Madras High Court

Shamshad vs National Switch Gears on 9 August, 2023

                                                                                   C.M.A.No.1674 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 09.08.2023

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                C.M.A.No.1674 of 2023

                     1.Shamshad
                     2.Rizwana
                     3.Rashith                                                       ... Appellants

                                                           Vs

                     1.National Switch Gears,
                       No.94-B/33, Sidco Industrial Estates,
                       Ambattur, Chennai – 98.

                     2.The Divisional Manager,
                       United India Insurance Company Limited,
                       3rd Floor, Door No.147/58C, Kamarajar Street,
                       Kancheepuram.                                              ... Respondents

                     Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
                     Vehicles Act, 1988, against the judgment and decree dated 22.11.2021 made
                     in M.C.O.P.No.633 of 2017 on the file of the Motor Accident Claims
                     Tribunal, Additional District Court (FTC), Kanchipuram.


                                        For Appellants          : Mr. M. Lokesh
                                        For Respondents         : Mrs. R. Sree Vidhya, for R2
                                                                  R1 – Ex parte


                     1/9
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                                                                                  C.M.A.No.1674 of 2023

                                                     JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellants

challenging the quantum of compensation granted by the Tribunal in the

award dated 22.11.2021 made in M.C.O.P.No. 633 of 2017 on the file of the

Motor Accident Claims Tribunal, Additional District Court (FTC),

Kanchipuram.

2. The appellants filed M.C.O.P. No.633 of 2017 on the file of the

Motor Accident Claims Tribunal, Additional District Court (FTC),

Kanchipuram claiming a sum of Rs.25,00,000/- as compensation for the

death of one Bilal, who died in the accident that took place on 26.06.2017.

3. According to the appellants, on 26.06.2017 at about 07.20 am,

while the deceased Shaik Sanaulla along with his two sons viz., Bilal and

Rasheed, were riding the motorcycle bearing Registration No.TN-25-AU-

1047 towards Sunguvarchatram on a Bangalore to Chennai National

Highway, the car bearing Registration No.TN-20-AU-3503 which was

driven by the driver in a rash and negligent, came from behind and hit the

motorcycle and caused the accident; that in the above said accident, the said

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Shaik Sanaulla and his two sons sustained grievous injuries; that

immediately they were taken to Kancheepuram Government Hospital and

admitted. However, Shaik Sanaulla died on the same day and his elder son

Bilal died on 06.07.2017. Hence, the appellants filed claim petition

claiming compensation against the respondents.

4. The 1st respondent remained ex-parte before the Tribunal.

5. The second respondent filed counter statement denying all the

averments made by the appellants in the claim petition. According to the

second respondent, the driver of the first respondent did not possess any

valid driving license and not insured the vehicle with them at the time of

accident; that total compensation claimed by the appellants is excessive and

prayed for dismissal of the claim petition.

6. The 1st appellant examined herself as PW.1 and Rasheed, eye-

witness to the accident as PW.2. Nine documents were marked as Ex.P.1 to

Ex.P.9. Neither documents were marked nor witnesses were examined on

the side of the second respondent.

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7. The Tribunal after considering the evidence and documents

filed on the side of the appellants, held that the accident occurred due to the

rash and negligent driving by the driver of the first respondent; directed the

second respondent to pay a sum of Rs.11,28,400/- as compensation to the

appellants at the first instance and recover the same from the first

respondent and dismissed the claim petition as against the appellants 2 and

8. Aggrieved by the said award, the appellants have preferred the

present appeal seeking enhancement of compensation.

9. The learned counsel for the appellant submitted that the

quantum of compensation awarded by the Tribunal is meagre, in as much as

the Tribunal fixed a very low notional income of Rs.7,000/- per month for

the deceased, although, the appellants had established that he was doing the

business of trading in Mangoes and earning more than Rs.50,000/- per

month. The learned counsel therefore, sought for enhancement of

compensation.

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10. Since R1 remained ex parte before the Tribunal, the learned

counsel for the appellants prayed for dispense with notice to R1. Hence,

notice to R1 is dispensed with.

11. The learned counsel for the second respondent per contra

submitted that no evidence has been let in by the appellants to either prove

the avocation and income of the deceased; that in the absence of the same,

the Tribunal was justified in fixing the notional income as Rs.7,000/- per

month and hence, prayed for dismissal of the appeal.

12. The only question in the instant appeal is-

Whether the Tribunal was right in fixing the notional income of Rs.7,000/- per month?

13. The appellants had examined PW.1, the mother of the

deceased to show that the deceased was doing the business of trading in

Mangoes and was earning Rs.50,000/- per month. The appellants have not

produced any documentary evidence to prove the income of the deceased.

However, considering the age of the deceased, his avocation and the year of

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accident, this Court is of the view that it would be just and reasonable to fix

Rs.13,000/- per month as notional income of the deceased. The deceased

was aged 21 years at the time of accident. The appellants are entitled to

40% enhancement towards future prospects. The multiplier applicable is

'18'. The deceased was a bachelor at the time of accident and hence, 50%

has to be deducted towards his personal expenses. Thus, the compensation

amount towards loss of income has to be:-

Rs.13,000+5,200(13,000x40%)-x12x18x1/2=Rs.19,65,600/-

No amount was awarded towards loss of love and affection to the appellants

2 and 3, who are the siblings of the deceased, hence, a sum of Rs.40,000/-

each to the appellants 2 and 3 is awarded towards loss of love and affection.

The compensation awarded by the Tribunal under other heads are just and

reasonable and hence, the same are confirmed. Thus, the compensation

awarded by the Tribunal is enhanced from Rs.11,28,400/- to Rs.21,15,600/-,

break-up as follows -

                            Sl. Description           Amount         Amount          Award
                            No                       awarded by    awarded by     confirmed or
                                                      Tribunal      this Court    enhanced or
                                                        (Rs)           (Rs)         granted
                            1.    Loss of income     10,58,400/-    19,65,600/-     Enhanced
                            2.    Funeral expenses    15,000/-        15,000/-     Confirmed



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                                                                                        C.M.A.No.1674 of 2023


                            3.    Loss of consortium     40,000/-          40,000/-      Confirmed
                            4.    Loss of estate         15,000/-          15,000/-      Confirmed
                            5.    Loss of love and             -           80,000/-       Awarded
                                  affection
                                          Total         11,28,400/-       21,15,600/-    Enhanced
                                                                                             by
                                                                                        Rs.9,87,200/-

14. With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.11,28,400/- is hereby enhanced to Rs.21,15,600/- together with interest

at 7.5% per annum from the date of petition till the date of deposit. The

appellants are not entitled for any interest for the delay period on the

amount of Rs.9,87,200/- enhanced by this Court as per the order of this

Court dated 18.07.2023, made in C.M.P.No.11689 of 2023 in

C.M.A.SR.No.68168 of 2023. The second respondent / Insurance Company

is directed to deposit the award amount, now determined by this Court along

with interest and costs, less the amount already deposited, if any, within a

period of six (6) weeks from the date of a receipt of copy of this Judgment

at the first instance and recover the same from the first respondent. On such