Madras High Court
Kothandaraman vs Rajasekar on 13 June, 2023
C.M.A.NoS.2210& 2218 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.06.2023
CORAM
THE HON'BLE MRS. JUSTICE J.NISHA BANU
AND
THE HON'BLE MR. JUSTICE D.BHARATHACHAKRAVARTHY
C.M.A.Nos.2210 & 2218 of 2021
1. Kothandaraman
2. Shobana ... Appellants in both the Appeals
Vs.
1. Rajasekar
2. The New India Assurance Co. Ltd.,
Motor Third Party Claims
No.232, Bombay Mutual Building,
6th Floor, N.S.C.Boase Road,
Chennai - 600 001. ..Respondents in both the Appeals
Civil Miscellaneous Appeal filed under Section 19 of the Family
Court Act,1984 against the judgment and decree dated 08.02.2021 and
made in M.A.C.T.O.P.Nos.6253 & 6250/2018 respectively on the file of
the Motor Accident Claims Tribunal, Chief Judge, Court of Small Causes,
Chennai.
For Appellants : Mr.F.Terry Chella Raja
For Respondents : Mr.K.Elango for R2
R1- exparte
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C.M.A.NoS.2210& 2218 of 2021
COMMON JUDGMENT
These two Civil Miscellaneous Appeals arise out of the same
accident and are taken up for disposal by way of this common judgment.
2. Two persons, viz., Jamuna, the mother and Kamalesh, the son,
died in the same accident. The two Original Petitions in
M.C.O.P.Nos.6253/2014 & 6250/2014 were filed by the dependants
namely Kothandaraman who is the husband of Jamuna and father of
Kamalesh and minor Shobana who is the daughter of Jamuna and sister
of Kamalesh.
3. By a common award dated 08.02.2021, the Motor Accident
Claims Tribunal, Chennai, had allowed the petitions by awarding a total
sum of Rs.14,04,000/- in M.C.O.P.No.6250/2018 and Rs.12,37,600/- in
M.C.O.P.No.6253/2018. Not satisfied with the quantum, the claimants
are on appeal before this Court.
4. Heard Mr.F.Terry Chella Raja, the learned counsel appearing for
the appellants and Mr.K.Elango, the learned counsel appearing on behalf
of the respondent/Insurance Company.
5. The learned counsel for the appellants would submit that in this
case, the accident took place in the year 2018. Firstly, the trial Court had
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C.M.A.NoS.2210& 2218 of 2021
deducted 20% of the total compensation on the ground of contributory
negligence. When the offending lorry is parked on highway, there was no
question of deduction of contributory negligence and in this case, no
contra evidence was also let in by the Insurance Company to prove that
the deceased in any manner contributed to the accident. Secondly, it is his
contention that in both the cases, in the absence of positive proof of
income, a sum of Rs.10,000/- has been taken as notional income. In this
regard, the learned counsel would rely upon the judgment of the Division
Bench of this Court in C.M.A.No.1635/2020 wherein, in respect of an
accident which happened in the year 2018, this Court, after considering
the issue, had taken the notional income as Rs.15,000/- per month. As a
matter of fact, the learned counsel would also cite the judgments of
Division Benches in Managing Director, Tamil Nadu State Transport
Corporation vs. Neela and another reported in CDJ 2019 MHC 3304 and
Maheshwari and others vs. V.Vimal and others in C.M.A.Nos.149 &
740/2021 to demonstrate that this Court had even taken more than
Rs.15,000 i.e., Rs.18,000/- and Rs.20,000/- as notional income in those
cases. Therefore, he would submit that the quantum awarded by the trial
Court is on the lower side and requires interference.
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C.M.A.NoS.2210& 2218 of 2021
6. Per contra, the learned counsel appearing for the Insurance
Company would submit that a sum of Rs.10,000/- has been uniformly
taken as notional income and as a matter of fact, he circulated two other
judgments of this Court of the learned single Judge (C.M.A.Nos.342 &
887 of 2022 and C.M.A.No.710/2021) to contend that the notional
income is rightly taken as Rs.10,000/-. He would also submit that when
the vehicle was not stopped and dashed against the stationary vehicle,
the Tribunal was right in deducting 20% as contributory negligence.
7. We have considered the submissions made on either side and
perused the material records of the case.
8. The points raised for consideration in these appeals are:
i) Whether or not the trial Court is right in deducting 20% of the
compensation as contributory negligence?
ii) Whether or not the trial Court is right in taking the notional
monthly income as Rs.10,000/- and arriving at the compensation?
9. Point No.(i): It can be seen in this case that the offending
vehicle was parked on the highway. That is only the sole and proximate
reason for the accident and on the facts and circumstances of this case,
especially, when no contra evidence was let in on behalf of the Insurance
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C.M.A.NoS.2210& 2218 of 2021
Company to the effect that the deceased failed to take reasonable care, we
find that the Tribunal erred in deducting 20% as contributory negligence
and therefore, to that extent, the award of the Tribunal requires
interference.
10. Point No.(ii). Now coming to the notional income, in the
absence of any poof, it can been seen that the evidence of the claimants
is that the deceased Jamuna was working as a Tailor cum Apalam maker.
Similarly, the deceased Kamalesh was the first year B.C.A. student in a
private College in Chennai. Under these circumstances, the Division
Bench of this Court in Managing Director, Tamil Nadu State Transport
Corporation vs. Neela and another (CDJ 2019 MHC 3304) (cited supra)
has categorically laid down that considering the vagaries of the
employment and the prevailing circumstances as of the year 2018, a sum
of Rs.10,000/- is too low and the notional income of Rs.15,000/- per
month will be appropriate.
11. In that view of the matter, we are inclined to accept the criteria
laid down by the Division Bench of this Court. Therefore, in both cases,
we fix the notional income as Rs.15,000/-. Now if that is fixed, the
following would be the calculation.
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C.M.A.NoS.2210& 2218 of 2021
12. In respect of CMA.2210/2018 (MCOP.No.6253/2014),
compensation payable is worked as follows:
Deceased monthly income : Rs.15,000/-
plus: 40% future prospects : Rs. 6,000/-
-----------------
Rs.21,000/-
-----------------
Towards loss of dependency
Rs.21,000 x 18 x 12 x 1/2 : Rs.22,68,000/-
Towards Funeral Expenses : Rs. 15,000/-
Towards Loss of Love
and Affection : Rs. 20,000/-
-------------------
Rs.23,03,000/-
-------------------
13. In respect of CMA.2218/2018(MCOP.No.6250/2014),
compensation payable is worked as follows:
Deceased monthly income : Rs.15,000/-
plus: 40% future prospects : Rs. 6,000/-
-----------------
Rs.21,000/-
-----------------
Towards loss of dependency
Rs.21,000 x 12 x 15 x 2/3 : Rs.25,20,000/-
Towards Funeral Expenses : Rs. 15,000/-
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C.M.A.NoS.2210& 2218 of 2021
Towards Loss of Love
and Affection
Rs.20,000/- each x 2 : Rs. 40,000/-
Towards Loss of Consortium
: Rs. 20,000/-
-------------------
Rs.25,95,000/-
-------------------
Accordingly, the award amount in both the cases are enhanced as stated
supra.
14. In the result, the Civil Miscellaneous Appeals are allowed. The
award of the Tribunal in M.C.O.P.No.6250/2014 is modified and
enhanced as Rs.25,95,000/- Similarly, the award of the Tribunal in
M.C.O.P.No.6253/2014 is modified and enhanced as Rs.23,03,000/-.
The proportion of distribution shall be the same as ordered by the trial
Court. The Insurance Company shall deposit the enhanced award
amount, less the amount, if any, already deposited, within a period of
eight weeks from the date of receipt of a copy of this order. On such
deposit, the claimants will be entitled to withdraw the entire sum. No
costs.
(J.N.B,J.) (D.B.C, J.)
Index : Yes / No 13.06.2023
Internet : Yes
vsi
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C.M.A.NoS.2210& 2218 of 2021
To
The Motor Accident Claims Tribunal,
Chief Judge, Court of Small Causes,
Chennai.
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C.M.A.NoS.2210& 2218 of 2021
J. NISHA BANU, J.
and
D.BHARATHA CHAKRAVARTHY,J.
vsi
C.M.A.Nos.2210 & 2218 of 2021
13.06.2023
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