Madras High Court
Loganayagi vs T.G.Ashokkmar on 9 August, 2023
C.M.A.No.1437 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 09.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.1437 of 2022
1.Loganayagi
2.Priyavidya
3.Minor Udayamkumar
4.Minor Manju
5.Minor Kannagi
6.Minor Gokulkrishnan
Minors represented by their mother Loganayagi
7.Annammal
8.Govindasamy (Died) ... Appellants
Vs.
1.T.G.Ashokkmar
2.Reliance General Insurance Company Limited,
House No.629, Annasalai,
Teynampet, Chennai - 600 018.
PRAYER : The Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
02.12.2011 in MCOP.No.1106 of 2009 on the file of the Motor Accident
Claims Tribunal/ Additional District Judge, FTC No.III, Tiruvallur.
For Appellant : Mr.M.Lokesh
For Respondents : Mr.P.Suresh Srinivasan for R2
No appearance for R1
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C.M.A.No.1437 of 2022
JUDGMENT
The Civil Miscellaneous Appeal is filed by the appellant challenging
the quantum of compensation awarded by the Tribunal in MCOP.No.1106 of
2009, dated 02.12.2011, on the file of the Motor Accident Claims Tribunal/
Additional District Judge, FTC No.III, Tiruvallur.
2. The appellants are the claimants in MCOP.No.1106 of 2009 on the
file of the Motor Accident Claims Tribunal/ Additional District Judge, FTC
No.III, Tiruvallur. They filed the said claim petition claiming a sum of
Rs.8,00,000/- as compensation for the death of Ramakrishnan, who died in
the accident that took place on 27.02.2009.
3. According to the appellants, on 27.02.2009 at about 03.00 p.m.
while the deceased was proceeding to Tiruvallur in a two wheeler bearing
Registration No.TN-20-L-3306, on the extreme left side of the road and was
nearing Othapai Bridge, the driver of the mini lorry belonging to the first
respondent bearing Registration No.TN-3o-F-5618 drove the same in a rash
and negligent manner without observing the Traffic Rules and dashed
against the two wheeler of the deceased. Due to the said impact, the
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C.M.A.No.1437 of 2022
deceased died on the spot. Therefore, the appellants filed the claim petition
claiming a sum of Rs.8,00,000/- as compensation.
4. The first respondent, the owner of the offensive vehicle, remained
ex-parte before the Tribunal.
5. The second respondent/Insurance Company filed counter
statement denying all the averments made in the claim petition and stated
that the accident did not happen due to the rash and negligent driving by the
driver of the mini lorry bearing registration No.TN-3o-F-5618; they denied
the age, income; stated that the driver-cum-owner of the mini lorry was not
possessing a heavy motor vehicle endorsement to drive the vehicle; that he had
only a light motor vehicle endorsement; and that in any event, the
compensation claimed by the appellant is excessive and prayed for dismissal of
the claim petition.
6. Before the Tribunal, the appellants examined P.W.1 to P.W.3
and marked five documents as Exs.P1 to P5. On the side of the second
respondent/ Insurance Company neither oral nor documentary evidence was
adduced.
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C.M.A.No.1437 of 2022
7. The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occured due to the rash and negligent the act of
driver of the first respondent's vehicle and directed the second respondent
being the insurer of the offending vehicle to pay a sum of Rs.6,00,000/- as
compensation to the appellants. Aggrieved over the said award, the appeallants
have preferred the instant appeal.
8. The learned counsel for the appellants submitted that the
appellants have established that the deceased was working as a Head Mason
and had examined P.W.3 to prove the avocation and income of the deceased.
P.W.3 has deposed that the deceased was earning a sum of Rs.12,000/- per
month at the time of accident. However, the Tribunal had erroneously taken
the notional income of the deceased as Rs.4,500/- per month. The
compensation awarded under different heads are also meagre. The Tribunal
failed to award any amount towards loss of estate. Hence, the learned
counsel prayed for enhancement of compensation.
9. Though notice was served on the first respondent, none had
entered appearance on his behalf before this Court.
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C.M.A.No.1437 of 2022
10. Per contra, the learned counsel for the second
respondent/Insurance Company submitted that though P.W.3 was examined
on the side of the appellants and no documentary evidence was produced to
prove the income of the deceased. The Tribunal therefore, rightly fixed the
notional income at Rs.4,500/- per month. The award of the Tribunal,
therefore, does not call for any interference and prayed for dismissal of the
appeal.
11. Heard the learned counsel appearing for the appellants as well
as the learned counsel appearing for the second respondent/Insurance
Company and perused all the materials available on record before this
Court.
12. The only question involved in this case is whether the
compensation awarded by the Tribunal is just and reasonable.
13. On perusal of the records, it is seen that the appellants
examined P.W.3 to show that the deceased was working as a Head Mason
and earning a sum of Rs.12,000/- per month. However no documents have
been filed to corraborate this evidence. Therefore, the Tribunal was right in
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C.M.A.No.1437 of 2022
fixing the notional income. However, the Tribunal erred in fixing the meagre
income of Rs.4,500/- per month. Considering the age, avocation and the
year of accident, this Court is of the view that it would be just and
reasonable to fix Rs.7,000/- per month as the notional income of the
deceased. The deceased is entitled to 25% towards future prospects. The
Tribunal had taken the age of the deceased as 39 years. However, this Court
finds that in the postmortem report, the age of the deceased is shown as 45
years. Further, Ex.P.5 the legal heirship certificate shows that the first
appellant/wife of the deceased was aged about 40 years at the time of the
accident. Considering the above facts, this Court is of the view that the
Tribunal ought to have taken 45 years as the age of the deceased. Hence, the
multiplier applicable is 14. In view of the number of dependants, 1/5th has
to be deducted towards his personal expenses. Thus, the compensation under
the head “Loss of income” is calculated as follows:- Rs.7,000/- +
Rs.1,750/- (25% x 7,000) x 12 x 14 x 4/5 = Rs.11,76,000/-. The award of
compensation under the other heads are just and reasonable and no
interference is called for. On perusal of the records, it reveals that the
Tribunal has not awarded any compensation under the head “Loss of Estate”
and therefore, the claimants are entitled to a sum of Rs.15,000/-.
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C.M.A.No.1437 of 2022
15. Thus, the compensation awarded by the Tribunal is modified as
follows:
S.N Description Amount Amount Award
o awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of 5,40,000 11,76,000 Enhanced
income
2. Funeral 5,000 15,000 Enhanced
Expenses
3. Loss of 30,000 30,000 confirmed
consortium to
the first
petitioner
4. Loss of love 25,000 25,000 confirmed
and affection
5. Loss of estate - 15,000 granted
Total Rs.6,00,000/- Rs.12,61,000/- Enhanced by
Rs.6,61,000/-
16. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.6,00,000/- is hereby
enhanced to Rs.12,61,000/- together with interest at the rate of 7.5% per
annum (excluding the default period, if any) from the date of petition till the
date of deposit. The appellants are directed to pay necessary Court fee, if
any, on the enhanced compensation. The first appellant/ wife of the deceased
is entitled to a sum of Rs.9,11,000/-. The appellants 2 to 6, who are the son and
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C.M.A.No.1437 of 2022
daughters of the deceased are entitled to a sum of Rs.75,000/- each and the
seventh appellant, who is the mother of the deceased is entitled to a sum of
Rs.50,000/- of the award amount. The second respondent/Insurance Company
is directed to deposit the modified award amount now determined by this
Court along with interest and costs, less the amount already deposited if any,
within a period of six weeks from the date of receipt of a copy of this
judgment. On such deposit, the appellants are permitted to withdraw the
award amount along with interest and costs, after adjusting the amount if
any, already withdrawn. It is made clear that the appellants are not entitled
for any interest for the delay period, on the enhanced amount of
Rs.6,36,000/-, as per the order of this Court, dated 22.04.2022 in
C.M.P.No.18515 of 2021 in C.M.A.SR.No.40700 of 2013 and
C.M.P.No.8413 of 2022 & M.P.No.1 of 2013 in C.M.A.SR.No.40700 of
2013 filed to set aside the order of dismissal for default and to condone the
delay of 306 days in filing the C.M.A.SR.No.40700 of 2013. No costs.
09.08.2023
Index: Yes/No
Internet: Yes/No
Speaking order: Yes/ No
gba
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C.M.A.No.1437 of 2022
To
1.The Additional District Judge, FTC No.III,
Motor Accident Claims Tribunal,
Tiruvallur.
2.The Section Officer
VR Section
High Court of Madras, Chennai – 600 104.
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C.M.A.No.1437 of 2022
SUNDER MOHAN,J.
gba
C.M.A.No.1437 of 2022
09.08.2023
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