Madras High Court
Mr.Balaji vs R.Senthamarai on 2 August, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.08.2023
Coram
The Honourable Mr.Justice SUNDER MOHAN
C.M.A.No.1510 of 2023
1.Mr.Balaji
2.Minor B.Gowtham
rep. by his father Mr.Balaji
...Appellants
Versus
1.R.Senthamarai
2.The Reliance General Insurance Co. Ltd.,
No.6, Hadas Road, Nungambakkam,
Chennai – 600 034.
...Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 praying to enhance the award against the
judgment and decree dated 28.02.2022 and made in M.A.C.T.O.P.No.22 of
2018 on the file of the Special District Court to deal with Motor Accident
Claims Tribunal, No.1, Thiruvallur.
For Appellants : Ms.A.Subadra
For Respondent – 1 : Set Ex-Parte
For Respondent – 2 : Mrs.C.Bhuvanasundari
https://www.mhc.tn.gov.in/judis
JUDGMENT
This Civil Miscellaneous Appeal has been preferred by the
appellants/claimants seeking to enhance the compensation awarded by the
Motor Accident Claims Tribunal No.1, Special District Court, Thiruvallur.
in M.C.O.P.No.22 of 2018 vide judgment and decree dated 28.02.2022.
2. The brief facts of the case are as follows:
On 30.12.2017, at about 12.30 p.m., when one Mrs.P.Manju was
travelling in a TATA SUMO car bearing Registration No.TN 21 AY 5573
belonging to the 1st respondent driven by its driver in Perambakkam to
Poonamallee Road, Mannur Kattu Paguthi in a rash and negligent manner
endangering the public safety, back right tyre of the car was burst, as a
result of which, the car hit a TATA ACE van bearing Registration No.TN
37 CQ 0947 and thereby, the accident had occurred. In the accident, the
said Manju had sustained grievous injuries and hence, she was admitted in
MIOT Hospital for treatment. Despite treatment, she died in MIOT
Hospital on 06.01.2018. Hence, the 1st appellant (husband of deceased
Manju) and 2nd appellant (minor son of deceased Manju) had filed a claim
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petition in M.C.O.P.No.22 of 2018 against the 1st respondent (owner of the
offending vehicle) and 2nd respondent (insurer of the offending vehicle),
claiming a sum of Rs.24,00,000/- as compensation.
3. The 2nd respondent/Insurance Company (insurer of the offending
vehicle) had filed its counter statement denying all the averments made by
the appellants/claimants in the Claim Petition. In the counter statement, it is
stated that the accident occurred only due to the rash and negligent driving
of the driver who drove the TATA ACE van and the deceased Manju had
travelled as a passenger in the said van. Further, it is stated that as per the
FIR, the accident had occurred due to a mechanical defect of TATA SUMO
car. Therefore, the 2nd respondent/Insurance Company is not at all liable to
pay any compensation to the appellants/claimants and the claim petition is
liable to be dismissed.
4. Before the Tribunal, on the side of the appellants/claimants, the
first appellant examined himself as P.W.1 and marked 16 documents as
Exhibits P1 to P16. On the side of the respondents, no witnesses were
examined and no documents were marked as exhibits.
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5. On appreciation of the oral and documentary evidence produced
before it, the Tribunal arrived at the conclusion that the accident had
occurred due to the rash and negligent driving of the driver who drove the
car and hence, it held that 1st respondent (owner of the offending vehicle)
and 2nd respondent (insurer of the offending vehicle) are jointly and
severally liable to pay the compensation to the appellants/claimants and
being the insurer of the offending vehicle, 2nd respondent is vicariously and
statutorily liable to pay the compensation to the appellants/claimants.
Hence, the Tribunal directed the 2nd respondent (insurer of the offending
vehicle) to pay the compensation of Rs.18,92,872/- along with costs and
interest at the rate of 7.5% per annum from the date of petition till the date
of realization, to the appellants/claimants.
6. Aggrieved over the quantum of compensation awarded by the
Tribunal, the appellants/claimants have preferred this appeal before this
Court.
7. Ms.A.Subadra, learned counsel for the appellants/claimants
submitted that while awarding compensation, the Tribunal failed to consider
that the accident took place in the year 2017 and at the time of accident, the
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deceased was 22 years old. She further submitted that although P.W.1 (1 st
appellant) deposed before the Tribunal that his deceased wife Manju was
working as a Tailor and she was earning a sum of Rs.15,000/- as monthly
income, however, the Tribunal had fixed a very meagre amount of
Rs.8,000/- as notional monthly income of the deceased. Therefore, the
learned counsel prayed this Court to enhance the notional monthly income
of the deceased.
8. The 1st respondent remained ex-parte before the Tribunal and the
learned counsel for appellants/claimants made an endorsement to that effect
in the appeal papers.
9. Per Contra, Mrs.C.Bhuvanasundari, learned counsel appearing for
the second respondent/Insurance Company submitted that the deceased
Manju was a house wife and she was not doing any job and that the
appellants/claimants did not produce any evidence to prove that the
profession and monthly income of the deceased. Even in the absence of any
income proof, the Tribunal fixed a sum of Rs.8,000/- as notional monthly
income of the deceased, which is just and reasonable and hence, the same
need not to be enhanced.
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10. Heard the learned counsel for the appellants/claimants and the
learned counsel appearing for the second respondent/Insurance Company.
11. The only issue to be decided in this case is that whether the
notional monthly income fixed by the Tribunal is just and reasonable?
12. As rightly pointed out by the learned counsel for the second
respondent/Insurance Company, though P.W.1 (1st appellant) had deposed
before the Tribunal that his deceased wife Manju was working as a Tailor
and she was earning a sum of Rs.15,000/- as monthly income, he did not
produce any documentary evidence to prove the profession and monthly
income of her deceased wife. Since no income proof was produced on the
side of the appellants/claimants, the Tribunal had fixed Rs.8,000/- as
notional monthly income of the deceased. However, this Court feels that
the notional monthly income fixed by the Tribunal is meagre.
13. Considering the year of accident, age and avocation of the
deceased Manju at the time of accident, this Court is of the view that it
would be just and reasonable to fix Rs.12,000/- as notional monthly income
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of the deceased Manju. Thus, by adding 40% towards future prospects of
the deceased, deducting 1/3rd towards personal expenses of the deceased and
applying the multiplier '18', the compensation towards Loss of Earning of
the deceased is calculated as follows:
Rs.12,000 + Rs.4,800 (40% of Rs.12,000) = Rs.16,800/-
Rs.16,800 – Rs.5,600 (1/3rd of Rs.16,800) = Rs.11,200/-
Rs.11,200 x 12 x 18 = Rs.24,19,200/-
14. It is to be noted that the 2nd appellant (minor son of the deceased)
who lost his mother in the accident is entitled to get some compensation
under the head, 'Loss of Love & Affection', but, the Tribunal did not award
any compensation under the said head. Hence, this Court awards a sum of
Rs.40,000/- as compensation under the head, 'Loss of Love & Affection'.
15. The compensation awarded by the Tribunal under all other heads
are just and reasonable and hence, the same are confirmed. The break-up
details of the enhanced compensation are as follows:
Sl.No. Description Amount Amount Award
awarded by awarded by Confirmed or
the Tribunal this Court Enhanced or
(Rs.) (Rs.) Granted
1 Loss of Earning of the
deceased Rs.16,12,872/- Rs.24,19,200/- Enhanced
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Sl.No. Description Amount Amount Award
awarded by awarded by Confirmed or
the Tribunal this Court Enhanced or
(Rs.) (Rs.) Granted
2 Medical Bill Rs.2,00,000/- Rs.2,00,000/- Confirmed
3 Loss of Estate Rs.15,000/- Rs.15,000/- Confirmed
4 Loss of Consortium Rs.40,000/- Rs.40,000/- Confirmed
5 Funeral Expenses Rs.15,000/- Rs.15,000/- Confirmed
6 Transport to Hospital
Expenses Rs.10,000/- Rs.10,000/- Confirmed
7 Loss of Love & Affection ----- Rs.40,000/- Granted
Enhanced by
Total Rs.18,92,872/- Rs.27,39,200/- Rs.8,46,328/-
16. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation of Rs.18,92,872/- awarded by the Tribunal is
enhanced to Rs.27,39,200/- (Rupees Twenty Seven Lakhs Thirty Nine
Thousand and Two Hundred only). Out of the award amount as enhanced
by this Court, the 1st appellant (husband of the deceased) is entitled to 60%
Rs.16,43,520/- and the 2nd appellant (minor son of the deceased) is entitled
to 40% Rs.10,95,680/-. The second respondent/Insurance Company is
directed to deposit the enhanced compensation of Rs.27,39,200/-, after
deducting the amount(s), if any, already deposited, along with interest at
7.5% per annum from the date of petition till the date of deposit (excluding
the default period, if any), to the credit of M.C.O.P.No.22 of 2018, within a
period of six weeks from the date of receipt of a copy of this judgment. On
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such deposit being made, the 1st appellant is permitted to withdraw his share
of the award amount along with proportionate interest and cost, as per the
apportionment ordered by this Court. So far as the share of 2 nd appellant
(minor son of the deceased) is concerned, the second respondent/Insurance
Company shall deposit the same in Fixed Deposit in any one of the
Nationalized Banks, till he attains majority and the interest accrued thereon
shall be withdrawn by his guardian once in three months, directly from the
Bank. The appellants/claimants are directed to pay the necessary Court fee,
if any, on the enhanced award amount, before receiving the copy of this
judgment. No costs.
02.08.2023
mrr
Index : Yes/No
Speaking Order (or) Non-Speaking Order
To
1.The Motor Accident Claims Tribunal No.1,
Special District Court, Thiruvallur
2.The Section Officer,
Vernacular Records Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
SUNDER MOHAN, J.
mrr
C.M.A.No.1510 of 2023
02.08.2023
https://www.mhc.tn.gov.in/judis
