Madras High Court

Manikandan vs Somasundaram on 16 August, 2023

                                                                          C.M.A. No.1175 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 16.08.2023

                                                     CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                               C.M.A.No.1175 of 2023

                  Manikandan                                   ...                   Appellant

                                                         Vs.

                  1.Somasundaram
                  2.IFFCO Tokio General Insurance Co. Ltd.,
                  1st Floor, Darling Building,
                  Durgam Road, Kallakurichi                 ...                   Respondents

                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the

                  Motor Vehicles Act against the judgment and decree dated 02.01.2023 made

                  in MCOP No.191 of 2020 on the file of the Motor Accident Claims Tribunal,

                  III Additional District Court, Villupuram @ Kallakurichi.



                                        For Appellants   : Mr.Amar Dineshbhai Pandiya

                                        For Respondents : Mr.B.Sivakolappan for R2



                  _____
                  1/9



https://www.mhc.tn.gov.in/judis
                                                                              C.M.A. No.1175 of 2023

                                                    JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant

challenging the quantum of compensation awarded by the Tribunal

2. The appellant filed claim petition in M.C.O.P. No.191 of 2020 on the

file of the Motor Accident Claims Tribunal, III Additional District Court,

Villupuram @ Kallakurichi claiming a sum of Rs.30,00,000/- as

compensation for the death of one Kavitha who died in the accident that took

place on 15.01.2020.

3. According to the appellant, on 15.01.2020 at about 10.00 hrs. while

the deceased Kavitha was walking on the left side of the road near Trichy to

Thanjavur Sasthira College opposite, the 1st respondent driver drove the car

bearing Regn.No.TN86 B 0438 in a rash and negligent manner and dashed

against the deceased and caused the accident. In the accident, the said

Kavitha died and hence the appellant filed claim petition claiming

compensation against the respondents.

_____

https://www.mhc.tn.gov.in/judis C.M.A. No.1175 of 2023

4. The first respondent remained exparte before the Tribunal.

5. The second respondent filed counter statement denying the

averments made in the claim petition. It is stated that the driver of the car

drove the same in normal speed by adhering traffic rules; that the deceased

without caution suddenly fell down in the main road and thus the accident

occurred; that hence, the first respondent is not responsible for the accident

and that the second respondent is not liable to pay compensation to the

appellant. The second respondent also denied the age, occupation and

monthly income of the deceased and prayed for dismissal of the claim

petition.

6. Before the Tribunal, the appellant examined himself as PW1 and

marked eleven documents as Exs.P1 to P11. On the side of the second

respondent neither document was marked nor witness was examined.

_____

https://www.mhc.tn.gov.in/judis C.M.A. No.1175 of 2023

7. The Tribunal, considering the oral and documentary evidence, held

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

of the car belonging to the 1st respondent and directed the second respondent

to pay a sum of Rs.13,29,600/- as compensation to the appellant, at the first

instance and recover the same from the first respondent, owner of the vehicle.

8. Aggrieved by the said order, the appellant has preferred the instant

appeal seeking enhancement of compensation.

9. The learned counsel appearing for the appellant submitted that

though the appellant had established that the deceased was working as a

vegetable vendor, the Tribunal fixed only a sum of Rs.6,000/- per month as

the notional income which is very meagre for the accident which took place

in the year 2020. Considering the cost inflation index and the nature of

avocation, the Tribunal ought to have fixed Rs.20,000/- per month as the

notional income of the deceased and hence prayed that the compensation

under the head loss of dependency has to be enhanced.

_____

https://www.mhc.tn.gov.in/judis C.M.A. No.1175 of 2023

10. The learned counsel for the second respondent per contra submitted

that though PW1 had stated in the claim petition that the deceased was

working as a vegetable vendor, he had admitted in the cross examination that

she was working in a garment factory. In view of the contradiction in the

evidence, the Tribunal was right in fixing the notional income at Rs.6,000/-

per month. The learned counsel further submitted that the award of

compensation under the head loss of love & affection in addition to loss of

consortium is erroneous. The amount awarded at Rs.25,000/- towards funeral

expenses is excessive and prayed for dismissal of the appeal.

11. Heard the learned counsel appearing for the appellant as well as the

second respondent and perused the materials available on record.

12. From the materials on record, it is seen that the deceased was aged

25 years at the time of accident. The appellant has not established the income

of the deceased. In the cross examination, PW1 has deposed that the

_____

https://www.mhc.tn.gov.in/judis C.M.A. No.1175 of 2023

deceased was working in a garment factory. This Court is of the view that it

would not really make any difference while computing monthly income on

the basis of notional income. The accident took place in the year 2020.

Considering the evidence on record, age of the deceased and the year of

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

sum of Rs.15,000/- per month as notional income of the deceased. The

appellant is entitled to 40% enhancement towards future prospects and the

applicable multiplier is 18. Thus, deducting 1/3rd towards personal expenses,

the compensation towards loss of dependency is calculated as follows -

15,000 + 6000 (15000 x 40%) x 12 x 18 x 2/3 = 30,24,000/-

13. The appellant is not entitled to compensation under the head loss of

love & affection since a sum of Rs.40,000/- has been awarded by the

Tribunal under the head loss of consortium. Hence, the amount of Rs.40000/-

awarded towards loss of love & affection is set aside. The amount of

Rs.25,000/- awarded towards funeral expenses is on the higher side and

_____

https://www.mhc.tn.gov.in/judis C.M.A. No.1175 of 2023

hence the same is reduced to Rs.15,000/-. The amount of Rs.15,000/-

awarded by the Tribunal towards loss of estate is reasonable and hence the

same is confirmed. Thus, the compensation awarded by the Tribunal is

enhanced from Rs.13,29,600/- to Rs.30,94,000/-, break-up as follows -

                         Sl. No Description             Amount         Amount         Award
                                                       awarded by    awarded by    confirmed or
                                                        Tribunal      this Court   enhanced or
                                                          (Rs)           (Rs)        granted
                         1.       Loss of dependency   12,09,600/-   30,24,000/-     Enhanced
                         2.       Loss of consortium     40,000/-      40,000/-     Confirmed
                         3.       Funeral expenses       25,000/-      15,000/-      Reduced
                         4.       Loss of love and       40,000/-         -          Set aside
                                  affection to the
                                  petitioner
                         5.       Loss of estate         15,000/-      15,000/-     Confirmed
                                         Total         17,52,200/-   30,94,000/-   Enhanced by
                                                                                   Rs.13,41,800/-

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

partly allowed and the compensation awarded by the Tribunal at

Rs.17,52,200/- is hereby enhanced to Rs.30,94,000/- together with interest at

7.5% per annum (excluding the default period, if any) from the date of

petition till the date of deposit. The 2nd respondent / Insurance company is

_____

https://www.mhc.tn.gov.in/judis C.M.A. No.1175 of 2023

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, owner of the

vehicle. On such deposit, the appellant is permitted to withdraw the award