Madras High Court
Santhiya vs Selvi on 23 June, 2023
CMA.No.1413 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 23.06.2023
CORAM
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.M.A.No.1413 of 2021
1.Santhiya
2. Minor Sujitha
3. Minor Kanishkan
(Minors appellants represented by their next friend
and mother Santhiya/first appellant)
4. Sellammal
... Appellants
- Vs -
1. Selvi
2. HDFC ERGO General Insurance Company Limited,
356/1, Empire Arcot, Omalur Main Road,
Opposite New bus Stand, Salem – 4.
... Respondents
Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act 1988, praying to enhance the award dated 22.01.2021made in
M.C.O.P.No.169 of 2017 on the file of the Motor Accident Claims Tribunal
(Sub Judge), Rasipuram.
For Appellants : Mr.R.Nalliyappan
For R1 : M/s. W.Camyles Gandhi
For R2 : Mr.S.Arun Kumar
***
1/10
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CMA.No.1413 of 2021
JUDGMENT
This instant appeal has been filed by the wife, two minor children and
mother of the deceased Prabhu against the award passed in M.C.O.P.No.169
of 2017 by the Motor Accidents Claims Tribunal, (Sub Judge), Rasipuram, on
22.01.2021, awarding a sum of Rs.13,09,600/- as compensation.
2. For the sake of convenience, the parties are referred to as per their
ranks mentioned in the petition.
3. According to the petitioners, on 24.02.2016 at about 06.45p.m, the
deceased Prabhu, while riding his Two Wheeler in Namagiripettai to
Belukkurchi main Road, the driver of the Tractor bearing registration No.
TN 28 AS 4846 owned by the first respondent, drove the same in a rash and
negligent manner and hit against the motorcycle rode by the deceased and
caused the accident. In the accident, the said Prabhu sustained fatal injuries
and died on the spot. The accident occurred only due to rash and negligent
driving of the driver of the Tractor owned by the first respondent. At the time
of accident, Prabhu was aged about 33 years, and earning Rs.20,000/- per
month as a Loadman.
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CMA.No.1413 of 2021
4. The first respondent remained exparte before the Tribunal.
5. The second respondent filed a counter statement stating that there
was no negligence on the part of the driver of the vehicle bearing Registration
No.TN 28 AS 4846. It was also pleaded that the driver of the insured vehicle
did not possess valid driving license. Further, the second
respondent/Insurance Company also disputes the age, income and
dependency of the claimants.
6. Before the Tribunal, the first petitioner examined herself as PW1 and
one Mr.Shanmugavel was examined as PW2 and marked 15 documents as
Exs.P1 to Exs.P15. On the side of the second respondent, Office Assistant of
RTO, one Sikatharali was examined as RW1 and marked Ex.X1, they also
examined their Legal Manager one Mr.Sivakumar as RW2 and marked Exs.R1
to R3.
7. The Tribunal, based on the materials available on record and the
evidence, has observed that the accident had occurred due to the negligent
driving of the driver of the Tractor and hence fixed the liability on the
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CMA.No.1413 of 2021
Insurance Company and awarded a total compensation of Rs.13,09,600/- with
interest at 7.5% per annum from the date of petition. Further on holding that
there was a violation of policy condition, pay and recovery was ordered.
Feeling aggrieved with the quantum so awarded, the petitioners/claimants
have preferred this appeal seeking enhancement of the same.
8. The learned counsel for the appellants would submit that the Tribunal
has erred in awarding a meagre sum of Rs.13,09,600/- as against the claim of
Rs.30,00,000/- made by the appellants / claimants. The learned counsel further
submitted that when the deceased was earning Rs.20,000/- per month as a
Loadman, the Tribunal has erred in taking his income only at Rs.6,000/- per
month. It is also submitted that the amounts awarded towards other heads are
meagre and hence, the compensation awarded by the Tribunal needs
interference at the hands of this Court by way of enhancement.
9. Per contra, the learned counsel for the second respondent/insurance
company submitted that after properly analysing the materials and evidence,
the Tribunal has awarded the compensation, which is just and reasonable and
hence, the same does not require any interference by this Court.
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CMA.No.1413 of 2021
10. I have given my anxious consideration to either side submission.
11. The Tribunal arrived at a conclusion that there was a negligence on
the part of the driver of the Tractor bearing Registration No.TN 28 AS 4846,
and that he did not have the valid driving license to drive the vehicle, at the
time of the accident. This portion of the finding is not in challenge before this
Court. Therefore, the point for consideration before this Court is only in
respect of the just compensation.
12. With respect to quantum of compensation, it is seen that the wife of
the deceased was examined as P.W.1, who deposed in her evidence that the
deceased was aged about 33 years and was earning Rs.20,000/- per month as a
Load man. To prove the avocation and income of the deceased, the petitioners
/ appellants did not file any documents. In the absence of any material
evidence, the Tribunal fixed a sum of Rs.6,000/- per month as the notional
income of the deceased. The petitioner/appellant counsel urged that the
notional income has to be increased. In this case, by relying Ex.P3-
Postmortem Certificate, the age of the deceased was determined as 33 years.
There is no dispute in respect of the age of the deceased.
13. As stated supra, the only objection projected by the learned counsel
for the petitioners is that the notional income fixed at Rs.6,000/- per month is
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CMA.No.1413 of 2021
highly inadequate. Here, the accident is of the year 2016. It is an admitted
case that the deceased was 33 years old at the time of the accident. Not
withstanding any fact, a hale and healthy person would definitely earn not less
than Rs.10,000/- per month. Therefore, taking note of the year of accident,
this Court determines a sum of Rs.10,000/- towards notional income. Further,
as per the judgment of the Hon'ble Supreme Court, reported in 2017 (2)
TNMAC 609 (SC) (National Insurance Company v. Pranay Sethi & others),
40% to be added with the above notional income towards future prospects.
The Tribunal has rightly taken the multiplier as '16', by following Sarla
Verma and others Vs. Delhi Transport Corporation and another reported in
2009 ACJ 1298 SC. Here considering the 4 dependent family members, 1/4th
of the monthly income to be deducted towards personal expenses of the
deceased. Thus the loss of dependency works out to Rs.20,16,000/-.
Accordingly, the compensation towards loss of dependency is hereby
enhanced to Rs.20,16,000/-.
14. That apart, the Tribunal has awarded Rs.15,000/- towards funeral
expenses, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards
loss of estate, which, in the opinion of this Court, are just and reasonable, and
hence, the same need not be interfered with.
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CMA.No.1413 of 2021
15. But, the Tribunal has not awarded any amount of compensation
under the heads 'Loss of Filial Consortium' to the appellants 2 to 4. Hence,
this Court award a sum of Rs.1,20,000/- (40,000 X 3) towards 'Loss of Filial
Consortium' to the children and mother of the deceased / appellants 2 to 4.
Curiously, the Trial Court, awarded a sum of Rs.30,000/- towards Loss of
spouse, which is incongruous and unwarranted. Hence, the same is hereby set
aside.
16. Thus, the details of the modified compensation are as follows:
S.No Various Heads Awarded by Awarded by Award confirmed or
the Tribunal this Court enhanced or
increased or
reduced
1. Loss of Dependency Rs.12,09,600 Rs.20,16,000 Enhanced
2. Funeral expenses Rs.15,000/- Rs.15,000/- Confirmed
3. Loss of Consortium to the Rs.40,000/- Rs.40,000/- Confirmed
first appellant
4. Loss of Estate Rs.15,000/- Rs.15,000/- Confirmed
5. Loss of spouse Rs.30,000 --- Setaside
5. Loss of Filial consortium ---- Rs.1,20,000 Awarded
of the appellants 2 to 4 at
the rate of Rs.40,000/-
each.
Total Rs.13,09,600 Rs.22,06,000 Enhanced
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CMA.No.1413 of 2021
17. In the result, the Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.13,09,600/- is hereby
enhanced to Rs.22,06,000/- with interest at the rate of 7.5% per annum from
the date of petition. No costs. The second respondent/ Insurance Company is
directed to deposit the modified amount of compensation, as ordered above,
along with interest and costs, after deducting the amount if any, already
deposited, within a period of six (6) weeks from the date of receipt of a copy
of this judgment and thereafter, recover the same from the first respondent/
owner of the vehicle, as ordered by the Tribunal. In the above award amount
first appellant is entitled to Rs.7,00,000/- and appellants 2 and 3 are entitled to
Rs.5,78,000/-each, and fourth appellant is entitled to Rs.3,50,000/- On such
deposits being made, the appellants 1 & 4 are permitted to withdraw their
share on making proper application before the Tribunal. The share of the
minor appellants 2 & 3 shall be deposited in any one of the Nationalised bank
as ordered by the Tribunal, till the minors attain majority. The interest accrued
in respect of the minors, shall be withdrawn by the first appellant - mother
once in three months directly from the bank, which shall be utilized for the
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CMA.No.1413 of 2021
benefit and welfare of the minors. It is made clear that the
appellants/claimants have to pay the appropriate Court fee, before receiving
the awarded amount.
23.06.2023
av
Index : yes/no
Speaking/Non Speaking Order
To
1. The Motor Accident Claims Tribunal,
(Sub Judge), Rasipuram.
2. The Section Officer,
V.R.Section, High Court,
Madras.
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CMA.No.1413 of 2021
C.KUMARAPPAN.J
av
C.M.A.No.1413 of 2021
23.06.2023
https://www.mhc.tn.gov.in/judis
