Madras High Court
Lakshmi vs P. Aravind on 7 February, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD
CMA.No.1724 of 2018
and CMP.No.950 of 2018
1. Lakshmi
2. Nallaiah
3. Vijaya
4. Annadurai ...Appellants
Vs.
1. P. Aravind
2. United India Insurance Co Ltd.,
Sillingi Building, No.134, Greams Road,
Thousand Lights,
Chennai 600 006. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the award and decree dated 30.07.2013
made in M.C.O.P.No.5 of 2012 on the file of the Motor Accident Claims
Tribunal, (Chief Small Causes Court), Chennai.
For Appellants : Mr.K. Varadha Kamaraj
For Respondents : M/s.D.Baskaran for R2
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
This Civil Miscellaneous Appeal has been filed to enhance the
compensation amount awarded in the judgment and decree dated 30.07.2013
made in M.C.O.P.No.5 of 2012 on the file of Motor Accident Claims
Tribunal (Chief Small Causes Court), Chennai with interest and costs by
allowing this Civil Miscellaneous Appeal.
2. The facts of the case in a nutshell:
On 14.04.2011 at about 19:20 hrs while the deceased was crossing the
college road near Sankara Nethralaya Hospital with great care and caution,
the motor cycle bearing Reg.No.TN-01-AP-3219 was ridden by its rider in a
rash and negligent manner and hit against the deceased and due to that the
deceased sustained injuries and succumbed to death on the way to the
hospital leaving behind the appellants/claimants as his legal heirs. A case has
been registered in Cr.No.149/2011 by R4 Soundara Pandiyanar Angadi Police
Station. The deceased was aged 53 years and he was working as Pumpman in
M/s.Kathirvel Enterprises (Indian Oil Corporation) Petrol Bunk, Chennai and
earned Rs.8,000/- per month and also working as night watchman in
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bungalow at college road and earned Rs.4,500/- per month. The first
appellant/claimant is the wife, 2nd and 4th appellants/claimants are the sons
and 3rd appellant/claimant is the daughter of the deceased. The first
respondent is the owner and the second respondent being the insurer of the
offending vehicle are statutorily and vicariously liable to pay compensation to
the appellants/claimants. Hence, the appellants/claimants have filed the claim
petition claiming compensation for a sum of Rs.11,00,000/- before the
Tribunal.
3. The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to the rash and negligent
driving by the rider of the first respondent's motor cycle bearing Reg.No.TN-
01-AP-3219 and directed the respondents 1 and 2, being the owner and
insurer of the motor cycle jointly or severally to pay a sum of Rs.7,42,180/-
as compensation to the appellants/claimants.
4. Not being satisfied with the amount awarded by the Tribunal, the
appellants/claimants have come out with the present appeal seeking
enhancement of compensation.
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5. The learned counsel for the appellants/claimants submitted that the
claim petition has been filed for the death of one Malaiyandi. Wife, two sons
and daughter are the claimants/appellants. According to the
claimants/appellants, the deceased was working as a Pumpman in a Petrol
Bunk and earned Rs.8,000/- and also worked as a night watchman and earned
Rs.4,500/- p.m. and in all earned Rs.12,500/- p.m. The Tribunal in the
absence of evidence of employer and also salary certificate on a letterhead
has fixed the notional income at Rs.4,500/- added 15% towards future
prospectus, deducted 1/4th towards personal and living expenses and applied
“11” multiplier and thus granted Rs.5,12,325/- towards loss of pecuniary
benefits and Rs.55,000/- under conventional heads and in all granted
Rs.5,67,325/- with 7.5% interest as compensation. He further submitted that
the income fixed by the Tribunal is meager and the award granted under the
head conventional damages is also low. Hence prays for enhancement of
compensation.
6. Per contra, learned counsel for the second respondent/Insurance
Company submitted that the insured has not intimated about the involvement
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of the vehicle in the road accident. The second respondent denies the accident
and also denies that the driver of the offending vehicle bearing Reg.No.TN-
01-AP-3219 was having valid driving licence and the said vehicle was
insured with the second respondent/Insurance Company at the time of
accident. The claimants/appellants should prove the age, occupation and
income of the deceased and also the place, date and time of the accident. The
accident had occurred due to self negligent of the deceased who blindly
crossed the road without noticing the traffic. The accident had happened due
to the contributory negligence of the deceased. He further contended that in
the absence of proof for avocation and income, income fixed by the Tribunal
is just and reasonable. Considering the period of accident, award granted
under the head conventional damages also reasonable. Hence prayed for
dismissal of the appeal.
7. Heard both sides and perused the materials available on record.
8. Considering the year of accident and avocation of the deceased,
notional income may be re-fixed as Rs.7,000/- p.m. and considering the fact
that the deceased was working in an unorganised sector, only 10% future
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prospects warranted in view of Constitution Bench judgment. Thus, the
compensation granted by the Tribunal towards loss of pecuniary benefits is
modified to Rs.7,62,300/- [Rs.7,000/- + 10% - 1/4 th x 12 X 11]. The Tribunal
has awarded a sum of Rs.10,000/- towards loss of consortium to the first
claimant/appellant which is meagre and the same is hereby enhanced to
Rs.40,000/- in view of the judgement in the case of Magma General
Insurance Co.Ltd., Vs. Nanuram @ Chuhru @ Ram & Others reported in
2018 18 SCC 130. Under the head loss of love and affection Rs.25,000/- was
awarded by the Tribunal and the same is enhanced to Rs.40,000/- each to the
claimants/appellants 2 to 4. Likewise, the amount awarded under the heads
Funeral expenses Rs.5,000/- and loss of estate Rs.5,000/- are enhanced to
Rs.15,000/- respectively. Thus, the compensation awarded by the Tribunal
are modified as follows:
S. Compensation awarded Compensation enhanced
Heads
No by the Tribunal (Rs.) by this Court (Rs.)
1 Loss of Pecuniary 5,12,325 7,62,300
benefits (4500+15% - 1/4th (7000+10% - 1/4th x
x12x11 Multiplier) 12x11 Multiplier)
2 Loss of consortium 1st 10,000/- 40,000/-
claimant
3 Loss of love and 25,000/- 1,20,000/-
affection to claimants
2 to 4
4 Funeral expenses 5,000/- 15,000/-
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5 Loss of estate 5,000/- 15,000/-
Total 7,42,180.00 9,52,300.00
9. In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.7,42,180/- is hereby
enhanced to Rs.9,52,300/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The
appellants/claimants are directed to pay the Court fee on the enhanced
amount of compensation now determined by this Court. The respondents are
jointly and severally directed to deposit the enhanced award amount now
determined by this Court, together with interest and costs, less the amount
already deposited, if any, within a period of six weeks from the date of receipt
of a copy of this judgment. On such deposit, the appellants are permitted to
withdraw their share of the enhanced award amount now determined by this
Court, as per the ratio of apportionment fixed by the Tribunal, along with
interest and costs, less the amount if any, already withdrawn by making
necessary applications before the Tribunal. It is made clear that the
appellants/claimants are not entitled to any interest for the delay period on the
amount of Rs.2,10,120/- now enhanced by this Court as per the order of this
Court dated 26.07.2018 made in C.M.P.No.950 of 2018 in
https://www.mhc.tn.gov.in/judis
C.M.A.(SR)No.2210 of 2018. Consequently connected miscellaneous petition
is also closed. No costs.
07.02.2023
dpq
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
https://www.mhc.tn.gov.in/judis
J.SATHYA NARAYANA PRASAD, J.
dpq
To
1.The Chief Small Causes Court,
Chennai.
2. The Section Officer
VR Section.
CMA.No.1724 of 2018
and CMP.No.950 of 2018
07.02.2023
https://www.mhc.tn.gov.in/judis
