Madras High Court

A.Jospin Geetha @ Geetha vs Liberty Videocon General ... on 6 June, 2023

    2023/MHC/2476




                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 06.06.2023

                                                     CORAM:

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                         C.M.A(MD)No.702 of 2022

                     1.A.Jospin Geetha @ Geetha

                     2.A.Kulanthai Yesudhas

                     3.A.Jeya Priyanka                   :Appellants/Petitioners

                                              /vs/


                     T.Subramanian(died)

                     1.Liberty Videocon General Insurance Company Limited,
                       10th Floor, Tower A,
                       Peninsula Business Park,
                       GanapatraKadam Marg Lower Parel,
                       Delisle Road,
                       Mumbai 4000 013.

                     2.S.Muniyasaraswathy               :Respondents/Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act against the judgment and decree made in
                     M.C.O.P.No.390 of 2017, dated 20.4.2022, on the file of the Motor
                     Accidents Claims Tribunal(Principal District Judge), Thoothukudi.


                                  For Appellants        :Mr.I.Robert Chandrakumar

                                  For Respondent-1      :Mr.V.Sakthivel

                                  For Respondent-2      :Mr.N.Ramesh Arumugam


                     1/9
https://www.mhc.tn.gov.in/judis
                                                     JUDGMENT
                                                     *************

This Civil Miscellaneous Appeal has been filed by the

claimants seeking enhancement of compensation.

2.The parties are referred to herein as per their ranking

before the Tribunal.

3.The deceased Arul Sahaya Kennady @ Kennady, aged

about 50 years, on 4.9.2017 while he was proceeding in his bicycle

on the left side of Thoothukudi South Beach Road from south to

north, the first respondent drove his bike bearing Registration No.

TN 72 AJ 7275 in the same direction on the said road in a rash

and negligent manner and dashed against the deceased from his

behind. As a result, the deceased Kennady sustained multiple

grievous injuries and rushed to the hospital and he died on

4.9.2017. The second respondent is the insurer of the first

respondent vehicle. Hence the wife and children claimed

compensation.

4.The second respondent took a stand that the first

respondent has no licence at the time of accident and the accident

took place due to the negligence on the part of the first respondent.

https://www.mhc.tn.gov.in/judis The third respondent legal heirs of the first respondent took a

stand that he has spent some amount towards the medical

expenses. Hence he disputed the claim.

5.Before the Tribunal, on the side of the Petitioners, P.W.1

and P.W.2 are examined and Ex.P1 to Ex.P12 were marked. On the

side of the respondents, R.W.1 and R.W.2 were examined and Ex.R1

to Ex.R4 were marked.

6.The Tribunal, after analyzing the evidence on record, found

that the first respondent was rash and negligent in driving the

motor cycle. However, the Tribunal fixed the Annual income at Rs.

30,000/- per year and deducted one third of the income towards the

personal expenditure of the deceased and awarded the

compensation as follows:

1.Loss of dependency - Rs.2,60,000/-

                     2.Spousal consortium to the
                       first Petitioner        -Rs.44,000/-
                     3.Loss of Estate           -Rs.16,500/-
                     4.Funeral expenses        -Rs.16,500/-
                                                -------------------
                              total              -Rs3,37,000/-
                                                --------------------

Challenging the same, the present Civil Miscellaneous Appeal has

been filed seeking enhancement of compensation.

https://www.mhc.tn.gov.in/judis

7.The learned counsel for the appellants would subit that the

deceased was a Loadman, aged about 50 years at the time of

accident and he was earning substantial amount ie., more than Rs.

12,000/- and even if Minimum Wages Act is applied, he would have

easily earn a sum of Rs.12,000/-p.m and hence prayed for

enhancement of compensation.

8.The learned counsel for the Insurance Company fairly

submitted that the notional income fixed by the Tribunal is very

low and a reasonable amount has to be fixed as notional income of

the deceased.

9.In the light of the above facts, now the point that arose for

consideration is as follows:

1.Whether the Tribunal is right in fixing the notional income

of the deceased at 30,000/-per year?

10.Negligence on the part of the first respondent is not

disputed. Except the Insurance Company, others have not contested

the matter before this Court. The age of the deceased is 50 years

at the time of accident, which has been established on record as

https://www.mhc.tn.gov.in/judis per the Aadhaar Card. However, the trial Court has fixed the

notional income at Rs.30,000/- per year. It is relevant to note that

on 4.9.2017, the deceased died, which is not disputed. It is to be

noted that even a Loadman now a days are able to earn more than

Rs.400/- per day and even if Minimum Wages Act is applied, the

deceased would have earned Rs.12,000/- per month. Therefore the

Tribunal fixing notional income at Rs.30,000/- per year is very low

and without any basis. Therefore, this Court is of the view that to

arrive at a just and reasonable compensation to the legal heirs of

the deceased, fixing the notional income at Rs.12,000/- per month

seems to be reasonable and accordingly fixed the notional income

at Rs.12,000/- per month. If 25% is added towards the future

prospects of the deceased, the monthly income would be Rs.

15,000/- and if one third of the amount is deducted towards the

personal income of the deceased, the monthly income comes to Rs.

10,000/- and the proper multiplier for the age group of the

deceased is '13' and if the same is applied, the loss of dependency

comes to Rs.15,60,000/-(Rs.10,000/-x 12 x 13). Further, the

Tribunal has not awarded any amount towards the loss of love and

affection to the Petitioners 2 and 3 and hence this Court awards a

sum of Rs.40,000/-each to the Petitioners 2 and 3, which comes to

Rs.80,000/-.The other heads ie.,Spousal consortium to the first

https://www.mhc.tn.gov.in/judis Petitioner-wife at Rs.44,000/-, loss of estate at Rs.16,500/- and

funeral expenses at Rs.16,500/- are confirmed and thus the

compensation is arrived as follows:

S.No Name of the Awarded by Awarded by Remarks heads the Tribunal this Court 1 For loss of Rs. Rs. enhanced dependency 2,60,000/- 15,60,000/-

2 Spousal Rs.44,000/- Rs.44,000/- same consortium to the first Petitioner/wife 3 For loss of estate Rs.16,500/- Rs.16,500/- same 4 For funeral Rs.16,500/- Rs.16,500/- same expenses

5. For loss of love ---- Rs.80,000/- Newly and affection to (Rs.40,000/- awarded the Petitioners 2 each) and 3 6 Total Rs.3,37,000- Rs. enhanced 17,17,000/-

Thus the total compensation payable to the Petitioners is Rs.

17,17,000/- rounded off to Rs.17,20,000/- with interest at the rate

of 7.5%p.a from the date of claim petition till the date of

realization.

11.In the result,the Civil Miscellaneous Appeal is allowed

enhancing the compensation from Rs.3,37,000/- to Rs.17,20,000/-

https://www.mhc.tn.gov.in/judis with interest at the rate of 7.5%p.a., from the date of claim petition

till the date of realization. The first respondent Insurance Company

is directed to deposit the above said modified enhanced award

amount with accrued interest and costs, less the award amount

already deposited,if any, to the credit of claim petition before the

Tribunal, within a period of eight weeks from the date of receipt of