Naina Mohamed vs T.Shajahan
2023 Latest Caselaw 9956 Mad

                                                                 C.M.A. Nos.1012 & 1014 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 09.08.2023

                                                     CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                          C.M.A.Nos.1012 & 1014 of 2023

                  1. Naina Mohamed
                  2.N.Sahitha                  ...        Appellants in CMA No.1012 of 2023

                  1.M.Seiyathalibathima
                  2.Minor M.Parveen Banu
                  3.Minor M.Syed Farook
                  4.D.Sikkanthar Beevi         ...        Appellants in CMA No.1014 of 2023

                                                        Vs.
                  1.T.Shajahan
                  2.The New India Assurance Company Ltd.,
                  No.1, Bharathi Road, Arcot Woodlands Building,
                  Cuddalore.
                  3.The Managing Director,
                  Tamilnadu State Transport Corporation
                  Byepass Road,
                  Madurai – 625 010.            ...            Respondents in both Appeals

Common Prayer: These Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 25.03.2021 made in M.C.O.P. Nos.1730 & 1729 of 2017 on the file of the

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Special Motor Accident Claims Tribunal, 1st Additional District and Sessions Judge, Cuddalore.

                                         For Appellants    : Ms.Ramya V.Rao
                                         in both appeals

                                         For Respondents : Ms.R.Sreevidhya for R2
                                         in both appeals   Mr.V.Bharathidasan for R3

                                               COMMON JUDGMENT

These Civil Miscellaneous Appeals have been filed by the appellants

challenging the quantum of compensation granted by the Tribunal in the

award dated 25.03.2021 made in M.C.O.P.Nos.1730 & 1729 of 2017 on the

file of Special Motor Accident Claims Tribunal, 1st Additional District and

Sessions Judge, Cuddalore.

2. Both the appeals arise out of the same accident and hence they are

disposed of by this common judgment. Parties are referred to as per their

rank in the claim petitions.

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3. By consent of both the learned counsel appearing for the claimants,

2nd respondent as well as third respondent, both these appeals are taken up for

final hearing at the admission stage itself.

4. The appellants in both the appeals filed the above said claim

petitions claiming compensation for the death of Mansoor and Mobasak who

died in the accident that took place on 24.12.2016.

5. According to the claimants, on the date of accident, when the

deceased Mansoor and Mobasak were travelling in the auto bearing

Regn.No.TN67 AU 2891 belonging to the first respondent on the

Aruppukottai – Virudhunagar main road, near Aruppukottai, the driver of the

bus belonging to the third respondent drove the same in a rash and negligent

manner, hit against the auto and caused the accident. Hence, the claimants

filed the above said claim petitions claiming compensation against the

respondents.

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6. The 2nd respondent filed separate counters in both the claim petitions

and contended that the accident occurred only due to the rash and negligent

driving by the driver of the bus belonging to the third respondent and hence

the 2nd respondent is not liable to pay compensation to the appellants. The 2 nd

respondent also denied the age, occupation and monthly income of the

deceased. The total compensation claimed by the claimants are excessive

and prayed for dismissal of the claim petitions.

7. The third respondent filed separate counters in both the claim

petitions denying all the averments made in the claim petitions including the

manner of accident. It is stated that the driver of the bus drove the same

slowly observing traffic rules. The driver of the auto alone drove the same in

a rash and negligent manner and suddenly turned from left to right and again

right to left side of the road, due to unbalance, dashed against the front left

side of the bus and invited the accident. Hence, the third respondent is not

liable to pay compensation to the claimants. In any event, the compensation

claimed by the claimants are excessive and prayed for dismissal of the appeal.

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8. Before the Tribunal, the claimant in MCOP No.1729 of 2017

examined herself as PW1, claimant in MCOP No.1730 of 2017 was

examined as PW2 and two other witnesses were examined as PW3 & PW4.

Ten documents were marked as Exs.P.1 to P.10. No document was marked

on the side of the respondent however one Sriram was examined as RW1.

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

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

the bus belonging to the third respondent and directed the third respondent to

pay compensation to the claimants. The Tribunal dismissed the claim

petitions as against the respondents 1 & 2. Aggrieved by the said order, the

claimants have preferred the present appeals seeking enhancement of

compensation.

10. The learned counsel appearing for the claimants/appellants in CMA

No.1012 of 2023 submitted that the deceased was working as a driver with

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the 1st respondent and had examined PW1, mother of the deceased to prove

the avocation and income of the deceased. However, the Tribunal had fixed

only a sum of Rs.7500/- per month as notional income of the deceased for the

accident which took place in the year 2016. The compensation awarded by

the Tribunal towards loss of love & affection at Rs.20,000/- each to the

appellants is meagre and prayed for enhancement of compensation.

10(i) The learned counsel appearing for the claimants/appellants in

CMA No.1014 of 2023 submitted that the claimants had established that the

deceased was working as a Manager in Namakkal Transport, Madurai and

had filed Ex.P7-salary certificate and examined PW4, author of the salary

certificate to prove the avocation and income of the deceased. However, the

Tribunal had fixed only a sum of Rs.8500/- per month as notional income of

the deceased which is meagre. PW4 in his evidence has deposed that the

deceased was earning Rs.20,000/- per month. Further, the Tribunal had not

awarded compensation towards filial consortium and parental consortium

instead has awarded only a sum of Rs.40,000/- each towards loss of love &

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affection to the claimants 2 to 4 and prayed for enhancement of

compensation.

11. Per contra, the learned counsel appearing for the third respondent in

CMA No.1012 of 2023 submitted that the deceased was an auto driver who

was under the influence of alcool at the time of accident and produced a copy

of the final report wherein the action was dropped as against the driver of the

offending vehicle. The learned counsel further submitted that in the absence

of any documentary evidence to prove the avocation and income of deceased,

the Tribunal was right in fixing the notional income at Rs.7500/- per month.

The compensation awarded by the Tribunal under different heads are also just

and reasonable and prayed for dismissal of the appeal.

11(i) The learned counsel for the third respondent in CMA No.1014 of

2023 contended that no attendance register or salary register has been

produced to prove the avocation of the deceased. Moreover, during cross

examination by the third respondent, PW4 has deposed that the deceased

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Mobasak @ Mubarak Ali is his brother. No document has been produced to

show that he paid salary to his brother. The learned counsel further

submitted that in the facts and circumstance of the case, the Tribunal was

right in fixing the notional income of the deceased at Rs.8500/- which is

reasonable. The compensation awarded by the Tribunal under different heads

are also just and reasonable and prayed for dismissal of the appeal.

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

the second and third respondent and perused the materials available on

record.

13. It is submitted by the learned counsel of either side that the third

respondent had filed an appeal before the Division Bench of this Court in

CMA Nos.1271 & 1272 of 2022 and the same was dismissed by the Division

Bench of this Court at the admission stage itself and no notice was issued to

the claimants.

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14. The only issue involved in both the appeals are whether the amount

of compensation awarded by the Tribunal is just and reasonable.

CMA No.1012 of 2022

15. Though the learned counsel for the third respondent submitted that

criminal case against the offending vehicle was closed as action dropped for

the reason that the postmortem certificate of the deceased in CMA No.1012

of 2022 who drove the auto, revealed that there was presence of ethyl alcohol

in his body, the same was not produced before the Tribunal. The third

respondent has not let in any evidence to prove the contributory negligence

on the part of the deceased. Further the appeal filed by the third respondent

has also been dismissed by the Division Bench of this Court. In such

circumstances, this court cannot take cognizance of the final report now

relied upon by the third respondent, especially for the reason that one cannot

infer contributory negligence merely because the deceased had consumed

alcohol. The third respondent ought to have proved that the deceased was

under the influence of alcohol to establish contributory negligence. Hence,

there is no reason to interfere with the finding of the Tribunal with regard to

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fixing of contributory negligence on the part of the driver of the bus

belonging to the third respondent.

16. As far as quantum of compensation is concerned, it is seen that

though the claimants have not produced any reliable documentary evidence to

prove the income of the deceased, they had examined PW2, mother of the

deceased who in her deposition had stated that the deceased was working as a

driver and was earning Rs.15000/- per month. However, the Tribunal had

fixed the notional income at Rs.7500/- per month which is meagre.

Considering the age, avocation and the year of accident, this court is of the

view that it would be just and reasonable to fix Rs.12,500/- per month as

notional income of the deceased. The deceased was aged 24 years at the time

of accident. The multiplier applicable is 18 and the claimants are entitled to

40% enhancement towards future prospects. Since the deceased died as a

bachelor, 50% has to be deducted towards his personal expenses. Thus, the

compensation towards loss of income is calculated as follows -

12500 + 5000 (12500 x 40%) x 12 x 18 x 50% = Rs.18,90,000/-

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The amounts awarded by the Tribunal towards loss of love & affection is

meagre. Hence, a sum of Rs.40,000/- each is awarded towards loss of love &

affection to the claimants. Since the claimants have not established the

transport expenses, the amount awarded by the Tribunal under the said head

is set side. The Tribunal has not awarded any amount towards loss of estate

and hence a sum of Rs.15,000/- is awarded under the said head. The amounts

awarded by the Tribunal towards funeral expenses is just and reasonable and

hence the same is confirmed. Thus, the compensation awarded by the

Tribunal is modified as follows -

S. No Description Amount awarded Amount Award by Tribunal awarded by this confirmed or (Rs) Court (Rs) enhanced or granted

1. Loss of income 11,34,000/- 18,90,000/- Enhanced

2. Loss of love & affection 20,000/- 80,000/- Enhanced

3. Transport expenses 15,000/- - Set aside

4. Funeral expenses 15,000/- 15,000/- Confirmed

5. Loss of Estate - 15,000/- Granted Total 11,84,000/- 20,00,000/- Enhanced by Rs.8,16,000/-

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CMA No.1014 of 2022

17. It is seen from the award of the Tribunal that the claimants have

marked Ex.P7-salary certificate and examined PW4-the author of the said

salary certificate to prove that the deceased was working as Manager under

PW4. But those documents cannot be the basis to fix the income as the

claimants have not produced the appointment letter, attendance register etc. to

substantiate their case. Further, PW4 is the brother of the deceased. Hence,

only notional income can be fixed. However, the Tribunal had fixed a

meagre sum of Rs.8500/- per month as notional income of the deceased

stating that neither salary register nor attendance register had been produced

by the claimants to prove the income of the deceased which is justifiable.

Considering the age, avocation, number of dependents and the year of

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

sum of Rs.14,000/- per month as notional income of the deceased. The

deceased was aged 37 years at the time of accident. The multiplier applicable

is 15 and the claimants are entitled to 40% enhancement towards future

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prospects. Since there are four dependents, 1/4th has to be deducted towards

personal expenses. Thus, the compensation towards loss of income is

calculated as follows -

14500 + 5600 (12500 x 40%) x 12 x 15 x 50% = Rs.26,46,000/-

The amounts awarded by the Tribunal towards loss of love & affection is

meagre. The claimants 2 to 4 are entitled to a sum of Rs.40,000/- each

towards loss of love & affection. The 1st claimant wife of the deceased is not

entitled to compensation towards loss of love & affection. However, the

amount awarded by the Tribunal towards loss of consortium to the 1st

claimant is confirmed. Since the claimants have not established the transport

expenses, the amount awarded by the Tribunal under the said head is set side.

The Tribunal has not awarded any amount towards loss of estate and hence a

sum of Rs.15,000/- is awarded under the said head. The amounts awarded by

the Tribunal towards funeral expenses is just and reasonable and hence the

same is confirmed. Thus, the compensation awarded by the Tribunal is

modified as follows -

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S. No Description Amount awarded Amount Award by Tribunal awarded by this confirmed or (Rs) Court (Rs) enhanced or granted

1. Loss of income 16,06,500/- 26,46,000/- Enhanced

2. Loss of consortium 40.000/- 40,000/- Confirmed

2. Loss of love & affection 40,000/- 1,20,000/- Enhanced (40000 x 3)

3. Transport expenses 15,000/- - Set aside

4. Funeral expenses 15,000/- 15,000/- Confirmed

5. Loss of Estate - 15,000/- Granted Total 17,16,500/- 28,36,000/- Enhanced by Rs.11,19,500/-

18. In the result -

(a) C.M.A No.1012 of 2023 is partly allowed and the compensation

awarded by the Tribunal at Rs.11,84,000/- is hereby enhanced to

Rs.20,00,000/- together with interest at 7.5% per annum (excluding the

default period, if any) from the date of petition till the date of deposit.

(b) C.M.A No.1014 of 2023 is partly allowed and the compensation

awarded by the Tribunal at Rs.17,16,500/- is hereby enhanced to

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Rs.28,36,000/- together with interest at 7.5% per annum (excluding the

default period, if any) from the date of petition till the date of deposit.

(c) The third respondent / Transport Corporation is directed to deposit

the enhanced award amounts in both the appeals, now determined by this

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

within a period of eight (8) weeks from the date of a receipt of copy of this

Judgment. On such deposit, the claimants in both the appeals are permitted to

withdraw their share of the award amount along with proportionate interest

and costs, less the amount if any, already withdrawn. The

claimants/appellants are directed to pay the necessary Court Fee, if any, on

the enhanced award amounts. No costs.

09.08.2023 rgr Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No

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SUNDER MOHAN, J

rgr

To

1. The 1st Additional District and Sessions Judge, Motor Accident Claims Tribunal, Cuddalore.

2.The Section Officer, VR Section High Court, Madras.

C.M.A. Nos.1012 & 1014 of 2023

Dated: 09.08.2023

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