Madras High Court

Neelavathy vs Srinivasan on 23 August, 2023

                                                                                 CMA No. 1755 / 2023

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 23.08.2023

                                                        CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                 Civil Miscellaneous Appeal No. 1755 of 2023
                     Adhikesavan (Died)
                     1. Neelavathy
                     2. Durgadevi
                     3. Subashini                                       ... Appellants
                                                          Versus
                     1. Srinivasan

                     2. The Manager,
                        National Insurance Company Limited,
                        Old No. 144, New No. 46, 3rd Floor,
                        Moore Street, Regina Mansion,
                        Chennai – 600 106.

                     (R1 remained ex parte before the Tribunal.
                     Hence, notice may be dispensed with for
                     R1 in this appeal)                         ... Respondents
                     PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against the Judgment and Decree dated
                     09.03.2020 made in M.C.O.P. No. 05 of 2017 on the file of
                     MACT/Additional District Court (FTC) at Kanchipuram.


                                  For Appellants     : Mr. MA.P.Thangavel for Mr. M.Lokesh

                                  For Respondents    : R1 – Exparte

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                                                                                    CMA No. 1755 / 2023

                                                     Mrs. R.Sreevidhya (for R2)


                                                      JUDGMENT

The appeal has been filed by the appellants challenging the award

passed by the Tribunal in M.C.O.P. No. 5 of 2017 dated 09.03.2020.

2.The appellants had filed a claim petition before the Tribunal

stating that on 13.11.2016 at about 4 p.m., Mohankumar was riding in the

two wheeler bearing Registration No. TN 21 AQ 2098 along with pillion

rider near Iyyangarkulam Flower Mill, a two wheeler bearing

Registration No. TN 25 AY 4559 which came from Vandavasi to

Kancheepuram direction driven in a rash and negligent manner, dashed

against the two wheeler in which deceased travelled as a result of which,

the deceased sustained severe injuries and died. Hence, the appellants

have filed claim petition seeking compensation.

3.The first respondent remained ex-parte before the Tribunal.

4.The second respondent filed a counter denying all the averments

made in the claim petition stating that the deceased was riding the same

without proper driving license and did not wear helmet at the time of the https://www.mhc.tn.gov.in/judis

CMA No. 1755 / 2023

accident; that the accident occurred only due to the rash and negligent

driving of the deceased; and that as per the MVI Report, there was no

damage to the vehicle of the deceased; that the driver's name of the first

respondent's vehicle, who is primarily liable, is not mentioned in the

claim petition; that the vehicle of the first respondent is not insured with

the second respondent and that in any case, the compensation claimed by

the appellants is excessive and prayed for dismissal of the petition.

5.The appellants examined two witnesses on their side as PW.1

and PW.2 and marked Ex.P.1 to Ex.P.9. The second respondent neither

examined any witness nor marked any documents.

6.The Tribunal after considering the oral and documentary

evidence found that the accident occurred due to the rash and negligent

riding by the rider of the two wheeler bearing Registration No. TN 25

AY 4559 and awarded a compensation of Rs. 8,26,000/- to the appellants

to be paid by the second respondent. Aggrieved by the said quantum of

compensation, the appellants had preferred the instant appeal.

7.The learned counsel for the appellants submitted that the https://www.mhc.tn.gov.in/judis

CMA No. 1755 / 2023

quantum of compensation awarded by the Tribunal is meagre inasmuch

as the Tribunal fixed a very low notional income of the deceased at

Rs. 5,000/- per month though the appellants had established that the

deceased was an engineering student. The learned counsel further

submitted that for the accident which took place in the year 2015 and

2016, the Division Bench of this Court had fixed Rs. 20,000/- as notional

monthly income for an engineering student and relied upon the Judgment

of the Honourable Supreme Court in Basanti Devi and another Vs.

Divisional Manager, New India Assurance Co.Ltd., and others reported

in 2022 (1) TN MAC 148 (SC); Judgment of the Honourable Supreme

Court in Managing Director, Tamil Nadu State Transport Corporation

Limited Vs. Neela and other reported in 2019 (2) TN MAC 153 (DB);

and Judgment of this Court in The Managing Director, Tamil Nadu

State Transport Corporation Limited Vs. K. Jayalaxmi and other in

C.M.A. No. 2114 & 1134 of 2022 dated 30.06.2023 in support of his

submissions. Therefore, the learned counsel prayed for enhancement of

compensation.

8.The first respondent remained ex parte before the Tribunal. The

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CMA No. 1755 / 2023

learned counsel for the appellants has made an endorsement to dispense

with the notice to the first respondent. Accordingly, notice to the first

respondent is dispensed with.

9.The learned counsel for the second respondent, per contra,

submitted that the Tribunal had awarded just and reasonable

compensation and there is no reason to interfere with the same and

prayed for dismissal of the appeal.

10.The question that arises for consideration in the instant appeal

is whether the compensation awarded by the Tribunal is just and

reasonable?

11.Admittedly, the deceased was an engineering student as could

be seen from Ex.P.7 and Ex.P.9 Bonafide Certificate and Identity Card of

the deceased issued by the College Authorities. Therefore, this Court

finds that the notional income fixed by the Tribunal is meagre. Though

the learned counsel for the appellants submitted that in other cases, the

Division Bench of this Court has fixed the notional monthly income as

Rs. 20,000/- for the engineering student, this Court is of the view that the https://www.mhc.tn.gov.in/judis

CMA No. 1755 / 2023

fixation of notional income depends on the facts and circumstances of

this case. Considering the fact that the deceased was an engineering

student and he was doing part-time job, the year of the accident and his

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

Rs. 17,000/- as notional income per month for the deceased. The

deceased was aged 22 years at the time of accident and hence, the

appellants are entitled to 40% enhancement towards future prospects and

the multiplier applicable is 18. Since the deceased died as a bachelor,

50% has to be deducted towards personal expenses. Thus, the loss of

income would be Rs. 17,000/- + Rs. 6,800/- (40% of Rs. 17,000/-) = Rs.

23,800/- x 12 x 18 x 1/2 = Rs. 25,70,400/-. Further, the loss of

consortium of Rs. 40,000/- awarded by the Tribunal is incorrect and the

same is set aside and the appellants are entitled to Rs. 40,000/- each

under the head loss of love and affection, which comes to Rs. 1,20,000/-.

The award under the other heads are just and the same are confirmed. It

is well settled that the Tribunal and the Courts have to award just

compensation. Though the claimants have claimed lesser compensation,

the Courts have power to grant just compensation more than the amount

claimed by the claimants. Thus, the award of the Tribunal is modified as

follows;

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                                                                                    CMA No. 1755 / 2023
                     ld




                           S.             Description    Amount      Amount            Award
                           No                           awarded by awarded by       confirmed or
                                                         Tribunal   this Court      enhanced or
                                                           (Rs)        (Rs)           granted
                           1. Loss of Income                7,56,000   25,70,400      Enhanced
                           2. Loss of Estate                  15,000      15,000      Confirmed
                           3. Funeral Expenses                15,000      15,000      Confirmed
                           4. Loss of Consortium              40,000          ---      Set aside
                          5.      Loss of Love and               ---     1,20,000      Granted
                                  Affection
                                  Total                     8,26,000    27,20,400    Enhanced by
                                                                                    Rs. 18,94,400/-

12. With the above modification, this Civil Miscellaneous Appeal

is allowed and the compensation awarded by the Tribunal at Rs.

8,26,000/- is hereby enhanced to Rs.27,20,400/- 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 second respondent 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, if not already deposited. On such deposit, the first appellant is

permitted to withdraw Rs. 15,00,000/- and the second and third

appellants are permitted to withdraw Rs. 6,10,200/- each along with

proportionate interest and costs, less the amount if any, already https://www.mhc.tn.gov.in/judis