Madras High Court
Jamuna vs S.Devi on 21 August, 2023
C.M.A. Nos.1666 & 1769 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.08.2023
CORAM :
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.Nos.1666 & 1769 of 2023
Jamuna .. Appellant in CMA No.1666 of 2023
1.Malliga
2.Deepak (Minor)
3.Thansika (Minor)
4.Suseela
Venkatesan (Died) .. Appellants in CMA No.1769 of 2023
Vs.
1.S.Devi
2.The United India Insurance Company Ltd.,
No.134, Greams Road,
Chennai – 600 006. .. Respondent in both CMAs
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the judgment and decree dated
27.10.2021 made in M.C.O.P. Nos.4581 & 4583 of 2016 on the file of the
Special Sub Court No.2, Motor Accident Claims Tribunal, Small Causes
Court, Chennai.
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C.M.A. Nos.1666 & 1769 of 2023
In both CMAs
For Appellants : Ms.G.Anitha
For Respondents : Mr.P.Krishnan for R1
Mr.D.Bhaskaran for R2
COMMON JUDGMENT
These appeals have been filed by the appellants challenging the
quantum of compensation granted by the Tribunal in the award dated
27.10.2019 made in M.C.O.P. Nos.4581 & 4583 of 2016 on the file of the
Special Sub Court No.2, Motor Accident Claims Tribunal, Small Causes
Court, Chennai.
2. Both the appeals arise out of the same accident and hence they are
disposed of by this common judgment.
3. The appellants in the both the appeals filed the above said claim
petitions claiming compensation for the injuries sustained by the appellant in
CMA No.1666 of 2023 and CMA No.1769 of 2023 for the death of one
Boopathy who died in the accident that took place on 11.03.2016.
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C.M.A. Nos.1666 & 1769 of 2023
4. According to the appellants, on the date of accident, at about 6.00
hrs. while the deceased was riding his motorcycle bearing Regn.No.TN07 AP
9556 alongwith the appellant in CMA No.1666 of 2023 as pillion rider, on
the Valapuram – Arakonam Road, near Ammarvanthangal, a tractor bearing
Regn.No.TN73 V 5473 driven in a rash and negligent manner, came and
dashed against the motorcycle and caused the accident. Hence, the appellants
filed the above said claim petitions claiming compensation against the
respondents.
5. The first respondent remained exparte before the Tribunal.
6. The second respondent filed counter statement and denied all the
averments made in the claim petitions including the involvement of the
alleged vehicle. According to the second respondent, the accident occurred
only due to the negligent act of the rider of the motorcycle; hence, the second
respondent is not liable to pay compensation to the appellants and prayed for
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C.M.A. Nos.1666 & 1769 of 2023
dismissal of the claim petitions.
6. Before the Tribunal, the appellant in CMA No.1666 of 2023
examined herself as PW1 and 1st appellant in CMA No.1769 of 2023 was
examined as PW2 and two other witnesses were examined as PW3 & PW4.
Forty Six documents were marked as Exs.P.1 to P.46. Neither document was
marked nor witness was examined on the side of the second respondent.
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 tractor belonging to the first respondent
and directed the second respondent to pay compensation to the appellants.
Aggrieved by the said order, the appellants have preferred the present appeal
seeking enhancement of compensation.
8. The learned counsel appearing for the appellants in CMA No.1666
of 2023 submitted that the appellant had suffered fracture in the femur bone
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C.M.A. Nos.1666 & 1769 of 2023
and on account of the injuries she is unable to stand and work for a long
time; that due to the injuries sustained by her in the accident she has lost her
earning capacity; that the Tribunal ought to have adopted multiplier method
for awarding compensation towards disability; that the compensation
awarded under different heads are also meagre and prayed for enhancement
of compensation.
8 (i). The learned counsel for the appellants in CMA No.1769 of 2023
submitted that the deceased was a B.A. (Tamil Literature) graduate and the
appellants have marked Exs.P16, 17 & 18 provisional and convocation
certificate issued by Tamil Nadu Teachers Education University to show that
the deceased was a qualified B.Ed teacher. The deceased was working
temporarily in a company in which PW4 was the Manager. They had marked
Ex.P29-salary certificate and Ex.P44 – appointment order which reveals that
the deceased was earning Rs.11,000/- per month at the time of accident. The
learned counsel submitted that considering the fact that the deceased was a
B.Ed graduate and that there was every possibility of the deceased getting
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C.M.A. Nos.1666 & 1769 of 2023
employment on the basis of the educational qualification the Tribunal ought
to have fixed notional income more than Rs.11,000/- earned by the deceased
and prayed for enhancement of compensation.
9. The learned counsel for the second respondent, per contra, submitted
that in the absence of any evidence to show that the appellant in CMA
No.1666 of 2023 suffered functional disability, the Tribunal, rightly awarded
compensation towards disability by adopting percentage method. The learned
counsel further submitted that even according to the appellants in CMA
No.1769 of 2023, the deceased was earning only Rs.11,000/- per month. The
Tribunal therefore rightly fixed the notional income of the deceased as
Rs.11,000/- per month; that the compensation awarded by the Tribunal under
different heads in both the appeals are also just and reasonable; hence no
interference is called for in the award passed by the Tribunal and prayed for
dismissal of both the appeals.
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C.M.A. Nos.1666 & 1769 of 2023
10. Heard the learned counsel appearing for the appellants as well as
first and second respondent and perused the materials available on record.
11. The only issue involved in both the appeals is “whether the amount
of compensation awarded by the Tribunal is just and reasonable”.
CMA No.1666 of 2023
12. From the materials on record, it is seen that the compensation
awarded by the Tribunal under all the heads are just and reasonable except the
compensation under the heads transportation and loss of earnings.
Considering the nature of injuries, compensation under the head
transportation is enhanced from Rs.4,000/- to Rs.10,000/-. As regards
compensation under loss of earnings, this court is of the view that since the
appellant had suffered “Grade IIIB Open Comminuted Fracture shaft of
Femur Right. PCL Bony Avulsion Fracture Right Knee”, the appellant would
not have attended her work atleast for a period of four months. Thus, the
compensation towards loss of earnings is enhanced from 22,250/- to
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C.M.A. Nos.1666 & 1769 of 2023
Rs.44,500/-. The compensation awarded under other heads are just and
reasonable and the same are confirmed. Thus, the compensation awarded by
the Tribunal is enhanced from Rs.2,22,600/- to Rs.2,50,900/- break-up as
follows -
Sl. Description Amount awarded Amount Award
No. by Tribunal awarded by confirmed or
(Rs) this Court (Rs) enhanced or
granted
1. Disability 1,00,000/- 1,00,000/- Confirmed
2. Pain & Sufferings 25,000/- 25,000/- Confirmed
3. Medical expenses 17,133/- 17,133//- Confirmed
4. Extra nourishment 10,000/- 10,000/- Confirmed
5. Transportation 4,000/- 10,000/- Enhanced
6. Attender charges 4,200/- 4,200/- Confirmed
7. Future treatment 40,000/- 40,000/- Confirmed
expenses
8. Loss of earnings 22,250/- 44,500/- Enhanced
Total 2,22,583/- 2,50,833/- Enhanced by
rounded off to rounded off to Rs.28,300/-
Rs.2,22,600/- Rs.2,50,900/-
CMA No.1769 of 2023
13. In so far as quantum of compensation in CMA No.1769 of 2023 is
concerned, admittedly the deceased was employed and was earning only
Rs.11,000/- per month as seen from Ex.P29-salary certificate and the
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C.M.A. Nos.1666 & 1769 of 2023
evidence of PW4. It is also the fact that the deceased was a B.Ed Graduate.
This court is conscious of the fact that when there is an income proof, the
Tribunal had to compute loss of income on that basis. However, in the
peculiar facts of this case, this court is of the view that in order to award just
compensation, the educational qualification of the deceased has to be
considered for the purpose of fixing the notional income although she was
earning only Rs.11,000/- per month at the time of accident. Considering the
educational qualification, age and the year of accident, this court is of the
view that it would be just and reasonable to fix the notional income of the
deceased as Rs.13,000/- per month. Thus, the loss of dependency is
calculated as follows -
13,000 + 5200 (13000 x 40%) x 12 x 17 x ¾ = Rs.27,84,600/-
The compensation awarded under other heads are just and reasonable
and the same are confirmed. Thus, the compensation awarded by the Tribunal
is enhanced from Rs.25,46,200/- to Rs.29,74,600/-, break-up as follows -
Sl. Description Amount Amount Award
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C.M.A. Nos.1666 & 1769 of 2023
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of 23,56,200/- 27,84,600/- Enhanced
dependency
2. Loss of 1,60,000 1,60,000 Confirmed
consortium
3. Loss of Estate 15,000 15,000 Confirmed
4. Funeral 15,000/- 15,000/- Confirmed
expenses
Total 25,46,200/- 29,74,600/- Enhanced by
Rs.4,28,400/-
14. In the result -
(a) C.M.A No.1666 of 2023 is partly allowed and the
compensation awarded by the Tribunal at Rs.2,22,600/- is hereby
enhanced to Rs.2,50,900/- together with interest at 7.5% per annum
(excluding the default period, if any) from the date of petition till
the date of deposit.
(b) C.M.A No.1769 of 2023 is partly allowed and the
compensation awarded by the Tribunal at Rs.25,46,200/- is hereby
enhanced to Rs.29,74,600/- together with interest at 7.5% per
annum (excluding the default period, if any) from the date of
petition till the date of deposit.
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C.M.A. Nos.1666 & 1769 of 2023
(c) The second respondent / Insurance Company is directed to
deposit the enhanced award amount in both the appeals, 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.
(d) On such deposit, the appellant in CMA No.1666 of 2023
and the appellants 1 & 4 in CMA No.1769 of 2023 are permitted
to withdraw their share of the award amount along with
proportionate interest and costs, less the amount if any, already
withdrawn. The share of the minor appellants 2 &3 in CMA
No.1769 of 2023 are directed to be deposited in any one of the
Nationalised Bank, till the minors attain majority. The 1st
appellant in CMA No.1769 of 2023 is permitted to withdraw the
accrued interest once in three months. The appellants in both the
appeals are directed to pay the necessary court fee, if any, on the
enhanced award amounts. No costs.
21.08.2023
rgr
Index: Yes/No
SUNDER MOHAN, J
rgr
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C.M.A. Nos.1666 & 1769 of 2023
To
1. The Special Subordinate Judge,
Motor Accident Claims Tribunal,
Tiruvannamalai.
2.The Section Officer,
VR Section, High Court,
Madras.
C.M.A.Nos.1666 & 1769 of 2023
Dated: 21.08.2023
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