Kiruthika vs M/S.Srs Roadways
2023 Latest Caselaw 14258 Mad

    2023/MHC/5089



                                                             1

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED: 09.11.2023

                                                           CORAM:

                             THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

                                                C.M.A(MD)NO.1134 OF 2023

                     1.Kiruthika

                     2.Minor Devadharshan

                     (Minor second appellant represented through his
                     mother and natural guardian, the first appellant herein
                     Kiruthika)

                     3.Matheswari

                     4.Muniamma                                  :Appellants/Petitioners

                                                    .vs.

                     1.M/s.SRS Roadways,
                       Kasikadu,
                       Morasapatti Post,
                       Edapadi Taluk,
                       Salem – 637 101.

                     2.The New India Assurance Company Limited,
                       Branch Office,
                       Jerom Building Second Floor,
                       Kottai Station Road,
                       Tiruchirappalli.

                     Policy No.71050031160150011950 : 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.1524 of 2017, dated 12.04.2022, on the file of the
                     Motor          Accidents     Claims    Tribunal(Special   District    Court),
https://www.mhc.tn.gov.in/judis
                                                              2

                     Tiruchirappalli seeking further enhancement of compensation of Rs.
                     15 lakhs.
                                         For Appellants           :Mr.N.Sudhagar Nagaraj

                                         For Respondent-2         :Mr.A.Ilango

                                                     JUDGMENT

*********

This Civil Miscellaneous Appeal is filed by the

appellants/Claimants challenging the quantum of compensation

awarded in M.C.O.P.No.1524 of 2017, dated 12.04.2022, on the file

of the Motor Accidents Claims Tribunal(Special District Court),

Tiruchirappalli seeking enhancement of compensation at Rs.15

lakhs.

2.The appellants filed the claim petition under Section 140

and 166 of the Motor Vehicles Act stating that on 24.08.2017 at

about 19.15 p.m., in Bhavani-Mettur Main Road, near Chinnapallam

Bus stop, Ammapettai, the deceased was riding the two wheeler

bearing Registration No. TN 93 0768 following the road traffic rules

from south to north on the left side of the road.

3.At that point of time, the lorry bearing Registration No. TN

52 K 9214 belong to the first respondent, insured with the second

respondent, had come in a rash and negligent manner from the

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opposite direction and dashed against the two wheeler of the

deceased. As a result, the deceased sustained multiple injuries all

over the body and died on the spot. The deceased was working as a

Welder and earning a sum of Rs.18,000/-p.m. He is the sole bread-

winner of the family. Because of his sudden demise, the

appellants/claimants are left in lurch and they find the living very

difficult. They lost both financial and moral support of the deceased

and hence a petition was filed claiming a compensation of Rs.50

lakhs.

4.In the counter filed by the second respondent, it was stated

that the vehicle of the first respondent involved in the accident has

not been insured and it had no valid RC and FC permit.The claim of

compensation at Rs.50 lakhs is very excessive.

5.During the enquiry before the Tribunal, P.W.1 to P.W.3 were

examined and Ex.P1 to Ex.P15 were marked. To prove the

employment and monthly earning of the deceased, Ex.X1 to Ex.X3

were produced and marked. On the side of the respondents, no

witness was examined and no documents were marked. On

considering the oral and documentary evidence, the learned Tribunal

awarded a sum of Rs.14,76,000/- as compensation under various

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heads which are as follows:

1.Loss of Dependency - Rs.13,44,000/-

                     2.Transport expenses            - Rs.7,000/-
                       to the hospital

                     3.Loss of Estate                 -Rs.10,000/-
                     4.Loss of consortium             -Rs.35,000/-
                       the first petitioner

5.Parental consortium to -Rs.35,000/- to the second petitioner

6.Filial consortium to the – Rs.35,000/-

                       third petitioner
                     7.For funeral expenses      -Rs.10,000
                                    total       ---------------
                                                 -Rs.14,76,000/-
                                                 ----------------

6.This award is being challenged by the learned counsel for

the appellants on the ground that despite production of Ex.X1 to

Ex.X3 documents and examination of P.W.3 in proof of the

avocation of the deceased as a Welder and earning Rs.18,000/-

p.m., the Tribunal without any sustainable reason, rejected the

evidence of P.W.3 and Ex.X1 to Ex.X3 and had taken the notional

income at Rs.7,500/-p.m.This is not on the basis of evidence and

thus this appeal is filed.

7.In reply to the above submission, the learned counsel for

the second respondent submitted that no doubt that P.W.3 had

produced Ex.X1 to Ex.X3 and gave evidence that the deceased had

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worked as a Welder and was paid Rs.18,000/- as monthly salary.

The Tribunal rejected his evidence for the reason that except his

oral evidence,there is no other evidence produced like the

Attendance Register and Wage Register to corroborate and confirm

that the deceased was employed as a Welder and earned Rs.

18,000/-p.m.Thus he submitted that the income fixed at Rs.7500/-

p.m is just and appropriate.

8.In reply, the learned counsel for the appellants submitted

that even in the absence of evidence of P.W.3 and Ex.X1 to Ex.X3

and on the premise that the deceased was not working as Welder,

he submitted that considering the age of the deceased that he was

only 31 years at the time of accident, he would have earned not less

than Rs.10,000/-p.m by doing any physical labour. It is his further

case that adopting notional income at Rs.7500/-p.m is very low.

9.This Court considered the rival submissions made on either

side and perused the records.

10.As discussed above, this appeal is filed by the

appellants/claimants challenging the quantum awarded and for

enhancement of the quantum of compensation awarded.The only

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

question that has to be decided in this appeal is whether the

learned Tribunal was right in adopting the notinal income at Rs.

7500/-p.m or it requires to be enhanced?

11.Admittedly, the evidence of P.W.3 and Ex.X1 to Ex.X3

were rejected for the reason that this evidence is not supported by

the Attendance Register and Wage Register. This Court also finds

that no Technical Certificate issued by IIT or any other qualified

institution for the completion of Course in Welder by the deceased

was produced. Therefore, this Court also finds that rejection of

evidence of P.W.3 and Ex.X1 to Ex.X3 is correct.

12.Howeve, this Court finds some merit in the submission of

the learned counsel for the appellants that considering the age of

the deceased that he was only 31 years at the time of accident, he

would have earned not less than Rs.10,000/-p.m by doing any

physical labour. Therefore, this Court is of the view that fixing the

notional income at Rs.7,500/-p.m is required to be set aside and the

notional income is enhanced to Rs.10,000/-p.m. Along with this

amount, 40% of the notional income has to be added towards

future prospects and thus the monthly income is fixed as Rs.

14,000/-(Rs.10,000/- + Rs.4,000/-). As per Sarla Verma’s case(

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

Smt.Sarla Verma .vs. Delhi Transport Corporation and

another reported in 2009(2) TN MAC 1(SC), one fourth of the

monthly income has to be deducted towards the personal

expenditure of the deceased. 1/4th amount is Rs.3,500/- and thus

3/4th amount comes to Rs.10,500/-. Appropripate multiplier to be

adopted for computation of loss of income is ‘16’. Thus the loss of

income is Rs.10,500 x 12 x 16 = Rs.20,16,000/-. The compensation

awarded under other heads are retained. Thus the award of the

Tribunal is modified as follows:

S.No Name of the Awarded by Awarded by Remarks heads the Tribunal this Court 1 For loss of Rs. Rs. enhanced income 13,44,000/- 20,16,000/-

2 Transport Rs.7,000/- Rs.7,000/- same expenses to the hospital 3 For loss of estate Rs.10,000/- Rs.10,000-/- same 4 For funeral Rs.10,000/- Rs.10,000/- Same expenses

5. For loss of filial Rs.35,000/- Rs.35,000/- same consortium to the first petitioner wife 6 For loss of Rs.35,000/- Rs.35,000/- Same consortium to the second petitioner 7 For filial Rs.35,000/- Rs.35,000/- Same consortium to the third petitioner 8 Total Rs. Rs. enhanced 14,76,000/- 21,58,000/-

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

13.In fine, the Civil Miscellaneous Appeal is allowed in part

and the award amount is enhanced from Rs.14,76,000/- to Rs.

21,58,000/- with interest at 7.5% p.a from the date of claim

petition till the date of realisation. The second

respondent/Insurance Company is directed to deposit the above

said enhanced award amount with accrued interest and costs, less

the award amount already deposited, if any, within a period of four

weeks from the date of receipt of a copy of this order. On such

deposit being made, the first claimant is entitled to a sum of Rs.

10,58,000/- and the second claimant is entitled to a sum of Rs.8

lakhs and third claimant is entitled to a sum of Rs.3 lakhs with

proportionate accrued interest and costs. The claimants/appellants

1 and 3 are permitted to withdraw the above said award amount,

less the award amount if any already withdrawn, by filing necessary

application before the Tribunal.The second claimant/second

appellant, being minor, Tribunal is directed to deposit the share of

the second claimant in any one of the nationalised Bank, in an

interest bearing fixed deposit, initially for a period of three years,

renewable thereafter, till she attains majority. The first claimant/first

appellant, being mother and natural guardian of the second

claimant, is permitted to withdraw interest from the above said

deposit, once in three months, directly from the Bank and utilize the

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same for the welfare of the child/minor second appellant. This

appeal is dismissed in respect of the fourth claimant as per the

findings of the Tribunal. Registry is directed to draft the decree in

this appeal only after payment of excess court fee, if any, towards

the enhanced award amount, before the Registry. No costs.

09.11.2023 Index:Yes/No Internet:Yes/No NCC:Yes/No vsn

To

1.The Motor Accidents Claims Tribunal, Special District Court, Tiruchirappalli.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

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

G.CHANDRASEKHARAN,J.

vsn

JUDGMENT MADE IN C.M.A(MD)No.1134 of 2023

09.11.2023

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