Madras High Court

Kavitha vs Sivakumar on 18 July, 2023

                                                                                    CMA No. 972 / 2022

                                  IN THE HIGH COUROF JUDICATURE AT MADRAS

                                                       DATED: 18.07.2023

                                                            CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                         Civil Miscellaneous Appeal No. 972 of 2022
                     1.Kavitha
                     2.Ponmozhi
                     3.Minor Manirathinam
                     (Rep. by next friend / mother 1st petitioner Kavitha)              ... Appellants
                                                              Versus

                     1.Sivakumar

                     2.ICICI Lombard General Insurance Company Limited,
                       2nd and 3rd floor, Nungambakkam High Road,
                       Chottabhai Centre,
                       Chennai – 600 034.                         ... Respondents

                     PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against the Judgment and Decree in M.C.O.P.
                     No. 600 of 2020 dated 07.02.2022 on the file of the Motor Accident
                     Claims Tribunal, Special District Judge, Salem.


                                  For Appellants        : Mr. R. Navaneetha Krishnan.

                                  For Respondents        : No appearance for R1.

                                                   Mr. M. Jeyaraj for R2.


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                                                                                      CMA No. 972 / 2022




                                            JUDGMENT

The appeal has been filed by the claimants challenging the

quantum of compensation awarded by the Special District Judge, Motor

Accident Claims Tribunal, Salem in M.C.O.P. No. 600 of 2020 dated

07.02.2022.

2.The appellants had filed a claim petition before the Tribunal

stating that on 12.12.2019 at about 07.15 p.m., while the deceased was

riding a two wheeler bearing Registration No.TN-52-B-7854 in

Magundanchavady to Edappady Main Road, a lorry bearing Registration

No.TN-90-D-7213 driven by its driver in a rash and negligent manner in

the opposite direction dashed the two wheeler as a result of which the

deceased sustained fatal injuries and thus, the claimants were entitled for

compensation.

3.The first respondent remained ex-parte before the tribunal.

4.The second respondent filed a counter denying all the averments

made in the claim petition and stated that in any case, the claim was

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CMA No. 972 / 2022

excessive.

5.The appellants examined two witnesses on their side and marked

Ex.P.1 to Ex.P.11 and Ex.X.1. No witness was examined on the side of

the respondents, however, marked Ex.R.1 and Ex.R.2.

6.The Tribunal after considering the oral and documentary

evidence awarded a compensation of Rs.14,69,000/- to the appellants to

be paid by the respondents. Aggrieved by the said quantum of

compensation, the appellants have preferred the instant appeal.

7.The learned counsel for the appellants submitted that the

accident is of the year 2019 and since the deceased was working as a

power loom worker, the notional income fixed by the Tribunal at

Rs.12,000/- is meagre and ought to have fixed a higher amount as

notional income. The Tribunal had also only awarded Rs.60,000/-

towards loss of consortium for the three claimants and they are each

entitled to Rs.40,000/-. Further, the Tribunal has not awarded any

amount under the head 'Loss of Estate'. and prayed for enhancement of

compensation.

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CMA No. 972 / 2022

8.Though notice has been served on the first respondent, non e has

entered appearance on behalf of him.

9.The learned counsel for the second respondent per contra

submitted that since the claimants have not established that the deceased

was working as a power loom worker, notional income taken by the

Tribunal is just and reasonable. As regards the compensation for loss of

consortium, the Tribunal had awarded Rs.20,000/- for each petitioner and

hence, Rs.60,000/- has been awarded. The learned counsel further

submitted that Rs.25,000/- awarded towards Funeral Expenses is

excessive and the claimants are not entitled for the same.

10.This Court on perusal of the award of the Tribunal and on

hearing the counsels on either side finds that the claimants are aggrieved

by the fact that the notional income fixed by the Tribunal was meagre. It

is seen from the evidence of PW1 that the deceased was working in a

power loom. However, no evidence has been produced by the claimants

to establish the income. The deceased was aged 41 years survived by

three dependents at the time of accident. The accident is of the year 2019 https://www.mhc.tn.gov.in/judis

CMA No. 972 / 2022

and the wages of even a daily wage labourer was high then. Considering

the above factors and the cost inflation index, this Court is of the view

that it would be reasonable to fix the notional income as Rs.15,000/-.

The deceased was aged 41 years at the time of the accident and hence

25% has to be added towards future prospects. The multiplier applicable

is '14'. Since there are three dependents, one third of his income has to

be deducted towards his personal expenses. Thus, the compensation

under the head loss of income is modified as follows; Rs.18,750/-

( Rs.15,000 + 25% ) X 14 X 12 X 2/3 = Rs.21,00,000/-. The award

under the head loss of love and affection of Rs.60,000/- is erroneous.

However the claimants 2 and 3 are entitled to a sum of Rs.40,000/- each

under the head 'loss of parental consortium'. Further, the compensation

awarded under the head 'Funeral Expenses' is reduced from Rs.25,000/-

to Rs.15,000/- and a sum of Rs.15,000/- is awarded towards loss of

estate. The compensation awarded by the Tribunal under the head loss of

consortium of Rs.40,000/- to the first petitioner is reasonable and the

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

modified as follows:





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                                                                                         CMA No. 972 / 2022


                            S. No Description             Amount             Amount      Award
                                                         awarded by          awarded confirmed or
                                                          Tribunal            by this  enhanced or
                                                            (Rs)            Court (Rs)   granted
                            1.        Loss of income         13,44,000       21,00,000    Enhanced
                            2.         Loss of Love            60,000              ---     deleted
                                      and Affection
                            3.        Loss of parental                ---      80,000      Granted
                                      consortium
                            4.        Loss of                  40,000          40,000     Confirmed
                                      Consortium
                            5.        Funeral                  25,000          15,000      Reduced
                                      Expenses
                            6.        Loss of Estate                  ---      15,000      Granted
                                      Total                  14,69,000       22,50,000 Enhanced by
                                                                                       Rs.7,81,000/-

11. With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.14,69,000/- is hereby enhanced to Rs.22,50,000/- 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 second respondent / Insurance

Company is directed to deposit the enhanced 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 appellants are

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CMA No. 972 / 2022

permitted to withdraw the award amount along with proportionate