Madras High Court
Peeyaru Bee vs K.A.Jai Siva on 21 September, 2022
C.M.A.No.1046 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2022
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
C.M.A.No.1046 of 2017
1. Peeyaru Bee
2. Mallika Bee
3. Shaira
4. Babu
5. Aziram Bee
6. Fathima
7. Rafi .. Appellants
-Vs.-
1. K.A.Jai Siva
2. United India Insurance Company Ltd.,
19, Andiappa Gramani Street,
Royapuram, Chennai 21 .. Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the decree and judgment dated 07.12.2010
passed in M.C.O.P.No.4473 of 2006 on the file of the Motor Accident
Claims Tribunal cum Additional District Judge, FTC-II, Chennai.
For Appellants : Mr.Amar D.Pandiya
For Respondent-1 : Mr.R.Ganesh Babu
For Respondent-2 : Ms.R.Vijayakamala
1/8
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C.M.A.No.1046 of 2017
JUDGMENT
The petitioners before the Tribunal who are the legal representatives
of the deceased Hyed Basha are the appellants before this Court seeking
enhancement of the Award passed by the Motor Accident Claims Tribunal,
FTC-II, Chennai in M.C.O.P.No.1473 of 2006 dated 07.12.2010.
2. The appellants are the wife and children of the said Hyed
Basha, who died in a road accident on 23.06.2006 involving a motor-cycle
belonging to the first respondent and insured with the second respondent-
Insurance Company. The said Hyed Basha was working as a coolie in
Chennai Port Trust. The appellants had claimed a sum of Rs.10,00,000/- as
compensation.
3. The first respondent had appeared before the Tribunal and filed
a counter stating that the accident had occurred only because the deceased
has suddenly crossed the road without bothering to look out for the vehicles
and as a result of which, she had fallen down and sustained head injuries,
which ultimately resulted in his death. He had further contended that the
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C.M.A.No.1046 of 2017
learned III Metropolitan Magistrate, George Town, Chennai before whom
the driver was charged had acquitted him stating that there was no rash and
negligent driving on the part of the two wheeler rider and it was only the
deceased, who had run across the road. Therefore, he would submit that
since the deceased was responsible for the accident, no compensation can be
claimed by the appellants.
4. The second respondent-Insurance Company had more or less
adopted the contentions of the first respondent and put the strict proof of all
the contentions of the claim petition.
5. The Tribunal by its Award dated 07.12.2010 had held that the
driver of the first respondent's motor-cycle was responsible for the accident
and had proceeded to pass an Award for a sum of Rs.3,89,600/-. The
Tribunal had adopted a notional income of Rs.3,500/- and taking into
account the age of the appellant, had adopted a multiplier of 11 and after
deducting 1/5th towards personal expenses, granted a sum of Rs.3,69,600/-
under the head of loss of income. Adding the other heads, the Tribunal had
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C.M.A.No.1046 of 2017
arrived at a total compensation of Rs.3,89,600/-. Aggrieved by the quantum
of compensation, the appellants are before this Court.
6. Heard the learned counsels on either side and perused the
materials available on record.
7. The appellants have contended that the deceased was working
as a coolie in the Port Trust, earning daily wage atleast a sum of Rs.200/-
and in these circumstances, the adoption of monthly notional income of
Rs.3,500/- is on the lower side. Further, the Tribunal has not taken into
account the future prospects. The respondents have not rebutted the
contention of the appellants that the deceased was working as a coolie,
considering the year of the accident and the age of the deceased is aged
about 52 years and at the relevant point of time, the judgment of the Hon'ble
Supreme Court laid down in (2017) 16 SCC 680 [National Insurance
Company Ltd., Vs Pranay Sethi and Others) had not been pronounced. In
view of the same, the Award is modified to the limited extent of enhancing
the monthly notional income from Rs.3,500/- to Rs.4,500/-. Therefore, the
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C.M.A.No.1046 of 2017
monthly income of the deceased would be a sum of Rs.5,94,000/-, after
adopting the multiplier of 11. (Rs.3,500/- x 12 x 11), of which, 1/5th has to
be deducted towards the future prospects. Therefore, the compensation
under the head of loss of income would be a sum of Rs.4,75,200/- Therefore,
the re-worked compensation is as follows:-
Heads Amount by the Amount Awarded
Tribunal in Rs by this Court in
Rs
Loss of Income 3,69,600 4,75,200
Funeral Expenses 5,000 5,000
Medical expenses 5,000 5,000
Loss of love and affection 10,000 10,000
Total 3,89,600 4,95,200
8. The appeal is partly allowed and the Award of the Tribunal is
modified, enhancing the compensation amount from Rs.3,89,600/- to
Rs.4,95,200/- The respondents are directed to deposit the said amount to the
credit of M.C.O.P.No.4473 of 2006 along with interest at the rate of 7.5%
per annum from the date of claim petition till the date of deposit and costs as
awarded by the Tribunal, less, the amount, if any already deposited, within a
period of six weeks from the date of receipt of a copy of this judgment.
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C.M.A.No.1046 of 2017
Further, the appeal has been filed with a delay and by condoning the delay
in C.M.P.No.11259 of 2016, this Court has directed that the interest would
be waived for the period of 1814 days. On such deposit being made, the
claimants are permitted to withdraw the award amount, along with
proportionate accrued interest (except for the above said delayed period
of 1814 days) and costs as awarded by the Tribunal, less, the amount, if any
already withdrawn, by filing necessary application before the Tribunal. The
enhanced amount shall be proportioned among the claimants as per the
Award of the Tribunal. The claimants 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 produced by the claimants.
In other respects, the Award of the Tribunal is hereby confirmed. There
shall be no order as to costs in the present appeal.
21.09.2022
Index : Yes / No
Speaking order / Non-speaking order
srn
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C.M.A.No.1046 of 2017
To
The Motor Accident Claims Tribunal,
Chief Judge Small Causes Court,
Chennai.
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C.M.A.No.1046 of 2017
P.T.ASHA, J.,
srn
C.M.A.No.1046 of 2017
21.09.2022
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