Madras High Court

Kannammal vs Subramani on 18 July, 2023

CMA No. 2074 / 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18.07.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No. 2074 of 2022
1.Kannammal
2.Kavitha
3.Dhamotharan ... Appellants
Versus

1.Subramani

2.M/s.United India Insurance Co.Ltd.,
Divisional Office,
104-A, Peramanoor Main Road,
Salem. ... Respondents

PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 59 of 1988 seeking to enhance the compensation
amount made in Judgment and decree dated 01.06.2022 made in
M.C.O.P. No. 810 of 2021 on the file of the Motor Accident Claims
Tribunal and Special District Court at Salem by allowing the Civil
Miscellaneous Appeal.

For Appellant : Mr. S.P. Yuvaraj.

For Respondents : Mr. D. Venkatachalam for R2.

No appearance for R1.

https://www.mhc.tn.gov.in/judis
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CMA No. 2074 / 2022

JUDGMENT

The appeal has been filed by the petitioners challenging the

quantum of compensation awarded by the Tribunal in M.C.O.P. No. 810

of 2021 dated 01.06.2022.

2.The appellants / petitioners had filed a claim petition stating that

on 09.04.2021 at about 07.00 hrs, while the deceased was riding his two

wheeler bearing Registration No.TN-34-R-9228 towards Perundurai-

Chennimalai main road, the first respondent being the owner cum driver

of the tractor bearing registration No.TN-34-B-8048, drove the tractor in

a rash and negligent manner in the opposite direction and hit the two

wheeler as a result of which the deceased sustained grievous injuries and

died on 10.04.2021 and thus he is entitled for compensation.

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

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

excessive.

4.The first respondent remained ex-parte before the tribunal. https://www.mhc.tn.gov.in/judis

CMA No. 2074 / 2022

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

Ex.P.1 to Ex.P.10 and Ex.X.1. No witness was examined on the side of

the respondents and no document was marked.

6.The Tribunal after considering the oral and documentary

evidence awarded a compensation of Rs.8,45,000/- to the appellants to be

paid by the respondents. Aggrieved by the said quantum of

compensation, the appellants had preferred the instant appeal.

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

Tribunal has taken the age of the deceased as 55, it is seen that there is no

basis for the same and the compensation awarded is meagre. The

accident took place in the year 2021 and the notional income fixed by the

Tribunal including future prospects at Rs.10,000/- is meagre. The

Tribunal had also erroneously fixed the age of the deceased as above 55

years without any basis and adopted the multiplier '9'; that there is

evidence viz., Ex.P.3 Postmortem certificate, which states that the

deceased was aged about 50 years at the time of the accident. Hence the

Tribunal ought to have accepted the same in the absence of any evidence https://www.mhc.tn.gov.in/judis

CMA No. 2074 / 2022

to the contrary. The award of Rs.20,000/- each to the petitioners towards

loss of love and affection is erroneous and the Tribunal ought to have

awarded Rs.40,000/- each to the appellants 2 and 3 towards loss of

consortium. Further, the Tribunal has not awarded any amount under the

head Loss of estate.

8.Though notice has been served, none has entered appearance on

behalf of the first respondent.

9.The learned counsel for the second respondent per contra

submitted that the appellants have not established the age of the

deceased. The age mentioned in the postmortem certificate cannot be the

basis to determine the age of the deceased. In the absence of any

evidence, the Tribunal was right in fixing the age of the deceased as more

than 55 years. The notional income fixed by the Tribunal as Rs.10,000/-

cannot be faulted in the absence of any evidence produced by the

appellants that he is earning more than the amount fixed by the Tribunal.

The learned counsel further submitted that though the Tribunal has not

awarded any amount towards Loss of consortium, the award of

Rs.60,000/- towards loss of love and affection may be modified. The https://www.mhc.tn.gov.in/judis

CMA No. 2074 / 2022

compensation of Rs.25,000/- awarded under the head Funeral Expenses

is excessive and the same may be reduced.

10.This Court on perusal of the records and on hearing the

submissions of the learned counsels on either side finds that the notional

income fixed by the Tribunal as Rs.10,000/- including future prospects is

meagre. The accident is of the year 2021 and considering the fact that

even the wages for daily wage workers had increased substantially at the

relevant time, this Court is of the view that it would be reasonable to fix

the notional income at Rs.15,000/- for the deceased. The Tribunal had

taken 55 years as the age of the deceased. This Court finds that there is

no basis for taking the age of the deceased as above 55 years. The

appellants have stated that the age of the deceased is 51 and the

postmortem certificate suggest that the age of the deceased is about 50

years. Though the appellants have not established the age of the

deceased by producing other acceptable documents such as aadhar card

etc., in view of the averments made in the claim petition and the age

recorded in the postmortem certificate, this Court considers that the age

of the deceased as 51 at the time of the accident as there is no evidence to

the contrary. Hence, the increase of 10% has to be taken for future https://www.mhc.tn.gov.in/judis

CMA No. 2074 / 2022

prospects. The multiplier '11' has to be adopted. Hence, the loss of

income is modified as follows; Rs.15,000 + 10% = Rs.16,500/- X 12 X

11 X 2/3(deduction towards personal expenses) = Rs.14,52,000/-. The

compensation awarded under the head 'Loss of Love and Affection' at

Rs.60,000/- is erroneous and the same is deleted. Rs.40,000/- each is

awarded to the appellants 2 and 3 towards loss of consortium. The

compensation of Rs.25,000/- towards funeral expenses is reduced to

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

Thus, the compensation awarded by the Tribunal is modified as follows;

                            S. No Description           Amount           Amount      Award
                                                       awarded by        awarded confirmed or
                                                        Tribunal          by this  enhanced or
                                                          (Rs)          Court (Rs)   granted
                            1.        Loss of income        7,20,000     14,52,000     Enhanced
                            2.         Loss of Love           60,000           ---      Deleted
                                      and Affection
                            3.        Loss of                 40,000      1,20,000     Enhanced
                                      consortium
                            4.        Funeral                 25,000       15,000       Reduced
                                      Expenses
                            5.        Loss of Estate              ---      15,000       Granted
                                      Total                 8,45,000     16,02,000   Enhanced by
                                                                                     Rs.7,57,000/-

11. With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

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CMA No. 2074 / 2022

Rs.8,45,000/- is hereby enhanced to Rs.16,02,000/- 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

permitted to withdraw the award amount along with proportionate