Madras High Court
E.Nibalkar vs S.Sakthivel on 28 March, 2023
CMA.No.2447 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :28.03.2023
CORAM
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
C.M.A.No.2447 of 2013
1.E.Nibalkar
2.N.M.Deepika
(minor rep by her father E.Bibalkar) ...Appellants
Vs
1.S.Sakthivel
2.Bajaj Allianz General Insurance Co., Ltd.,
No.25/26, Prince Towers, IV Floor, College Road,
Nungambakkam,
Chennai - 600 034. ..Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the Judgment and Decree passed in
MCOP.No.1960 of 2008 dated 27.03.2013 on the file of Motor Accident
Claims Tribunal (Chief Judge, Court of Small Causes) Chennai.
For Appellants : Ms.A.Salomi
For Respondents :Ex parte - R1
Mr.S.Arun Kumar for R2
JUDGMENT
This appeal has been filed by the claimants seeking
enhancement of compensation under the impugned award dated 27.03.2013
passed by the Motor Accident Claims Tribunal (Chief Judge, Court of Small
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CMA.No.2447 of 2013
Causes) Chennai, in MCOP.No.1960 of 2008
2. On 26.01.2008 while the deceased Manjula along with her
husband and child and others were travelling as occupants in a car bearing
Regn.No.TN-2-AV-4992 from Chennai to Samayapuram on National High
way, driven by Nibalkar, when it was nearing Shekhussainpet, the driver of
the lorry bearing Regn.No.TN-41-Q-9784, drove the same in a rash and
negligent manner in the same direction from behind and hit against the car.
Due to the said impact, she sustained fatal injuries and her husband and
child also sustained injuries. Other persons in the car also sustained multiple
injuries. Claiming that the deceased was working as an Accounts Assistant
in Prime Transport and earning Rs.7300/- per month, the appellants /
claimants have filed a claim petition claiming a sum of Rs.15,00,000/-. The
Tribunal adjudicated the issues with reference to the documents and
evidences. The Insurance Company has defended their case. The Tribunal
has awarded a total compensation of Rs.9,68,000/-.
3. The appellants unsatisfied with the quantum of compensation
awarded by the Tribunal under the impugned award have preferred this
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CMA.No.2447 of 2013
appeal seeking enhancement.
4. The details of the compensation awarded by the Tribunal under the
impugned award are as follows:
Heads Award Amount
(Rs.)
Pecuniary loss to the 9,18,000/-
family
Loss of love & affection 20,000/-
to the 2nd petitioner
Loss of consortium 20,000/-
Funeral Expenses 10,000/-
Total 9,68,000/-
5. Before the Tribunal, the Appellants/claimants examined two
witnesses as PW1 and PW2 and filed fifteen documents which were marked
as Ex.P1 to Ex.P15. On the side of the second respondent, two witnesses
were examined as RW1 and RW2 and filed nine documents which were
marked as Ex.R1 to Ex.R9.
6. Heard the learned counsel for the appellants and learned counsel
for the second respondent and perused the materials available on record.
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CMA.No.2447 of 2013
7. The learned counsel appearing for the Appellants/Claimants
submitted that the decree and Judgement of the Tribunal are against law,
facts, evidence and probabilities of the case. The Tribunal ought to have
taken Rs.7300/- per month as per Ex.P5, but it has failed to appreciate the
said document and fixed only Rs.4500 per months towards notional income.
In view of the Apex Court Full bench decision in the case of Rajesh and
others Vs. Rajbir Singh and others reported in 2013 ACJ 1403, the award
granted under the head of loss of consortium-Rs.20000/-, loss of love and
affection-Rs.20000/-; funeral expenses-Rs.10000/- which are on the lower
side. It has not granted any amount towards transportation and damages to
clothes. He further submitted that it has failed to consider the age, income
and occupation of the deceased. The Tribunal, without appreciating the
evidences properly, has awarded the total compensation of Rs.9,68,000/-
and the said quantum is unreasonable. Hence, he prayed to enhance the
compensation.
8. Per contra, the learned counsel appearing for the second
respondent submitted that the compensation claimed by the appellants is
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CMA.No.2447 of 2013
highly excessive and baseless. He further submitted that the Tribunal after
analysing the evidences on record, has rightly awarded the compensation to
the appellants/claimants and hence, the award passed by the Tribunal does
not warrant any interference by this Court. Hence, he prays for dismissal of
the appeal.
9. The Tribunal has relied upon Ex.P1/FIR, Ex.P2/copy of Accident
Register; Ex.P3/Copy of post mortem certificate of the deceased Manjula;
Ex.P4/Death Certificate, Ex.P5/Salary certificate; the Tribunal has taken the
age of the deceased as 30 years. Considering the age and earning capacity
of the deceased, the Tribunal fixed the monthly income of the deceased at
Rs.4500/- per month, adding 50% of the income towards future prospects,
deducting 1/3 of the income towards personal expenses of the deceased,
adopting the multiplier of 17 (4500 + 50%=2250, 4500 + 2250 = 6750-
2250 = 4500; 4500 x12 x17 =9,18,000/-),and has arrived at a sum of
Rs.9,18,000/- towards loss of pecuniary benefits.
10. On perusal of records, it is seen that the Tribunal has not properly
considered the evidences properly and the documents marked. Considering
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CMA.No.2447 of 2013
the age of the deceased and economic situation prevailing at the present
time and also the facts and circumstances of the case, this Court is of the
considered view that Rs.6500/- is to be taken as monthly income of the
deceased. Since the age of the deceased was 30 years at the time of accident,
there is need to change the multiplier as 17. Further, considering and age
and earning capacity, 40% should be added towards future prospectus and
1/3 has to be deducted towards personal expenses for calculating pecuniary
loss of income. If Rs.6500/- is taken as the monthly income of the deceased,
after adding 40% towards future prospectus of the deceased and 1/3 of the
amount is deducted towards personal expenses and the multiplier of 17 is
adopted, the loss of income works out to Rs.12,37,668/-, (6500 x 40 % =
2600), (6500 + 2600= 9100 x 1/3 =3033; 9100 – 3033 = 6067 x 12 x17 =
Rs.12,37,668/-). Accordingly, the amount awarded by the Tribunal towards
'pecuniary loss of income' stands enhanced to Rs.12,37,668/-. Similarly, as
per the Pranay Sethi case, it would be appropriate to enhance the award
under the head of loss of love and affection to the appellants 1 and 2 to
Rs.40,000/- each which would come to Rs.80,000/-, and also Rs.15,000/-
towards funeral expenses. On perusal of records, it is seen that no amount
is awarded under the head of loss of estate for which they are entitled to.
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CMA.No.2447 of 2013
Hence, this court is inclined to grant a sum of Rs.15,000/- towards loss of
estate. This court is not inclined to grant award under the head of loss of
consortium.
11.The details of the enhanced compensation are as under:
Heads Award Amount
(Rs.)
Pecuniary loss of 12,37,668/-
Income
Funeral Expenses 15,000/-
Loss of love & Affection 80,000/-
to the appellants 1 & 2
(Rs.40000/- each)
Loss of estate 15,000/-
Total 13,47,668/-
Rounded off to Rs.13,47,670/-
12. Thus, the appellants/claimants are entitled to the enhanced
compensation of Rs.13,47,670/-. It is made clear that for the enhanced
amount of Rs.3,79,670/-, the interest rate of 7.5% shall be calculated from
the date of filing of this appeal. The second respondent is directed to deposit
the award amount within a period of six weeks from the date of copy of this
judgement and recover the same from the first respondent.
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CMA.No.2447 of 2013
13.The Civil Miscellaneous Appeal is partly allowed. No costs.
14. The second respondent/Insurance Company is directed to deposit
the enhanced compensation as ordered above, less the amount if any already
deposited, within a period of six weeks from the date of receipt of a copy of
this judgment. On such deposit being made, the Tribunal, in the same ratio
as awarded by it, is directed to transfer the award amount along with
accrued interest to the bank account of the first appellant through RTGS
within a period of two weeks thereafter. The share of the minor second
appellant is directed to be deposited in any one of the nationalised banks till
she attained majority. No costs.
15. Since the compensation amount now awarded is Rs.13,47,670/-,
it is made clear that the claimants have to pay the appropriate Court fee in
order to receive the enhanced award amount.
Index : Yes/No 28.03.2023
Internet : Yes/No (1/3)
gv
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CMA.No.2447 of 2013
To
1.The Motor Accident Claims Tribunal/
Chief Judge, Court of Small Causes) Chennai.
2.The Section Officer,
VR Section, High Court, Madras.
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CMA.No.2447 of 2013
A.A.NAKKIRAN.,J.
gv
C.M.A.No.2447 of 2013
28.03.2023
(1/3)
https://www.mhc.tn.gov.in/judis
