Madras High Court
Kavitha vs K. Kumar on 20 September, 2023
C.M.A. No. 2237 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2023
CORAM :
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.2237 of 2023
Govindasamy (Died)
Kavitha ... Appellant
Vs.
1.K. Kumar
2.New India Assurance Co. Ltd.,
Paramathy Road, Namakkal Town. ... Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated 22.09.2022
made in MCOP. No.692 of 2013 on the file of Motor Accident Claims
Tribunal / Additional District Court at Namakkal.
For Appellant : Mr. M. Lokesh
For Respondents : Mr. A. Salomi, for R2
R1 – Ex parte
1/7
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C.M.A. No. 2237 of 2023
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the claimant
seeking enhancement of compensation granted by the Tribunal in the award
dated 22.09.2022, made in M.C.O.P. No.692 of 2013 on the file of the Motor
Accident Claims Tribunal, Additional District Court, Namakkal.
2. The appellant along with her husband filed a claim petition stating
that their son aged 6 years while travelling in two wheeler on 24.06.2012 at
about 3.00 pm ridden by the husband of the appellant, the driver of the mini
bus insured with the second respondent herein came in a rash and negligent
manner and dashed against the vehicle in which the deceased travelled, as a
result of which he sustained fatal injuries.
3. The claim petition was tried along with two other claim petitions.
The appellant herein examined herself as PW.1 and marked Ex.P1 to Ex.P15.
The second respondent examined RW.1 and RW.2 and marked Ex.R1.
Further, Ex.X1 and Ex.X2 were also marked as witness documents.
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C.M.A. No. 2237 of 2023
4. The Tribunal, after taking into consideration the oral and
documentary evidence, awarded a total compensation of Rs.5 lakhs to the
appellant.
5. The learned counsel for the appellant submitted that the income
fixed by the Tribunal at Rs.30,000/- per annum is meagre and prayed for
enhancement. Further, the Tribunal had not granted any compensation under
the head loss of estate and funeral expenses.
6. Since R1 remained ex parte before the Tribunal, the learned counsel
for the appellant made an endorsement to dispense with notice to the first
respondent.
7. The learned counsel for the second respondent per contra submitted
that the award of the Tribunal is just and reasonable and no interference is
called for. Hence, the learned counsel prayed for dismissal of the appeal.
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C.M.A. No. 2237 of 2023
8. On perusal of the records, it is seen that the deceased was aged 6
years at the time of accident. The notional income fixed by the Tribunal at
Rs.30,000/- per annum is meagre. The learned counsel for the appellant relied
upon the judgment of this Court in J.Kanagaraj and other vs. Metropolitan
Transport Corporation Ltd., reported in 2017 (2) TN MAC 702 in support of
the submission that Rs.60,000/- per annum can be fixed as annual income.
This Court is of the view that fixation of income will depend on facts and
circumstances of each case. In the facts, it would be just and reasonable to fix
Rs.45,000/- per annum as notional annual income of the deceased. The
multiplier applicable is ‘15’. Hence, the appellant is entitled to Rs.6,75,000/-
under the head loss of dependency. Though the first claimant is no more, the
surviving appellant-parent (mother) is entitled to compensation under the
head Filial consortium at Rs.80,000/- as the father who was alive on the date
of claim petition was also entitled to filial consortium and the same is
enhanced to Rs.80,000/-. The appellant is also entitled to award of
compensation under the head loss of estate at Rs.15,000/- and funeral
expenses at Rs.15,000/-. Thus, the compensation awarded by the Tribunal is
enhanced from Rs.5,00,000/- to Rs.7,85,000/-, break-up is as follows -
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C.M.A. No. 2237 of 2023
Sl. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of dependency 4,50,000/- 6,75,000/- Enhanced
2. Conventional heads
i)Loss of loss and Set aside
affection 50,000/-
ii) Funeral expenses
3. Filial consortium - 80,000/- Awarded
4. Loss of estate - 15,000/- Awarded
Funeral expenses 15,000/- Awarded
Total 5,00,000/- 7,85,000/- Enhanced
by Rs.2,85,000/-
The finding of the Tribunal directing the second respondent to pay and
recover the compensation from the first respondent is confirmed.
9. With the above modification, this Civil Miscellaneous Appeal is
partly allowed and the compensation awarded by the Tribunal at
Rs.5,00,000/- is hereby enhanced to Rs.7,85,000/- together with interest at
7.5% per annum from the date of petition till the date of deposit. It is made
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C.M.A. No. 2237 of 2023
clear that the appellant is not entitled for any interest for the delay period on
the amount of Rs.2,85,000/- enhanced by this Court as per the order of this
Court dated 07.09.2023 made in C.M.P.No.18399 of 2023 in
C.M.A.SR.No.102632 of 2023. The second respondent 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 a receipt of copy of this Judgment at the first instance
and recover the same from the first respondent. On such deposit, the appellant
is permitted to withdraw the award amount along with interest and costs, less
the amount if any, already withdrawn. The appellant is directed to pay the
necessary Court Fee, if any, on the enhanced award amount. No costs.
20.09.2023
Index: Yes/No
Neutral Citation: Yes / No
AT
https://www.mhc.tn.gov.in/judis
C.M.A. No. 2237 of 2023
SUNDER MOHAN, J.
AT
To
1.The Motor Accident Claims Tribunal,
Additional District Court at Namakkal.
2.The Section Officer,
VR Section,
High Court, Madras.
C.M.A.No.2237 of 2023
20.09.2023
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