Madras High Court

B.Baby vs The Joint Director-Health ... on 30 August, 2023

                                                                                  C.M.A. No.1640 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 30.08.2023

                                                          CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                C.M.A.No.1640 of 2023

                  1.B.Baby
                  2.D.Malathy
                  3.B.Iyyappan
                  4.B.Sathish Kumar                                                  ... Appellants

                                                             Vs.

                  1.The Joint Director-Health Services,
                    C/o. G.V.K.EMRI, 1st Floor, EMCC
                    DMC Campus, West Teynampet,
                    Anna Salai, Chennai – 600 006.

                  2.National Insurance Co.Ltd.,
                    Regina Mansion,
                    No. 46, Moore Street,
                    Parry's Chennai – 600 001.                                     ... Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                  Vehicles Act,         1988,   against    the   judgment   and   decree   made       in
                  M.C.O.P.No.3947 of 2018 on the filed on the Motor Accident Claims
                  Tribunal / (II Court of Small Causes, Chennai) dated 09.03.2022.


                  1/9



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                                                                                C.M.A. No.1640 of 2023



                                        For Appellants    : Mrs. Ramya V.Rao

                                        For Respondents : Mr. Rathana Thara
                                                          R1 – Ex parte

                                                  JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellants

challenging the quantum of compensation granted by the Tribunal in the

award dated 09.03.2022, made in M.C.O.P. No.3947 of 2018 on the file of the

Motor Accident Claims Tribunal, II Court of Small Causes, Chennai.

2. The appellants filed M.C.O.P. No.3947 of 20118 on the file of the

Motor Accident Claims Tribunal, II Court of Small Causes, Chennai claiming

a sum of Rs.20,00,000/- as compensation for the death of one Boopathi, who

died in the accident that took place on 31.03.2018.

3. According to the appellants, on 31.03.2018 at about 10.45 am, while

the deceased Boopathi was riding the motorcycle bearing Registration

No.TN-05-BK-4737 proceeding on the G.N.T. Salai, Thattankulam sali

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junction, Madhavaram, an ambulance vehicle bearing registration No.TN-20-

G-2085 proceeding in the same direction, tried to overtake motorcycle, hit

behind the motorcycle and caused the accident. Due to the impact, the

deceased Boopathi sustained grievous injuries and died on the spot. Hence,

the appellants filed claim petition claiming compensation against the

respondents.

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

5. The second respondent filed a counter statement denying all the

averments made by the appellants in the claim petition. According to the

second respondent, the deceased Boopathi rode the motorcycle in a rash and

negligent manner and invited the accident; and in any case the compensation

claimed by the appellants is excessive and prayed for dismissal of the claim

petition.

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6. The 1st appellant examined herself as PW1 and one Yogeswaran, eye-

witness as PW2 and marked Ex.P.1 to Ex.P.9. On behalf of the second

respondent / Insurance Company, one Sampath was examined as RW.1 and

one document was marked as Ex.R1.

7. The Tribunal after considering the evidence and documents filed on

either side, held that the accident occurred due to the rash and negligent

driving by the driver of the first respondent; and directed the second

respondent to pay a sum of Rs.8,31,500/- as compensation to the appellants.

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

present appeal seeking enhancement of compensation.

9. The learned counsel for the appellants submitted that the

compensation awarded by the Tribunal is meagre, that the Tribunal had fixed

a very low monthly notional income of Rs.12,000/- per month, although the

appellants had proved that the deceased was doing Real Estate business and

earning Rs.50,000 per month. The learned counsel further submitted that

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though compensation under the head “loss of love and affection” was

awarded for the first appellant, the compensation under the said head for

appellants 2 to 4 was not awarded and hence, prayed for enhancement of

compensation.

10. Since the first respondent remained ex parte before the Tribunal,

the learned counsel for the appellants prayed for dispensing with notice to the

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

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

that the award of the Tribunal is just and reasonable and no interference is

called for. Hence, prayed for dismissal of the appeal.

12. On perusal of the records, this Court finds that PW.1, who is the

wife of the deceased had stated that the deceased was working as a Real

Estate agent. However, no documentary evidence was produced to prove the

income of the deceased. Considering the age, avocation and the year of

accident, this court of the view that it would be just and reasonable to fix

https://www.mhc.tn.gov.in/judis C.M.A. No.1640 of 2023

Rs.14,000/- as monthly notional income of the deceased. Though the

claimants stated that the deceased was aged 58 years, the Tribunal on

appreciation of evidence held that the age of the deceased has to be reckoned

as 63 years based on Ex.P5, the driving license of the deceased. The said

finding of the Tribunal cannot be faulted. Thus, the award of compensation

under the head loss of dependency is calculated as follows: -

Rs.14,000x12x7x3/4 = Rs.8,82,000/-

The Tribunal had not awarded any compensation towards loss of love and

affection to the appellants 2 to 4, who are the children of the deceased.

Hence, a sum of Rs.40,000/- each to the appellants 2 to 4 is awarded towards

loss of love and affection. Further, the award of Rs.44,000/- to the first

appellant is reduced to Rs.40,000/-. Thus, the award under the head loss of

love and affection is enhanced to Rs.1,60,000/-. Rs.16,500/- awarded by the

Tribunal towards funeral expenses is reduced to Rs.15,000/-. 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.8,31,500/- to Rs.10,72,000/-,

break-up is as follows: -






https://www.mhc.tn.gov.in/judis
                                                                                   C.M.A. No.1640 of 2023




                         Sl. Description                Amount        Amount           Award
                         No                            awarded by   awarded by      confirmed or
                                                        Tribunal     this Court     enhanced or
                                                          (Rs)          (Rs)          granted
                         1.       Loss of dependency   7,56,000/-    8,82,000/-       Enhanced
                         2.       Loss of estate        15,000/-      15,000/-       Confirmed
                         3.       Loss of love and      44,000/-     1,60,000/-       Enhanced
                                  affection                         (Rs.40,000/-
                                                                     each to the
                                                                     appellants)
                         4.       Funeral expenses      16,500/-     15,000/-         Reduced
                                         Total         8,31,500/-   10,72,000/-      Enhanced
                                                                                   by Rs.2,40,500/-

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

partly allowed and the compensation awarded by the Tribunal at

Rs.8,31,500/- is hereby enhanced to Rs.10,72,000/- 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 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 a receipt of copy of this Judgment.

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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.