Madras High Court
T.Raghava Simhan vs V.Shivaji on 30 March, 2022
C.M.A.No.1753 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.03.2022
CORAM
THE HON'BLE MRs.JUSTICE J.NISHA BANU
C.M.A.No.1753 of 2009
1.T.Raghava Simhan
2.R.Kowshik (Minor)
3.R.Vijayaraghavan(Minor)
Petitioners 2 & 3 are minors rep.by their
father and next friend. ... Appellants
Vs.
1.V.Shivaji
2.The Oriental Ins.Co., Ltd.
Motor III Party Claims Office,
Jawaharlal Nehru Salai, Oil Mill Stop,
State Bank of India upstairs, Thiruvallur,
Thiruvallur District. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and Decree dated 12.02.2007
made in M.C.O.P.No.377 of 2004, on the file of the Motor Accidents
Claims Tribunal, (Additional District and Sessions Judge ) Fast Track
Court III, Poonamallee.
For Appellants : M/s.J.Mahalingam &
Maithri Mahalingam
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C.M.A.No.1753 of 2009
For 2nd Respondent : M/s.M.J.Vijayaraghavan
****
JUDGMENT
Aggrieved by the judgment and decree dated 12.02.2007 passed by
the Motor Accidents Claims Tribunal (Additional District & Sessions
Judge ) Fast Track Court III, Poonamallee in M.C.O.P.No.377 of 2004,
the claimants have come up with this Civil Miscellaneous Appeal,
seeking enhancement of compensation.
2. The appellants/claimants are the husband and the sons of the
deceased Bharathi, who died in a motor accident. On 15.06.2004, at
about 11.00 a.m. while the deceased was travelling as pillion rider in a
TVS motorcycle bearing Registration No.TN-22-M-6274, a lorry bearing
Registration No.TN-01-A-9099, belonging to the first respondent and
insured with the second respondent, driven by its driver allegedly, came
in a rash and negligent manner from the same direction and dashed
against the motorcycle from the back side and caused the fatal accident.
Therefore, the claimants claimed a sum of Rs.10,00,000/- as
compensation.
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C.M.A.No.1753 of 2009
3. Before the Tribunal, on the side of the Claimants, P.W.1 and
P.W.2 were examined and exhibits Ex.P1 to P11 were marked. On the
side of the Respondents, no witness was examined and no document was
marked.
4. The second respondent - Insurance Company has filed a
counter affidavit in which it was stated that the appellants have to prove
the accident, age, occupation, income and their relationship with the
deceased. The rider of the motorcycle without having a valid driving
licence to ride the motor cycle, drove the same in the Velacherry Road,
near Pallikaranai and came behind the first respondent's lorry and applied
sudden break due to pit in the road, as a result of which, the driver the
fell down due to imbalance and sustained injury.
5. After considering the pleadings, oral and documentary evidence
on record, the Tribunal has awarded a sum of Rs.4,92,000/- under the
following heads:-
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C.M.A.No.1753 of 2009
Loss of income Rs.4,32,000/-
Loss of love and affection to the Rs. 60,000/-
claimants 1 to 3( each Rs.20,000/-)
Total *Rs.4,92,000/-
(* Total amount was wrongly calculated as Rs.4,97,000/-
instead of Rs.4,92,000/- by the Tribunal)
6. Not being satisfied with the quantum of compensation awarded
by the Tribunal, the appellants have come out with the present appeal
seeking enhancement of compensation.
7. The learned counsel appearing for the appellants submitted that
the deceased was working as an LIC agent and was earning a sum of
Rs.8,333/- p.m. The Tribunal ought to have fixed the monthly income of
the deceased at Rs.8,333/- For every policy, premium agent would get
commission and till the maturity of the policy, they would get
commission. As per the Judgment of the Hon'ble Apex Court reported
in Ramrao Lala Borse and another vs. New India Assurance Co.,
Ltd., and another, 2018 ACJ 973 , the Supreme Court has held that the
deceased, who is a bachelor aged 29 and working as an Assistant Teacher
on contract basis for a period of five years in a school earning monthly
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C.M.A.No.1753 of 2009
salary of Rs.2,800/-, wherein the claimants are aged father and mother.
In that case, the Tribunal has observed that had the deceased been alive
and continued in service he would have been regularised and would have
been entitled to the benefits of 6th Pay Commission and therefore,
assessed the income at Rs.40,000/- p.m.
8. In pursuance to the above view point emphasised in the
Judgment relied upon by the appellants. It is further submitted that the
Tribunal ought to have at least fixed the income of the deceased as
Rs.6,500/- per month instead of Rs.3,000/-. In this connection, the
learned counsel for the appellants also relied on the decision of the
Hon'ble Supreme Court in Syed Sadiq Vs. United India Insurance
Co.Ltd., reported in (2014) 2 SCC 735. Further, according to the
learned counsel for the appellants, the Tribunal ought to have awarded
the amount towards future prospectus and funeral expenses .
9. He also referred to the decision of the Hon'ble Supreme Court
reported in Mohammed Siddique and another vs. National Insurance
Co. Ltd. and others reported in 2020 ACJ 751, wherein the Hon'ble
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C.M.A.No.1753 of 2009
Supreme Court has held that so long as the oral testimony of the witness
remained unshaken and there were also no contradictions in his
testimony, the evidence has to be accepted and acted upon and therefore,
prays for allowing the present appeal.
10. Per contra, the learned counsel for the 2nd respondent-
Insurance Company submitted that the amounts awarded by the Tribunal
under different heads are not meagre and the impugned order is a well
reasoned one and requires no interference and therefore, this civil
miscellaneous appeal is liable to be dismissed.
11. I have considered the arguments advanced by the learned
counsel for both sides and also perused the evidence available on record.
12. The Tribunal has considered a meagre amount of Rs.3,000/-
as monthly income of the deceased Bharathi by placing reliance on the
decision of the Hon'ble Supreme Court in Syed Sadiq's case, referred to
supra. Considering the fact that the accident took place in the year 2004,
I am of the view that the notional income of the deceased Bharathi can be
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C.M.A.No.1753 of 2009
considered as Rs.4,500/- per month for the purpose of awarding
compensation to award just compensation to the appellants/claimants.
Hence, this Court has taken into consideration the monthly income of the
deceased as Rs.4,500/- and after deducting 1/3 of the amount towards
personal expenses of the deceased, then he would be contributing to his
family a sum of Rs.3,000/-. Considering the age of the deceased as 30
years, at the time of accident, as per the Apex Court Judgment reported
in 2009(2) TNMAC 1 (SC) in Smt.Sarla Varma Vs. Delhi Transport
Corporation and another, the correct multiplier to be applied is
multiplier 17. Further, it is seen that the Tribunal has not fixed future
prospects of the deceased. This Court is inclined to consider the future
prospects of the deceased as 40% of the monthly income as per the
decision of the Hon'ble Supreme Court in National Insurance Company
Limited Vs. Pranay Sethi and Others reported in (2017) 16 SCC 680.
With regard to the age of the deceased which is 30, the Tribunal has also
adopted the wrong multiplier of 18 instead of 17. Therefore, the amount
awarded towards loss of dependency is to be modified. The Tribunal has
awarded a sum of Rs.20,000/- each towards loss of love and affection to
the appellants 1 to 3 is hereby confirmed. Similarly, no amount was
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awarded under the head of funeral expenses by the Tribunal. Therefore,
this Court awards a sum of Rs.10,000/- under this head. Hence, the total
compensation is arrived as follows:
Heads and calculation Amount Enhanced/
(Rs.) awarded by Confirmed/
this Court(Rs.) Granted
Loss of earning capacity
i) Income per month 4,500/-
ii) Add 40% future prospects 1,800/-
(4,500 x 40%) -----------
6,300/-
Total ------------
iii) Less : Personal expenses at 1/3 4,200/-
(Rs.6,300 /- 1/3)
iv) Annual Income of the 50,400/-
deceased (Rs.4,200 x 12)
v) Multiplier 17 (50,400 x 17) 8,56,800/- .8,56,800/- Enhanced
Loss of love and affection to the 60,000/- Confirmed
appellants
Funeral expenses 10,000/- Granted
Total Rs. 9,26,800/-
13. Accordingly, this civil miscellaneous Appeal is partly allowed
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C.M.A.No.1753 of 2009
and the compensation amount awarded by the Tribunal is enhanced from
Rs.4,92,000/- to Rs.9,26,800/- together with interest at the rate of 7.5%
per annum from the date of the claim petition till the date of such deposit.
The appellant is directed to pay necessary Court fee, if any, on the
enhanced compensation. Therefore, the 2nd 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 respective shares with proportionate interest
and costs, less the amount if any, already withdrawn, by filing suitable
applications before the Tribunal. No costs.
30.03.2022
Index : Yes/No
Internet : Yes/No
Speaking : Non speaking order
kkd
J.NISHA BANU,J.
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C.M.A.No.1753 of 2009
kkd
To
The Motor Accident Claims Tribunal
(Additional District & Sessions Judge )
Fast Track Court III, Poonamallee.
C.M.A.No.1753 of 2009
30.03.2022
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