Madras High Court

Pasavachari vs Vathanavadi on 9 August, 2023

                                                                           C.M.A.No.824 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.824 of 2022

                  1.Pasavachari
                  2.Basamma                                          ...Appellants/Petitioners

                                                       Vs.

                  1.Vathanavadi
                  2.The Manager,
                    Shriram General Insurance Co.Ltd.,
                    E-8 RIICO Industrial Area, Sitapura,
                    Jaipur, Rajasthan – 302022.
                    Its Branch at, 2nd Floor, Shanthi Nagar,
                    Opp.to.CSI Church, Denkanikottai Road,
                    Hosur – 635 109.                           ...Respondents/Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                  Vehicles Act, 1988, against the award in Judgment and Decree dated
                  05.10.2021 made in M.C.O.P.No.1001 of 2020 on the file of the
                  Motor Accident Claims Tribunal and Special District Court, Krishnagiri.




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                                                                            C.M.A.No.824 of 2022

                                        For Appellants    : Mr.SP.Yuaraj
                                        For Respondents : R1-Exparte
                                                          Mrs.V.Pushpa for R2.

                                                    JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellants

challenging the quantum of compensation granted by the Tribunal in the

award dated 05.10.2021 made in M.C.O.P.No.1001 of 2020 on the file of the

Motor Accident Claims Tribunal, Special District Court for Motor Accident

Claims Cases, Krishnagiri.

2. The appellants filed M.C.O.P. No.1001 of 2020 on the file of the

Motor Accident Claims Tribunal, Special District Court for Motor Accident

Claims Cases Krishnagiri claiming a sum of Rs.60,00,000/- as compensation

for the death of one Amaresh, who died in the road accident that took place

on 29.05.2020.

3. According to the appellants, on 29.05.2020 at 18.30 hours,

when the deceased Amaresh was riding a two-wheeler bearing Regn.No.TN–

70-AA-8582 in Berigai to Eluvalapalli road near Store Rajappa's Land, a milk

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van bearing Reg.No.TN-67-K-3118, driven by its driver-cum-owner in the

opposite direction in a rash and negligent manner, dashed against the

two-wheeler and caused accident. In the accident, the said Amaresh sustained

grievous injuries and died in the hospital. The deceased was aged 26 years at

the time of the accident and was earning Rs.25,000/- per month. Hence, the

appellants filed a claim petition claiming compensation against the

respondents.

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

5. The 2nd respondent/Insurance Company filed a counter statement

denying all the averments made by the appellants in the claim petition and

stated that the accident did not occur due to the negligent driving by the

driver-cum-owner of the van; that the driver of the van did not have a valid

driving license at the time of the accident; that the vehicle of the first

respondent was not insured with them. The second respondent also denied the

age, occupation and health condition of the deceased and stated that in any

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event, the total compensation claimed by the appellants are highly excessive

and prayed for dismissal of the claim petition.

6. Before the Tribunal, the appellants examined two witnesses as P.W.1

and P.W.2 and marked seventeen documents as Exs.P.1 to P.17.

The respondents neither marked any document nor examined any witness.

7. The Tribunal after considering the oral and documentary evidence

held that the accident occurred due to rash and negligent driving by the

1st respondent, driver-cum-owner of the milk van and directed the second

respondent being the insurer of the offending vehicle to pay a sum of

Rs.25,70,354/- as compensation to the appellants.

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

present appeal seeking enhancement of compensation.

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9. Learned counsel for the appellants submitted that though the

appellants have established that the deceased was working as a carpenter at

the time of accident and was earning Rs.25,000/- per month, the Trial Court

had taken the notional income as Rs.9,000/- per month, which is meagre.

The learned counsel further submitted that considering the year of the

accident and the avocation, the Tribunal ought to have fixed a higher notional

income and hence, prayed for enhancement of compensation.

10. First respondent remained ex-parte before the Tribunal and the

learned counsel for the appellants made an endorsement to dispense with

notice to the first respondent. Hence, notice to the first respondent is

dispensed with.

11. Learned counsel for the second respondent, per contra, submitted

that the appellants have neither established avocation nor the income of the

deceased, in such circumstances, the Tribunal was right in fixing the notional

income as Rs.9,000/- per month; that there is no reason to interfere in the

award and prayed for dismissal of the above appeal.

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12. Heard the learned counsel appearing for the appellants as well as

the second respondent and perused the materials available on record.

13. The only question involved in the instant appeal is whether the

compensation awarded by the Tribunal is just and reasonable?

14.From the materials on record, it is seen that the appellants have

examined P.W.1/father of the deceased to show that the deceased was

working as a carpenter. However, they have not produced any documentary

proof to either prove the income or the avocation of the deceased.

In the Judgment relied on by the learned counsel for the second respondent in

Mythili and others vs. A.Lakhsmi and another reported in 2018 SCC online

Mad 3504, this Court had taken the notional income for the carpenter as

Rs.12,000/- per month, for an accident which took place in the year 2015.

But, considering the fact that the deceased was working as carpenter, the year

of the accident and the age of the deceased, this Court is of the view that it

would be just and reasonable to fix Rs.15,000/- per month as notional income

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of the deceased. The deceased was aged 26 years at the time of the accident

and hence, the appellants are entitled to enhancement of 40% towards future

prospects and the multiplier applicable is 18. Since the deceased died as

bachelor, half of his income has to be deducted towards his personal

expenses. Thus, the compensation awarded under the head Loss of

Dependency is modified as follows:-

Rs. 15,000 + 6000 (40% X 15000) X 12 X 18 X 1/2 = 22,68,000/-

15. The compensation awarded by the Tribunal under other heads is

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

compensation awarded by the Tribunal is enhanced from Rs.25,70,354/- to

Rs.34,77,554/-, break-up as follows :-

                         Sl. Description              Amount         Amount       Award
                         No                          awarded by    awarded by confirmed
                                                      Tribunal      this Court or enhanced
                                                        (Rs)           (Rs)     or granted
                         1.       Loss of            13,60,800/-   22,68,000/-   Enhanced
                                  Dependency
                         2.       Loss of Estate       15,000/-      15,000/-    Confirmed
                         3.       Funeral expenses     15,000/-      15,000/-    Confirmed


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                                                                               C.M.A.No.824 of 2022

                         4.       Loss of Consortium       80,000/-     80,000/-      Confirmed
                                  (Appellants 1 and 2)   (40,000X2)


                         5.       Medical Bill           10,99,554/-   10,99,554/-    Confirmed
                                         Total           25,70,354/-   34,77,554/-    Enhanced
                                                                                          by
                                                                                     Rs.9,07,200/-

16. With the above modification, this Civil Miscellaneous Appeal is

partly allowed and the compensation awarded by the Tribunal at

Rs.25,70,354/- is hereby enhanced to Rs.34,77,554/- 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 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 receipt of a copy of this

Judgment. On such deposit, the appellants are permitted to withdraw their

share of the award amount along with proportionate interest and costs, less

the amount if any, already withdrawn, on the basis of apportionment fixed by

the Tribunal. The appellants are directed to pay the necessary Court Fee, if