Madras High Court

Vijayamma vs R.Nagesh on 2 August, 2023

                                                                            C.M.A. No.229 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 02.08.2023

                                                   CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                              C.M.A.No.229 of 2022

                  1.Vijayamma
                  2.Manuja
                  3.Vinaykumar                            ..                         Appellants

                                                       Vs.

                  1.R.Nagesh
                  2.The Branch Manager,
                  The New India Assurance Co.Ltd,
                  Branch Office, No. 2241/4,
                  Giriamma Shambugowda Complex,
                  Church Road, Channapatna,
                  Karnataka State-571501                  ..                       Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                  Vehicles Act, 1988, against the Judgment and Decree dated 09.04.2021 made

                  in M.C.O.P. No.75 of 2020 on the file of the Motor Accident Claims Tribunal

                  and Special district Court for MACT Cases, Krishnagiri.


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https://www.mhc.tn.gov.in/judis
                                                                              C.M.A. No.229 of 2022

                                         For Appellants    : Mr.S.P.Yuvaraj
                                         For Respondents : No appearance for R1
                                                           Ms.R.Rathnathara for R2

                                                    JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellants

challenging the quantum of compensation granted by the Tribunal in the

award dated 09.04.2021, made in M.C.O.P. No.75 of 2020 on the file of the

Motor Accident Claims Tribunal, Special District Court, Krishnagiri.

2.The appellants filed the above claim petition claiming a sum of

Rs.35,00,000/- as compensation for the death of one Jogappa, who died in the

accident that took place on 29.03.2019.

3. According to the appellants, on the date of accident, the deceased

Jogappa was travelling as a loading and unloading coolie alongwith other

coolies to transport paddy bran bags in the lorry bearing Regn.No.KA05 6314

from Sri Balaji Modern Rice Mill situate at Shoolagiri Jammendhar Kottai,

the said Jogappa was tying the bags with the rope on the back side. At that

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time, the driver of the lorry, without noticing the same, drove the same in a

rash and negligent manner on reverse and hit on the said Jogappa, due to

which the said Jogappa sustained head injury and other fatal injuries to his

vital organs. He was immediately taken to Government hospital, Shoolagiri

for treatment however, he died on the way to hospital. Hence, the appellants

filed claim petition claiming compensation against the respondents.

4. The 1st respondent filed counter statement and submitted that the

deceased was a loading and unloading coolie under him. The deceased did

not follow the rules of the road and in a rash and negligent manner, crossed

back side of the lorry which proceeded on the reverse and invited the

accident. Hence, this respondent is not liable to pay compensation. The total

compensation claimed by the appellants are excessive and prayed for

dismissal of the claim petition.

5. The 2nd respondent filed counter and denied all the averments made

by the appellants in the claim petition. The alleged accident has occurred

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under the course of employment and hence the appellants are entitled to get

compensation from only from the owner of the vehicle under the Workmen's

Compensation Act. Hence, the 2nd respondent is not liable to pay

compensation. In any event, the total compensation claimed by the appellants

are excessive and prayed for dismissal of the claim petition.

6. Before the Tribunal, the first appellant examined herself as PW1 and

examined one Thottaporaiyya, eye-witness to the accident as PW2. Eleven

documents were marked as Exs.P1 to P11. Neither document was marked nor

witness was examined on the side of the respondents.

7. The Tribunal, considering the oral and documentary evidence held

that the accident occurred due to rash and negligent driving by the driver of

the lorry belonging to the first respondent and directed the second

respondent, being the insurer of the lorry to pay a sum of Rs.5,42,028/- as

compensation to the appellants.

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

present appeal seeking enhancement of compensation.

9. The learned counsel appearing for the appellants submitted that the

compensation awarded by the Tribunal is meagre. Though the appellants

have claimed that the deceased was aged 49 years at the time of accident, the

Tribunal had erroneously fixed the age of the deceased as 65 years based on

the legal heir certificate, Ex.P11. The learned counsel further submitted that

the wife of the deceased is aged 42 years and therefore it should be presumed

that the age mentioned in the legalheir certificate is wrong. Further, in the

postmortem certificate, the age is mentioned as 54 years. Therefore, the

Tribunal ought to have taken the age of the deceased as as 49 years, as

mentioned in the claim petition. The learned counsel further submitted that

the notional income fixed by the Tribunal at Rs.7000/- per month for the

accident which took place in the year 2019 is very meagre. The deceased was

working as a coolie. The accident had taken place only while the deceased

was unloading the paddy bags from the lorry. In view of the avocation of the

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deceased, the Tribunal ought to have fixed a higher notional income. For the

above reasons, the learned counsel prayed for enhancement of compensation.

10. Per contra, the learned counsel for the second respondent submitted

that the Tribunal had erred in awarding compensation under the Motor

Vehicles Act. The accident had taken place during the course of employment

and the Tribunal ought to have awarded compensation under the Employees

Compensation Act. If the appellants have filed compensation under

Employees Compensation Act, the appellants would have got Rs.6,06,601/-

as compensation. In any event, the Tribunal had rightly taken the age as

shown in the legal heir certificate for the purpose of computing loss of

income. Neither the claim petition nor the postmortem certificate is based on

any record. As regards the notional income, the learned counsel submitted

that Rs.7,000/- is reasonable in the absence of any evidence to prove the

income of the deceased and hence prayed for dismissal of the appeal.

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11. Heard the learned counsel appearing for the appellants as well as

second respondent and perused the materials available on record.

12. The only issue involved in this appeal is whether the amount of

compensation awarded by the Tribunal is just and reasonable.

13. Though it is contended by the learned counsel for the second

respondent that Tribunal ought to have computed the compensation based on

the Workmen's Compensation Act, the second respondent has not preferred

any appeal challenging the finding with regard to applicability of provisions

of the Motor Vehicles Act. Therefore, the only question involved in the

instant appeal is with regard to quantum of compensation awarded by the

Tribunal.

14. Admittedly, Ex.P11 – legalheir certificate produced on the side of

the appellants would show that the deceased was aged 64 years. The age

mentioned in other places i.e. claim petition and postmortem certificate are

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based on the information furnished by the appellants. However, it is seen that

Ex.P11 – legalheir certificate has been issued by the revenue officials and

therefore the same has to be accepted. Hence, the Tribunal had rightly taken

the age as 65 years, as mentioned in the legalheir certificate which cannot be

faulted.

15. In so far as the quantum of compensation is concerned, it is seen

that admittedly the accident took place while the deceased was working as a

coolie and was unloading the paddy bags from the lorry. Therefore, the

avocation of the deceased is proved. Considering the cost inflation index and

the fact that the daily wages of coolie workers are also high at the relevant

point of time, this court is of the view that the notional income of the

deceased can be fixed at Rs.12,000/- per month. The multiplier applicable is

7. Thus, the compensation awarded by the Tribunal towards loss of income is

calculated as follows -

12,000 x 12 x 7 x 2/3 = 6,72,000/-

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The compensation awarded by the Tribunal under other heads are just and

reasonable and hence the same are hereby confirmed. Thus, the

compensation awarded by the Tribunal is modified as follows -

                         Sl. No Description             Amount        Amount             Award
                                                       awarded by   awarded by        confirmed or
                                                        Tribunal     this Court       enhanced or
                                                          (Rs)          (Rs)            granted
                         1.       Loss of dependency   3,92,028/-    6,72,000/-         Enhanced
                         2.       Loss of estate        15,000/-     15,000/-          Confirmed
                         3.       Funeral expenses      15,000/-     15,000/-          Confirmed
                         4.       Loss of consortium   1,20,000/-    1,20,000/-        Confirmed
                                         Total         5,42,028/-    8,22,000/-       Enhanced by
                                                                                      Rs.2,79,972/-

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

partly allowed and the compensation awarded by the Tribunal at

Rs.5,42,028/- is hereby enhanced to Rs.8,22,000/- 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 2nd respondent / Insurance company is

directed to deposit the award amount, now determined by this Court along

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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 appellants are permitted to withdraw the award amount

along with proportionate interest and costs, less the amount if any, already