Madras High Court

Britto vs Nirmala on 4 July, 2023

                                                                                       C.M.A.No.235 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 04.07.2023

                                                             CORAM

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                    C.M.A.No.235 of 2022
                    1.Britto
                    2.Lucia                                                           ... Appellants
                                                                    Vs
                    1.Nirmala

                    2.HDFC ERGO General Insurance Company LTd.,
                      (The L&T Insurance)
                      RR Tower II,
                     2nd Floor No.94/ 95
                     TVK Industrial Estate, Guindy, Chennai - 32.                    ... Respondents
                    (vide Court ORder dated 08.06.2023 made in
                    C.M.P.No.12762/ 2022 in C.M.A.No.235 of 2022)

                    PRAYER:- This Civil Miscellaneous Appeal has been filed under Section
                    173 of Motor Vehicles Act, 1988 against the decree and judgment dated
                    15.10.2020 made in M.C.O.P.No.518 of 2014 on the file of Motor Accident
                    Claims Tribunal, (II Additional District and Sessions Judge), Tiruvallur,
                    Poonamallee.

                                           For Appellant            : Mr.Mr.K.Varadha Kamaraj

                                           For Respondents : Mr.E.Chandru for R1
                                                             Mr.K.Vinodh for R2


                    1/9



https://www.mhc.tn.gov.in/judis
                                                                                      C.M.A.No.235 of 2022


                                                        JUDGMENT

This Civil Miscellaneous Appeal has been filed by the parents of the

deceased, who are the claimants, challenging the order dated 15.10.2020

made in M.C.O.P.No.518 of 2014 on the file of Motor Accident Claims

Tribunal, (II Additional District and Sessions Judge), Tiruvallur,

Poonamallee.

2. It is the case of the claimants that the 1st respondent, driver of the

car bearing Registration No.TN10 AL 0183 came in a rash and negligent

manner and hit the deceased, who was crossing the 100 ft. road. As a result

of which the deceased sustained head injuries and succumbed to the said

injuries.

3. The 2nd respondent herein had filed a counter stating that the

deceased had crossed the road in a negligent manner and the driver of the

vehicle was not liable for negligence. The 2nd respondent further stated that

the claim made by the claimants is excessive and cannot be awarded.

https://www.mhc.tn.gov.in/judis C.M.A.No.235 of 2022

4. The first respondent, who is the owner of the vehicle, remained ex-

parte before the Tribunal and hence, the learned counsel for the appellant

has made an endorsement to dispense with the notice to the first

respondent.

5. Before the Tribunal, the appellants examined the 1st appellant and

an eye witness as PW1 and PW2 and marked exhibits P1 to P10. On the

side of the respondents neither oral nor documentary evidence was

adduced.

6.The Tribunal after considering the evidence on record, held that the

claimants are entitled to a compensation of Rs.14,39,600/- (Rupees

Fourteen Lakhs Thirty Nine Thousand and Six Hundred only) under

various heads.

7.The learned counsel for the appellants submitted that the Tribunal

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rightly held that the 1st respondent was guilty of negligence and the 2nd

respondent liable for payment of compensation; that the son of the

claimants was a second year M.B.A. student and had had a very bright

future; that however, the Tribunal without considering his qualification and

the fact that he was pursuing M.B.A, had taken a meagre notional income

of Rs.8,000/- p.m. (Rupees Eight Thousand only); and that the Tribunal

ought to have fixed Rs.15,000/- p.m. as the notional income considering the

educational background of the deceased.

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

that the amount Awarded by the Tribunal is just and need not be interfered

with. The notional income of Rs.8,000/- (Rupees Eight Thousand only)

fixed by the Tribunal was reasonable, as the son of the claimants was not in

employment. Further, the learned counsel submitted that the compensation

under the head loss of affection is contrary to the dictum of the Hon'ble

Apex Court reported in 2009 (2) TNMAC 1 SC (Sarala Verma Vs. Delhi

Transport Corporation) and National Insurance Company Limited Vs

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Pranay Sethi and Ors., reported in reported in 2017 (2) TNMAC 609 (SC).

The amount of compensation awarded at Rs.1,00,000/- each to the

claimants is excessive and the Tribunal ought to have awarded only

Rs.40,000/- each as per the above decisions.

9.This Court finds that the Tribunal held that the 1st respondent is

guilty of negligence. The claimants had examined the 1st appellant as PW1

and an eye witness as PW2. The respondent have not let in any evidence

contrary to the said evidence. Hence, the Tribunal had rightly concluded

that the 1st respondent was guilty of negligence and the 2nd respondent was

liable to pay the compensation. In any case the Insurance Company has not

challenged the finding on negligence.

10.As regards quantum, it is that admitted case that the deceased was

a B.B.A. Graduate and was pursuing his M.B.A. degree. The accident took

place in the year, 2014. This Court finds that the notional income adopted

for the deceased at Rs.8,000/- p.m. is meagre. Considering the year of

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accident and the educational background and the fact that the deceased

would have had a bright future, this Court is of the view that it would be

reasonable to fix the notional income at Rs.12,000/- (Rupees Twelve

Thousand only) per month. The deceased was aged 21 years at the time of

accident and hence, the future prospects has to be calculated at 40%. The

deceased was a bachelor at the time of accident and hence, 1/2 has to be

deducted towards personal expenses. Hence, the compensation awarded by

the Tribunal under the head "loss of contribution" is modified as follows:

Rs.18,14,400/- [Rs.16,800 (Rs.12,000+Rs.4,800) X 12 X 18 X ½].

11.As regards the compensation under the head of loss of love and

affection, it is well settled that the claimants are entitled only for

Rs.40,000/- each as per the decision of the Hon'ble Apex Court reported in

2009 (2) TNMAC 1 SC (Sarala Verma Vs. Delhi Transport Corporation)

and affirmed in National Insurance Company Limited Vs Pranay Sethi

and Ors., reported in 2017 (2) TNMAC 609 (SC). Hence, the compensation

under the head of loss of love and affection is reduced to Rs.80,000/-

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(Rupees Eighty Thousand only) from Rs.2,00,000/- (Rupees Two Lakhs

only). The compensation under the other heads namely loss of estate and

funeral expenses are just and reasonable and the same are hereby

confirmed.

12. It is well settled that the Tribunal and the Courts have to award

just compensation. Though the claimants have claimed lesser

compensation, the Courts have power to grant just compensation, more than

the amount claimed by the claimants. Thus, the compensation awarded by

the Tribunal is modified as follows:

                                                       Amount                             Award
                                                                       Amount
                     Sl.N                           awarded by the                     confirmed or
                                  Description                        awarded by
                      o.                              Tribunal                         enhanced or
                                                                   this Court (Rs)
                                                        (Rs)                             granted
                       1.    Loss of contribution         12,09,600    18,14,400/-       enhanced
                             to the family
                      2.     Loss of love and            2,00,000/-         80,000/-      reduced
                             affection
                      3.     Loss of Estate                15,000/-         15,000/-    confirmed
                       4.    Funeral Expenses              15,000/-         15,000/-     confirmed
                                     Total                14,39,600      19,24,400       4,48,800






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                                                                                  C.M.A.No.235 of 2022

13. In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation awarded by the Tribunal at Rs.14,39,600/- is hereby

enhanced to Rs.19,24,400/- 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 necessary Court fee, if any, on the

enhanced compensation. The 2nd respondent/Insurance Company is directed

to deposit the modified award amount along 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 respective shares of the award amount along

with proportionate interest and costs, after adjusting the amount if any,

already withdrawn. No costs.