Madras High Court
Deepa vs P.Kalavathi on 13 September, 2023
C.M.A.No.2136 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
C.M.A.No.2136 of 2023
1.Deepa
2.Minor Subasri
3.Minor Vikasini
4.Rathinammal
5.Palaniappan ... Appellants
Versus
1.P.Kalavathi.
2.United India Insurance Company Limited,
Branch Office, No.14/1-77B, Salem Main Road,
Puduchampalli, Mettur Dam-636403,
Mettur Taluk, Salem District
... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, against the judgment and decree dated 21.11.2019
made in M.C.O.P.No.63 of 2012, on the file of the Motor Accident
Claims Tribunal, Sub-Court, Mettur.
For Appellants : Mr.S.P.Yuvaraj
For R2 : Mr.C.Paranthaman
JUDGMENT
This appeal has been filed by the appellants/claimants challenging
the compensation awarded by the Tribunal in M.C.O.P.No.63 of 2012,
dated 21.11.2019.
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C.M.A.No.2136 of 2023
2.The claim petition was filed stating that on 19.09.2011, at about
03.00 pm., while the deceased was riding his motorcycle, the lorry
insured with the 2nd respondent came in a rash and negligent manner,
dashed against the vehicle of the deceased; as a result of which, the
deceased sustained fatal injuries; thus, the appellants are entitled for
compensation.
3.The 1st respondent-owner of the offending vehicle filed a counter
stating that the accident did not take place due to the negligence of the
lorry driver; and in any case, the lorry was insured with the 2nd
respondent.
4.The 2nd respondent-Insurance Company filed a counter denying
the averments made in the claim petition and stated that the driver of the
lorry did not possess valid driving licence; that the accident took place
only due to the negligence of the deceased; that in any case, the
compensation claimed was excessive and prayed for dismissal of the
claim petition.
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C.M.A.No.2136 of 2023
5.Before the Tribunal, the appellants examined P.W.1 and P.W.2
and marked Exs.P1 to Ex.P18 on their side. The 1st respondent examined
herself as R.W1. However, no document was filed on the side of the 1st
respondent. The 2nd respondent had neither examined any witness nor
marked any document.
6.The Tribunal after considering the oral and documentary
evidence, held that the accident took place due to the negligence of the
driver of the offending vehicle viz., the lorry, insured with the 2 nd
respondent and directed the 2nd respondent to pay a sum of
Rs.12,90,000/- as compensation to the appellants.
7.Aggrieved over the award passed by the Tribunal, the appellants
filed the present appeal seeking for enhancement of compensation.
8.The learned counsel for the appellants submitted that the
compensation awarded by the Tribunal requires enhancement, as the
Tribunal had not taken into consideration the future prospects,
erroneously deducted 1/3rd towards personal expenses and did not award
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C.M.A.No.2136 of 2023
any compensation towards loss of love and affection and loss of estate
and hence, prayed for enhancement for allowing of the appeal.
9.The learned counsel for the appellants further submitted that
since the challenge in the instant appeal is only with regard to the
quantum of compensation, notice to the 1st respondent may be dispensed
with and he had also made an endorsement to that effect. Hence, notice to
the 1st respondent is dispensed with.
10.The learned counsel for the 2rd respondent per contra submitted
submitted that the Tribunal had fixed the income based on Ex.P9-salary
slip and therefore, the award of the Tribunal cannot be faulted and prayed
for dismissal of the appeal.
11.The only question involved in the instant appeal is whether the
compensation awarded by the Tribunal is just and reasonable?
12.On perusal of the records, it is seen that the Tribunal had taken
into consideration Ex.P9-salary slip, to fix the income of the deceased at
Rs.9,640/- per month. The said finding cannot be faulted. However, the
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C.M.A.No.2136 of 2023
Tribunal had deducted 1/3 towards Personal expenses. Admittedly there
are five dependants and therefore, the Tribunal ought to have deducted
1/4th towards personal expenses. That apart, the Tribunal had not
awarded enhancement towards future prospects although the deceased
was aged 32 years at the time of the accident. The appellants are entitled
for 40% enahncement towards future prospects. Therefore, the award
under the head loss of income has to be as follows:
Rs.13,496/- (Rs.9,640 + 40%) X 12 X 16 X 3/4 = Rs.19,43,424/-
The Tribunal had not awarded any amount towards loss of estate and loss
of love and affection to the appellants. Therefore, a sum of Rs.15,000/- is
granted towards loss of estate. The 1st appellant is entitled to Rs.40,000/-
towards loss of consortium and the appellants 2 to 5 are entitled to
Rs.40,000/- each under the head loss of love and affection. The amount
awarded by the Tribunal under the head mental agony is set aside. The
compensation awarded by the Tribunal under other heads is just and
reasonable and the same are confirmed. Thus, the compensation awarded
by the Tribunal is modified as follows:
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C.M.A.No.2136 of 2023
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of Income 12,48,000 19,43,424 Enhanced
2. Mental Agony 25,000 - Set Aside
3. Transportation 2,000 2,000 Confirmed
4. Funeral Expenses 15,000 15,000 Confirmed
5. Loss of Estate - 15,000 Granted
6. Loss of - 40,000 Granted
consortium
7. Loss of love and - 1,60,000 Granted
affection
Total 12,90,000 21,75,424 Enhanced by
Rs.8,85,424/-
13.With the above modification, this Civil Miscellaneous Appeal
is partly allowed and the compensation awarded by the Tribunal at
Rs.12,90,000/- is hereby enhanced to Rs.21,75,424/- together with interest
at 7.5% per annum (excluding the default period, if any) from the date of
petition till the date of deposit. The 2nd respondent/Insurance Company is
directed to deposit the award amount now determined by this Court along
with interest and costs, less the amount already deposited, if any, within a
period of six (6) weeks from the date of receipt of a copy of this
Judgment. On such deposit, the 1st appellant is permitted to withdraw a
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C.M.A.No.2136 of 2023
sum of Rs.7,00,000/- and the appellants 4 and 5 are permitted to
withdraw a sum of Rs.1,00,000 each, along with interest and costs, less
the amount already withdrawn if any. The appellants 2 and 3 are entitled
to share the remaining amount of compensation equally. The share of the
minor appellants 2 and 3 are directed to be deposited in any one of the
Nationalised Bank, till the minors attain majority. The 1st appellant-
mother of the appellants 2 and 3 is permitted to withdraw the accrued
interest once in three months. It is made clear that the appellants are not
entitled to interest for the delay period of 1189 days on the enhanced
amount of compensation as per the order of this Court dated 30.08.2023,
made in C.M.P.No.15014 of 2023 in C.M.A.SR.81985 of 2023. The
appellants are directed to pay the necessary Court fee, if any, on the
enhanced award amount. No costs.
13.09.2023
rst/dpa
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
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C.M.A.No.2136 of 2023
SUNDER MOHAN, J.
rst/dpa
To:
1.The Subordinate Judge,
The Motor Vehicle Accident Tribunal,
Mettur.
2.The Section Officer,
VR Section,
High Court, Madras.
C.M.A.No. 2136 of 2023
13.09.2023
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