Madras High Court

G. Bakkiyam vs P. Karthikeyan on 2 August, 2023

                                                                        C.M.A. No.1670 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 02.08.2023

                                                   CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                             C.M.A.No. 1670 of 2023


                  1.G. Bakkiyam
                  2.Minor G. Vignesh
                  3.Minor G. Mohanraj
                  (Minor 2 & 3 rep. By their mother
                  1st appellant)                        ...                       Appellants

                                                        Vs.

                  1.P. Karthikeyan
                  2.The Branch Manager,
                    The New India Assurance Co.Ltd,
                    Thiru-Vi-Ka Street,
                     Villupuram.                    ...                         Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                  Vehicles Act, 1988, against the Judgment and Decree in M.C.O.P. No.32 of
                  2019 dated 16.08.2022 on the file of the Motor Accident Claims Tribunal /
                  Special District Judge, Villupuram.



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                                                                               C.M.A. No.1670 of 2023



                                         For Appellants      : Ms.Ramya V. Rao
                                         For Respondents : Ms.R.Sreevidhya for R2

                                                      JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellants

challenging the quantum of compensation awarded by the Tribunal in

M.C.O.P. No.32 of 2019 dated 16.08.2022.

2. By consent of the learned counsel appearing for the appellant as well

as learned counsel appearing for the 2nd respondent, this appeal is taken up for

final hearing at the admission stage itself.

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

Rs.30,00,000/- as compensation for the death of one Gunasekar, who died in

the accident that took place on 02.05.2018.

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4. According to the appellants, on the date of accident, when the

deceased Gunasekar was riding his tyre cart towards vadakkunemilli, keeping

extreme left to Tirukoilur to TV Nallur Salai, near Kuppusamy Casuarina

Thoppe, Andarayanallur, the driver of the Multi Axile goods vehicle bearing

Regn.No.TN25 BD 8566, belonging to the 1st respondent came from

Tiruvennainallur to Tirukoilur direction in a rash and negligent manner

behind the deceased and without sounding the horn, hit behind the deceased.

In the accident, the said Gunasekar sustained fatal injuries and died on the

spot. Hence, the appellants filed claim petition claiming compensation.

5. The 1st respondent remained exparte before the Tribunal.

6. The 2nd respondent filed counter statement and denied all the

averments made by the appellants in the claim petition. According to the 2nd

respondent, the accident occurred only due to the negligent act of the

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deceased who did not have any reflector for caution or any battery operated

lamp in is tyre cart in the night and thus invited the accident. In any event,

the total compensation claimed by the appellants are excessive and prayed

for dismissal of the claim petition.

7. Before the Tribunal, the 1st appellant examined herself as PW1,

claimant in other MCOP No.327 of 2021 was examined as PW2, one

Samikannu, eye witness to the accident was examined as PW3. Fourteen

documents were marked Exs.P.1 to P.14. Neither document was marked nor

witness was examined on the side of the respondents.

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

the side of the appellants held that the accident occurred due to the rash and

negligent driving by the driver of the vehicle belonging to the first respondent

and directed the second respondent/insurance company being the insurer of

the vehicle to pay a sum of Rs.19,42,000/- as compensation to the appellants.

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9. Challenging the quantum of compensation awarded by the Tribunal,

the appellants have preferred the present appeal seeking enhancement of

compensation.

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

amount of compensation awarded by the Tribunal is meagre. Though the

appellants have established the avocation of the deceased, the Tribunal had

taken the notional income of the deceased as Rs.10,000/- per month for the

accident which took place in the year 2018 which is meagre. Considering the

avocation, the Tribunal ought to have fixed a higher notional income and

prayed for enhancement of compensation.

11. The learned counsel for the 2nd respondent, per contra, submitted

that the appellants have not substantiated their claim to show that the

deceased was earning a sum of Rs.25,000/- per month. In such

circumstances, the Tribunal had rightly fixed notional income of the deceased

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at Rs.10,000/- which is not meagre. The compensation awarded under the

other heads are also just and reasonable and hence prayed for dismissing the

appeal.

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

2nd respondent and perused the materials available on record. Notice to the

first respondent has been dispensed with vide order of this court dated

19.06.2023in CMP No.11601 of 2023 in CMA SR No.68575 of 2023.

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

compensation awarded by the Tribunal is just and reasonable.

14. From the award of the Tribunal, it is seen that the appellants have

marked Ex.P8-Identity card of the deceased, issued by the Association of

Bullock Cart Workers. It is the case of the appellants that the deceased

owned a bullock cart and was earning Rs.25,000/- per month. However, they

have not produced any document to substantiate their claim. Considering the

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fact that at the time of accident, the deceased was owning a bullock cart, the

year of accident and the cost inflation index, this court is of the view that it

would be just and reasonable to fix the notional income of the deceased at

Rs.14,000/- per month. The deceased was aged 38 years at the time of

accident and therefore, the appellants are entitled to increase of 40% towards

future prospects. The multiplier applicable is 16. Since there are three

dependants of the deceased, 1/3rd has to be deducted towards personal

expenses. Thus, the compensation awarded by the Tribunal under the head

loss of income is modified as follows -

Rs.14,000 + 5600 (14000 x 40%) x 12 x 16 x 2/3 = Rs.25,08,800/-

15. The compensation awarded by the Tribunal under other heads are

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

compensation awarded by the Tribunal is enhanced from Rs.19,42,000/- to

Rs.26,58,800/-, break-up as follows -





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                                                                               C.M.A. No.1670 of 2023

                         Sl. No Description           Amount         Amount           Award
                                                     awarded by    awarded by      confirmed or
                                                      Tribunal      this Court     enhanced or
                                                        (Rs)           (Rs)          granted
                         1.       Loss of income     17,92,000/-   25,08,800/-      Enhanced
                         2.       Funeral expenses     15,000/-     15,000/-        Confirmed
                         3.       Damages to           15,000/-     15,000/-        Confirmed
                                  clothes
                         4.       Loss of love &      1,20,000/-    1,20,000/-      Confirmed
                                  affection
                                        Total        19,42,000/-   26,58,800/-     Enhanced by
                                                                                   Rs.7,16,800/-

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

partly allowed and the compensation awarded by the Tribunal at

Rs.19,42,000/- is hereby enhanced to Rs.26,58,800/- 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

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 1st appellant is permitted to withdraw her share of the

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award amount along with proportionate interest and costs, less the amount if