Madras High Court

The Divisional Manager vs Selladurai on 23 March, 2023

                                                                                     C.M.A.(MD)No.91 of 2023


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED : 23.03.2023

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                                  C.M.A.(MD)No.91 of 2023
                                                           and
                                                 C.M.P.(MD)No.1037 of 2023


                The Divisional Manager,
                HDFC ERGO Insurance Company Limited.,
                Rekha Towers, Kamarajar Salai,
                Madurai-625 009.                                      ...Appellant/2nd respondent


                                                          Vs.
                1.Selladurai
                2.Gomathi                                       ...Respondents 1 & 2/Petitioners
                3.K.Rajendran                                   ...3rd Respondent/1st Respondent


                PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
                Motor Vehicles Act, 1988, to set aside the judgment dated 06.08.2022 passed in
                M.C.O.P.No.1697 of 2018 on the file of the Motor Accident Claims
                Tribunal/Special District Judge [MACT] of Madurai by allowing this appeal.


                                        For Appellant     : Mr.V.Sakthivel
                                        For R1            : Mr.V.Sriram
                                        For R2            : Ms.B.Tamilselvi


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https://www.mhc.tn.gov.in/judis
                                                                                         C.M.A.(MD)No.91 of 2023


                                                          JUDGMENT

Challenging the award passed by the Motor Accident Claims

Tribunal/Special District Judge, Madurai in M.C.O.P.No.1697 of 2018 dated

16.08.2022, the present Civil Miscellaneous Appeal is filed.

2.For the sake of convenience, the parties are referred to herein, as per

their rank before the Trial Court.

3.The brief facts, leading to the filing of this Civil Miscellaneous

Appeal, are as follows:-

(i)on 02.10.2018, at about 10.30 a.m., the deceased along with her

mother Gomathi and his brother Minor Siva were in Madurai-Trichy Fourway,

Sathiyapuram Bus stop. At that time a car bearing Registration No.TN-64-P-1085

came from Madruai-Thanjavru Road came in a negligent manner dashed against

the deceased, as a result the deceased succumbed to injuries. Hence, the claim

petition has been filed.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.91 of 2023

(ii)The Insurance Company before the Tribunal took a stand that the

driver of the car had driven the car at a moderate speed on the proper side of the

road taking necessary precautions. While so, the deceased suddenly and

unexpectedly came across the road without noticing the car and the accident could

not be averted despite the best efforts of the driver. The accident was solely due to

the negligent act of the second petitioner in allowing a child of tender years

unattended on a busy highway and the driver of the car was in no way responsible

for the accident.

4. Before the Tribunal, on the side of the claimant P.W.1 and P.W.2 were

examined and Ex.P1 to Ex.P9 were marked. On the side of the respondents no

oral and documentary evidence had been marked.

5. Considering the evidence adduced, the trial Court found that the driver

of the first respondent's Car drove the car in a rash and negligent manner and

awarded a compensation of Rs.14,11,000/- with interest at the rate of 7.5% p.a.

Challenging the same, the present appeal has been filed.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.91 of 2023

6.I have heard the learned counsel appearing on either side and also

perused the materials available on record.

7.It is the main contention of the learned counsel appearing for the

petitioners / respondents that the compensation arrived by the trial Court is not

legally correct and having found that the driver of the first respondent's Car was

negligent in driving the car and the deceased is a minor, the Tribunal ought to have

granted compensation.

8.The learned counsel for the appellant submitted that due to the

negligence of the deceased, the accident had occurred and the Insurance Company

is not liable to pay the compensation to the claimants.

9.In view of the above submission, now the point arises for consideration

in this appeal is:

(1) Whether the Tribunal is right in fixing the income of the deceased

and in adopting multiplier 18?

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.91 of 2023

10.The Insurance Company has not disputed the accident. The offending

car driver drove the Car in a rash and negligent manner. The Tribunal considering

the evidence of P.W.2, found that the car was driven in a rash and negligent

manner and as a result, the accident was occurred. There is no contra evidence

adduced in this regard and FIR registered against the driver of the offending

vehicle was also not challenged. Further, the driver of the car was also not

examined and the policy is not disputed by the Insurance Company.

11.In respect of compensation is concerned, on a perusal of the records,

it is seen that the Tribunal has awarded a sum of Rs.14,11,000/- as compensation.

It is relevant to note that the deceased was aged about 6 years, a minor boy. In

Kishan Gopal and another Vs. Lala and others reported in 2013(2) TN MAC

358, the Hon'ble Supreme Court has fixed the notional income of the minor at

Rs.30,000/- per annum and granted a sum of Rs.50,000/- under conventional

heads. The Division Bench of this Court in Divisional Manager, United India

Insurance CO. Ltd., Vs. Sakunthala reported in 2022 (2) TN MAC 555 (DB),

fixed the notional income of the non-earning member as Rs.60,000/- per annum.

The fact remains that the Apex Court has fixed a sum of Rs.30,000/- as notional

income in the year 2013. However, considering the passage of time, this Court is

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.91 of 2023

of the view that fixing of a sum of Rs.5,000/- (Rupees Five Thousand only) as

income per month will meet the ends of justice. In respect of deduction for

personal expenses for a minor child, this Court in Divisional Manager, Reliance

General Insurance Co. Ltd. Vs. Govindaraji reported in 2021 (2) TN MAC

271, in paragraph 18 has held as follows:

“18. So far as minors are concerned, they are non earning members and there is no occasion for them to spend money towards the personal expenses and there cannot be any deduction towards their personal expenses. In Lata Wadhwa case (cited supra) and Kishan Gopal case (cited supra). The Hon'ble Supreme Court after fixing the notional monthly income of the minor applied the multiplier and taken the entire amount as the loss of dependency and no deduction was made for their personal expenses. In the above circumstances, this Court is of the view that there cannot be any deduction towards personal expenses from the notional income of deceased minors.”

12. Following the said judgment, this Court is of the view that there

cannot be any deduction towards personal expenses from the income of the

deceased minor. The correct multiplier to be applied for minor is 15. The

Tribunal erred in applying multiplier 18 for arriving at loss of income. Therefore,

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.91 of 2023

if a sum of Rs.5,000/- (Rupees Five Thousand only) is fixed as notional income,

the annual notional income would be at Rs.60,000/- (5,000 x12) and if '15'

multiplier is applied, the total loss of dependency would be at Rs.9,00,000/- (5000

x 12 x 15). The compensation awarded by the Tribunal under all other heads

remains unaltered. Hence, the modified compensation is as follows:

                             S.                      Heads                           Amount
                             No
                              1. Loss of income (Rs.50,000/-*15)            Rs. 9,00,000/-
                              2. Loss of filial consortium                  Rs.    80,000/-
                              3. Funeral expenses                           Rs.    15,000/-
                              4. Loss of estate                             Rs.    15,000/-
                              5. Transport expenses                         Rs.     5,000/-
                                                                      Total Rs. 10,15,000/-

The compensation is reduced from Rs.14,11,000/- to Rs.10,15,000/- along with

interest at 7.5% p.a.

13. In the result, this Civil Miscellaneous Appeal is allowed. The learned

counsel for the Insurance Company had already deposited a sum of Rs.4,70,000/-

with interest and costs. Hence, the appellant/ Insurance Company is directed to

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.91 of 2023

deposit the reduced compensation amount of Rs.10,15,000/- (Rupees Ten Lakhs

Fifteen Thousand only), along with interest at the rate of 7.5% p.a. from the date

of accident till the date of deposit, less the amount already deposited, within a

period of three months from the date of receipt of a copy of this order. Out of the

said compensation amount, the first and second respondents are equally entitled to

get a sum of Rs.5,07,500/- (Rupees Five Lakhs Seven Thousand Five Hundred

only) as compensation. The claimants may approach the Tribunal for withdrawal

of the said amount, by filing necessary application and if such an application is

filed, the Tribunal shall pass orders for withdrawal. No costs. Consequently,

connected miscellaneous petition is closed.