.6,500/- per month. The Tribunal had placed reliance on the Judgment

of the Hon'ble Supreme Court reported in 2014 (1) TNMAC 459 (SC)

[Syed Siddiq Ali and Others Vs. Divisional Manager, United India

Insurance Company Limited]. Placement of reliance on this particular

Judgment had been doubted by the learned counsel for the appellant, who

stated that the accident in that particular case occurred in the year 2008

and therefore, the Tribunal had determined the monthly income at

Rs.6,500/-.

11. It is the grievance of the learned counsel that consideration

should have been given to the facts of this particular case since the

accident had occurred in the year 2014 and naturally there was increase in

the cost of living and this fact should have been taken into consideration

by the Tribunal.

12. One another factor which had been canvassed by the learned

counsel for the appellant is that the Tribunal had negatived the claim of the

third claimant / daughter as being a dependent of the deceased in view of https://www.mhc.tn.gov.in/judis

the fact that she had married. The Tribunal had taken a view that a married

daughter can never be termed as dependent of the deceased.

13. The third aspect which had been stated by the learned counsel

and I must stated that he was quite fair enough on that particular aspect

was regarding the future prospects which had been considered by the

Tribunal. The Tribunal had considered 50% of the monthly income for

future prospectus. But in a Constitution Bench Judgment of the Hon'ble

Supreme Court reported in 2017 (16) SCC 680 [ National Insurance

Company Limited., Vs. Pranay Sethi and Ors.] it had been stated that

40% can be granted as future prospects but it was limited Rs.25%.

Therefore, it has been stated that 25% should be granted as future

prospects.

14. The learned counsel for the respondent however urged that the

Court should confirm the order of the Tribunal and stated that the Tribunal

order did not warrant any interference.

15. I have carefully considered the arguments advanced by both

sides.

https://www.mhc.tn.gov.in/judis

16. With respect to the income to be determined of the deceased,

who was aged about 45 years in the year 2014, I am of the opinion that

there should be revision from notional income at Rs.6,500/- determined by

the Tribunal. It is a fact that Parasuram was working as a Maistry and it is

also a fact that a worker as maistry would not be paid salary with salary

slips and that proper acknowledgement would be kept by the employer

that the employee or the workman, in this case, Parasuram would be in a

position to maintain salary receipts to substantiate income. However, as a

family man with four dependants, it can be reasonably expected that he

would have been diligent indischarge of his work. A presumption cannot

be drawn that a Maistry is a person who earns very little income or is

entitled to be considered as one who earns very small amount every month.

Each work has a pride and dignity attached and this Court should

recognise that particular aspect. In view of that particular reasoning, I

would enhance the monthly income from 6,500/- per month to Rs.9,000/-

per month.

17. With respect to the dependency again I would interfere with the

order of the Tribunal negativing the claim of a daughter, who is married as

not being a dependent of her father. She may have an additional person to https://www.mhc.tn.gov.in/judis

support her but still the fact cannot be denied that at regular intervals even

a married daughter requires the support of her father for various needs.

The burden cannot be shifted. This is an issue which goes beyond

economic considerations and is an issue which surrounds the concept of a

family. Therefore, I would consider the third claimant / daughter, who is

married and was aged about 21 years can also be considered as dependent

on the deceased Parasuram.

18. With respect to the future income I would restrict it to 25%.

The monthly income is taken at Rs.9,000/- per month. The annual income

is thus Rs.1,08,000/-. Towards future prospectus, 25% can be added, then

the total annual income would be Rs.1,35,000/-. If 1/4th deduction is made

towards personal expenses in view of the fact that the daughter is also a

dependent, then the sum would come to Rs.33,750/- [1,35,000 x 25%] .

Therefore, the contribution towards the family would be (1,35,000 –

33,750) = 1,01,250/-. Applying a multiplier '14', it would come to

Rs.14,17,500/- [1,01,250 x 14). I would grant a sum of Rs.15,000/-

towards loss of estate, and would also grant a sum of Rs.15,000/- towards

transport expenses (since the accident took place in Andra Pradesh).

19. Now, the compensation amount granted is as follows:- https://www.mhc.tn.gov.in/judis

1. Loss of pecuniary benefits : Rs.14,17,500/-

                             2. Loss of Consortium               :   Rs.    40,000/-
                             3. Loss of love and Affection
                                (40,000 x 3)                     :
                                                                Rs. 1,20,000/-
                             4. Funeral expenses                 :
                                                                Rs.      15,000/-
                             5. Loss of estate                   :
                                                                Rs.      15,000/-
                             6. Transport charges                :
                                                                Rs.      15,000/-
                                                                ----------------
                                               Total             Rs.16,22,500/-
                                                                -----------------

20. The additional compensation granted is Rs.1,76,100/-. In fine,

the Appeal is partly allowed. No costs. The award is modified. The

compensation award is enhanced to Rs.16,22,500/-.

21. The respondent is directed to deposit the enhanced amount less

the amount already deposited, if any, with interest at the rate of 7.5% per

annum from the date of filing of the petition till date of deposit within a

period of six weeks from the date of receipt of a copy of this order. On

such deposit, the first appellant/claimant is permitted to withdraw a sum of

Rs.12,23,500/-, the second and fourth appellant/claimants are permitted to

withdraw a sum of Rs.3,00,000/-, the third appellant/claimant is permitted

to withdraw a sum of Rs.1,00,000/-, after adjusting the amount, if any,

already withdrawn. No order as to costs.