Madras High Court
P.Maheswari vs K.S.Kathiravan on 30 August, 2023
CMA No. 1722 / 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.08.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal No. 1722 of 2023
1. P.Maheswari
2. Minor J.Saravanavel
3. Minor J.Keerthivel
(Minor Petitioners rep. by mother) guarding NF P.Maheswari
(the first petitioner herein) ... Appellants
Versus
1. K.S.Kathiravan
2. The Manager,
Cholamandalam MS Gen Insurance Co., Ltd.,
II Floor, Shaw Wallace Street,
154, Thambu Chetty Street,
Parry's Corner,
Chennai – 600 001. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree in M.C.O.P.
No. 43 of 2019 dated 11.01.2023 on the file of the Motor Accident
Claims Tribunal / Sub Court, Panruti.
For Appellants : Ms. Ramya V. Rao
For Respondents : Ms. R.Sreevidhya for R2
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CMA No. 1722 / 2023
R1 – ex parte.
JUDGMENT
The appeal has been filed challenging the award passed by the
Tribunal in M.C.O.P. No. 43 of 2019 dated 11.01.2023.
2.The appellants had filed claim petition seeking compensation
before the Tribunal stating that on 07.01.2019, when the deceased was
riding a motorcycle bearing Registration No. TN 31 BL 5940 in
Kaadampuliyur to Kaatandikuppam Main Road opposite to
Kaadampuliyur TASMAC Shop, a car bearing Registration No. TN 31
AH 8590 driven in a rash and negligent manner dashed his motorcycle
and as a result of which, the deceased sustained severe injuries all over
the body and died.
3.The first respondent remained ex parte before the Tribunal.
4.The second respondent filed counter denying all the averments
made in the claim petition stating that the driver of the car was under the
influence of alcohol and drove the vehicle, which is a breach of policy
condition; that the car was not insured with the second respondent at the
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CMA No. 1722 / 2023
time of the accident and hence, the second respondent is not liable to pay
compensation; and that in any case, the compensation claimed by the
appellants is excessive and prayed for dismissal of the petition.
5.The appellants examined three witnesses on their side PW.1 to
PW.3 and marked Ex.P.1 to Ex.P.13. The second respondent examined
RW1 and marked Ex.R.1 to Ex.R.3.
6.The Tribunal after considering the oral and documentary
evidence found that the accident occurred due to the rash and negligent
driving of the car by the first respondent and awarded a compensation of
Rs. 22,43,900/- to the appellants to be paid by the second respondent at
the first instance and recover the same from the first respondent.
Aggrieved by the said award, the appellants had preferred the instant
appeal.
7.The learned counsel for the appellants submitted that the
Tribunal had fixed a meagre notional income of Rs. 12,000/- though the
appellants had established that the deceased was the driver cum owner of
a Maxicab. Considering the year of the accident, the learned counsel
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CMA No. 1722 / 2023
submitted that higher notional income ought to have been fixed by the
Tribunal. The learned counsel further submitted that the Tribunal
awarded Rs. 33,000/- towards loss of love and affection for the two minor
children instead of Rs. 88,000/-; and that the Tribunal has not awarded
any compensation under the head loss of estate and hence, prayed for
enhancement.
8.The first respondent remained ex parte before the Tribunal and
notice to him has been dispensed with by the order of this Court dated
09.08.2023.
9.The learned counsel for the second respondent, per contra,
submitted that the appellants have not produced any document to prove
the income of the deceased; that therefore the Tribunal had rightly fixed
the notional income at Rs. 12,000/- and prayed for dismissal of the
appeal.
10.The only question that arises for consideration in the instant
appeal is whether the compensation awarded by the Tribunal is just and
reasonable?
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CMA No. 1722 / 2023
11.It is seen that the appellants had examined PW.1 to show that
the deceased owned a Maxicab and was working as driver. However, the
appellants have not produced any document to prove that the deceased
owned a Maxicab. Considering the fact that the accident took place in the
year 2019, age of the deceased and his avocation as a driver, this Court is
of the view that it would be just and reasonable to fix Rs.15,000/- per
month as the notional income. Since the deceased was aged 31 years, the
appellants are entitled to 40% towards future prospects and the multiplier
applicable is 16. Therefore, the loss of income would be Rs. 15,000/- +
Rs. 6,000 (40% future prospects) = Rs. 21,000/- x 12 x 16 x 2/3 = Rs.
26,88,000/-. The award under the head loss and affection is enhanced to
Rs. 88,000/-. The tribunal has not awarded any amount towards loss of
estate. Hence, a sum of Rs. 16,500/- is awarded under the head loss of
estate. The award under the other heads is just and the same are
confirmed. Thus, the award of the Tribunal is modified as follows;
S. Description Amount Amount Award
No awarded by awarded confirmed or
Tribunal by this enhanced or
(Rs) Court (Rs) granted
1. Loss of dependency 21,50,400 26,88,000 Enhanced
2. Loss of love and affection 33,000 88,000 Enhanced
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CMA No. 1722 / 2023
3. Funeral expenses 16,500 16,500 Confirmed
4. Loss of consortium 44,000 44,000 Confirmed
5. Loss of estate --- 16,500 Granted
Total 22,43,900 28,53,000 Enhanced by
Rs. 6,09,100/-
12. With the above modification, this Civil Miscellaneous Appeal
is partly allowed and the compensation awarded by the Tribunal at Rs.
22,43,900/- is hereby enhanced to Rs. 28,53,000/- 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 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. On such deposit, the first appellant is permitted to withdraw
her share of the award amount along with proportionate interest and costs
as per the apportionment fixed by the Tribunal, less the amount if any,
already withdrawn. The shares of the minor second and third appellants
are directed to be deposited in the interest bearing fixed deposit in any of
the Nationalized Banks till they attain majority and the first appellant is
permitted to withdraw the accrued interest once in six months. The
appellants are directed to pay the necessary court fee if any on the
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CMA No. 1722 / 2023
enhanced award amount. No costs.
30.08.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
1. The Motor Accident Claims Tribunal / Sub Court,
Panruti.
2.The Section Officer,
V.R. Section,
High Court of Madras,
Chennai.
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CMA No. 1722 / 2023
SUNDER MOHAN, J
ay
C.M.A. No. 1722 of 2023
Dated: 30.08.2023
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