Madras High Court
A.Kavitha vs R.Thamilarasan on 25 August, 2023
C.M.A.No.1727 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.1727 of 2022
1.A.Kavitha
2.A.Sharmila
3.Minor A.Arjun
[Minor represented by Natural
Guradian and Next Friend A.Kavitha,
1st appellant herein.]
Thaiyalnayagi (Died) ..Appellants
Vs.
1.R.Thamilarasan
2.The Divisional Manager
The Oriental Insurance Co. Ltd.,
Opposite to Cuddalore New Town Police Station,
Bharathi Road, Cuddalore – 607 001.
..Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree in
MCOP.No.1371 of 2019 dated 31.03.2022 on the file of the Motor
Accident Claims Tribunal/ (Principal District Judge, Cuddalore).
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For Appellants : Mr.S.Chakravarthi
For Respondents : Mr.S.Senthil Kumar for R2
R1 – No appearance
******
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellants challenging the quantum of compensation granted by the
Tribunal in the award dated 31.03.2022 made in M.C.O.P.No.1371 of
2019 on the file of the Motor Accident Claims Tribunal, (Principal
District Judge), Cuddalore.
2. The appellants filed M.C.O.P.No.1371 of 2019 on the file of
the Motor Accident Claims Tribunal, (Principal District Judge)
Cuddalore, claiming a sum of Rs.75,00,000/- as compensation for the
death of one Arivazhagan @ Arivu, who died in the road accident that
took place on 18.01.2018.
3. The appellants are the wife and children of the deceased.
According to the appellants, on 18.01.2018 at about 7.30 p.m., when the
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C.M.A.No.1727 of 2022
deceased was walking from East to West direction, keeping extreme left,
opposite to Pandanallur New Bus Stand, the 1st respondent's Hero
Passion Pro Motorcycle bearing Reg.No.TN-49-AL-5600 came from
behind at a great speed in a rash and negligent manner and dashed
against the deceased, in which the deceased sustained fatal injuries.
Immediately he was admitted in Anbu Hospital, Kumbakonam and he
was taken for further treatment to KG Multi Speciality Hospital and
Research Centre, Thanjavur and Government Medical College Hospital,
Thanjavur. Inspite of proper treatment being given, he died on
07.02.2018. The deceased being the driver cum owner of the Mahindra
Tourister Maxi Cab and he was engaged on contract basis for
transportation of the school students and being the owner of Ambika
Sweets Stall, he was earning a sum of Rs.1,00,000/- per month. Hence,
the appellants filed a claim petition claiming compensation against the
respondents.
4. The 1st respondent is the owner of the motorcycle and the
2nd respondent is Insurer of the offending vehicle.
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C.M.A.No.1727 of 2022
5. The 1st respondent filed counter statement denying all the
averments made by the appellants in the claim petition and further stated
that the accident had not occurred due to the rash and negligent driving
of his vehicle. He further stated that the deceased had suddenly crossed
the road, due to which accident had occurred and in any case, the claim is
excessive; that even if it is held that the accident took place on account
of his negligent driving, the 2nd respondent as an Insurer of the vehicle is
liable to pay the compensation and prayed for dismissal of the claim
petition.
6. The 2nd respondent filed counter statement denying all the
averments made by the appellants and further stated that there was 2 days
delay in filing the complaint; that the accident occurred only due to the
negligent act of the deceased. The 2nd respondent also denied the age and
avocation of the deceased and stated that the total compensation claimed
by the appellants is excessive and prayed for dismissal of the claim
petition.
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7. Before the Tribunal, the 1st appellant examined herself as
P.W.1, one K.Saranraj, eye witness to the accident as P.W.2 and Usha,
Correspondent of the School in which the deceased was engaged on
contract basis for transportation of the school students as PW3. Fifteen
documents were marked as Exs.P.1 to P.15. The respondents neither
marked any documents nor examined any witness on their side.
8. The Tribunal, after considering the oral and documentary
evidence, held that the accident had occurred due to the negligent riding
by the rider of the motorcycle belonging to the 1st respondent, insured
with the 2nd respondent and directed the 2nd respondent to pay a sum of
Rs.14,52,000/- as compensation.
9. Aggrieved by the said order, the appellants have preferred
the present appeal seeking enhancement of compensation.
10. The learned counsel for the appellants submitted that
though the appellants examined PW3, the Correspondent of the School
who had engaged the deceased on contract basis for transportation of the
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school students, the Tribunal had erroneously rejected the evidence of
PW3 and Exs.P10 and P13. The learned counsel further submitted that
the award under the head loss of love and affection has to be enhanced to
Rs.80,000/- as appellants 2 and 3 would be entitled to Rs.40,000/- each.
11. Though notice has been served on the 1st respondent, he
has not appeared either in person or through counsel.
12. The learned counsel for the 2nd respondent per contra
submitted that the Tribunal had considered the evidence of PW3 and
found that the Certificates, Ex.P10 and Ex.P13 issued by PW3 cannot be
the basis to fix the monthly income of the deceased and that the said
finding is correct and no interference is called for in the award of the
Tribunal.
13. The only question involved in the instant appeal is whether
the quantum of compensation awarded by the Tribunal is just and
reasonable.
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14. On perusal of the records, it is seen that the accident is of
the year 2018. The appellants had examined PW3, the Correspondent of
the School, who had issued ExP13 Income Certificate stating that the
deceased was engaged by the School on contract basis for transportation
of their school students. PW3 had stated that they had been paying
Rs.32,000/- per month to the deceased from 2016 to 2018 for the said
purpose. This Court is of the view that there is no reason to disbelieve
the evidence of PW3 and the Income Certificate, Ex.P13 issued by her.
As per Ex.P13 a sum of Rs.32,000/- per month was paid to the deceased
on contract basis. However, the entire sum cannot be taken as income of
the deceased. The deceased would have certainly incurred expenditure
towards maintenance of the vehicle and for fuel. In the absence of proof
of the exact income earned by the deceased, this Court is of the view that
it would be just and reasonable to fix the notional income at Rs.17,000/-
per month, considering the avocation, year of accident and the evidence
on record in the instant case. The deceased was aged 52 years at the
time of the accident. Hence, the appellants are entitled to 10% towards
future prospects. Thus, the award of compensation under the loss of
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income is calculated as follows:
Rs.17,000/- + 1,700/- (17,000x10%) x 12 x 11 x 2/3 = Rs.16,45,600/-
15. The appellants 2 and 3 are entitled to Rs.40,000/- each
under the head loss of love and affection. The award under the other
heads is just and reasonable and hence the same are confirmed. It is also
seen that the Tribunal has awarded 8% interest, for which this Court is of
the view that the appellants should be entitled to interest at 7.5%. Thus,
the total award amount is modified as follows:
Head Awarded by the Tribunal Amount awarded in the
appeal
Loss of income Rs.11,61,600/- Rs.16,45,600/-
Loss of Love and affection Rs.30,000/- Rs.80,000/-
Funeral Expenses Rs.15,000/- Rs.15,000/-
Loss of Estate Rs.15,000/- Rs.15,000/-
Loss of Consortium Rs.40,000/- Rs.40,000/-
Medical expenses based on Rs.1,90,287/- Rs.1,90,287/-
bills
Total Rs.14,51,887/- Rs.19,85,887/-
16. Accordingly, this Civil Miscellaneous Appeal is partly
allowed enhancing the compensation from Rs.14,51,887/- to
Rs.19,85,887/- together with interest at 7.5% per annum from the date of
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petition till the date of deposit (excluding the default period if any). The
2nd 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 eight (8) weeks from the date of
receipt of a copy of this Judgment. On such deposit, the appellants 1 and
2 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
share of the minor 3rd appellant is directed to be deposited in an Interest
bearing fixed deposit in any Nationalized Bank, till the minor appellant
attains the age of majority. The appellants are directed to pay the
necessary Court Fee, if any, on the enhanced award amount. No costs.
25.08.2023
dsa
Index :Yes/No
Internet :Yes/No
Neutral Citation :Yes/No
Speaking order/Non-Speaking order
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C.M.A.No.1727 of 2022
To
1. The Motor Accident Claims Tribunal,
Principal District Judge, Cuddalore.
2. The Section Officer,
VR Section, High Court, Madras.
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SUNDER MOHAN, J.
dsa
C.M.A.No.1727 of 2022
25.08.2023
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