Madras High Court
Pachaiyammal vs Sabarinathan on 22 September, 2023
C.M.A.No.1876 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
C.M.A.No.1876 of 2022
1.Pachaiyammal
2.Sathishkumar
3.Chandira
4.Shanthi Appellants
Vs
1.Sabarinathan
2.United India Insurance Company Limited,
Divisional Office, Aurobindo Road,
Block 19, Neyveli -3. Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, against the fair and decretal award passed by the
learned III Additional District and Sessions Judge, Cuddalore at
Vridhachalam (Motor Accident Claims Tribunal) dated 21.03.2022 in
MCOP.No.294 of 2020.
For appellants : Mr.S.Udhayakumar
For R2 : Mr.J.Micheal Visuvasam
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C.M.A.No.1876 of 2022
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellants challenging the quantum of compensation granted by the
Tribunal in the award dated 21.03.2022, made in M.C.O.P.No.294 of
2020 on the file of the Motor Accident Claims Tribunal, III Additional
District and Sessions Judge, Cuddalore at Vridhachalam.
2. The appellants filed M.C.O.P. No.294 of 2020 on the file of the
Motor Accident Claims Tribunal, III Additional District and Sessions
Judge, Cuddalore at Vridhachalam claiming a sum of Rs.20,00,000/- as
compensation for the death of one Poomalai, who died in the accident
that took place on 12.11.2020.
3.According to the appellants, on 12.11.2020 at about 6.45 p.m.,
when the deceased was walking on a public road, the first respondent/
rider of the two wheeler bearing registration No.TN 81 EZ 3790, insured
with the second respondent, came in a rash and negligent manner and hit
the deceased; and as a result, the deceased sustained fatal injuries.
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C.M.A.No.1876 of 2022
4. The first respondent, who is the owner of the two wheeler,
remained ex-parte before the Tribunal.
5.The second respondent filed a counter stating that the accident
took place only due to the negligence of the deceased and in any event,
the compensation claimed by the appellants is excessive and prayed for
dismissal of the claim petition.
6.Before the Tribunal, the second appellant examined himself as
P.W.1 and marked 10 documents as Exs.P1 to P.10. The second
respondent/Insurance did not let in any oral and documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
riding by the first respondent and directed the second respondent being
insurer of the two wheeler to pay a sum of Rs.3,25,000/- as compensation
to the appellants.
8.The learned counsel for the appellants submitted that the
Tribunal has not awarded any compensation towards love and affection
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C.M.A.No.1876 of 2022
for the appellants 2 to 4, who are the children of the deceased and the
notional income fixed by the Tribunal is also very meagre. Hence, he
prayed for enhancement of compensation.
9. The first respondent remained ex parte before the Tribunal and
hence, the learned counsel for the appellants submitted that notice to the
first respondent may be dispensed with. Hence, notice to R1 is dispensed
with.
10. Per contra, the learned counsel for the second respondent
submitted that the deceased was aged 78 years and there is no proof to
show that he had any avocation and earning, at the time of accident. The
appellants 2 to 4 are not the dependents of the deceased and the
deduction of 1/4th towards personal expenses is erroneous and as such,
the compensation is excessive 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?
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C.M.A.No.1876 of 2022
12. On perusal of the records, it is seen that the deceased was aged
78 years at the time of accident. The appellants had established that the
deceased was working as a helper, through the evidence of PW.1, the son
of the deceased. However, they have not produced any document to
prove the avocation and income of the deceased at the time of accident.
Considering the age of the deceased, the Tribunal has fixed his notional
income as Rs.6,000/- per month. Since the deceased was 78 years, the
notional income cannot be fixed in the same manner as it is fixed for any
other able bodied adults. At the same time, this Court is of the view that
it would be just and reasonable to fix the notional income of the deceased
at Rs.9,000/- per month. It is seen that the appellants 2 to 4 cannot be
treated as dependents. However, the first appellant was a dependent of
the deceased. Therefore, this Court is of the view that it would be just
and reasonable to deduct 1/3rd of his income towards the personal
expenses of the deceased. Hence, the compensation awarded by the
Tribunal towards loss of income is modified as follows:
Rs.9,000/- x 12 x 5 x 2/3 = Rs.3,60,000/-
13. The first appellant is entitled to loss of consortium at
Rs.44,000/-. The appellants 2 to 4 are each entitled for an amount of
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C.M.A.No.1876 of 2022
Rs.44,000/- towards loss of love and affection. Therefore, Rs.1,32,000/-
is awarded under the said head. The Tribunal has not awarded any
amount towards loss of estate and hence, a sum of Rs.16,500/- is hereby
awarded towards loss of estate. The compensation awarded under the
head funeral expenses is enhanced to Rs.16,500/- [10% enhancement is
granted on the conventional heads as per the decision of the Hon'ble
Supreme Court in the case of National Insurance Co. Ltd., Vs. Pranay
Sethi and others reported in 2017 (2) TN MAC 609 (SC)]. Thus, the
compensation awarded by the Tribunal is modified as follows:
Sl. Description Amount Amount Award
No awarded by awarded confirmed or
Tribunal by this enhanced or
(Rs) Court (Rs) granted
1. Loss of income 2,70,000/- 3,60,000/- Enhanced
2. Loss of estate - 16,500/- Granted
3. Loss of consortium - 44,000/- Granted
4. Loss of love and 40,000/- 1,32,000/- Enhanced
affection to the (44,000x3)
appellants 2 to 4
5. Funeral expenses 15,000/- 16,500/- Reduced
Total 3,25,000/- 5,69,000/- Enhanced by
Rs.2,44,000/-
14. With the above modification, this Civil Miscellaneous Appeal
is partly allowed and the compensation awarded by the Tribunal at
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C.M.A.No.1876 of 2022
Rs.3,25,000/- is hereby enhanced to Rs.5,69,000/- 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 second 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 a
receipt of copy of this Judgment. On such deposit, the appellants 2 to 4
are each permitted to withdraw a sum of Rs.50,000/- of the award amount
and the first appellant is permitted to withdraw the remaining amount
along with proportionate interest and costs, less the amount if any,
already withdrawn. The appellants are directed to pay the necessary
Court Fee, if any, on the enhanced award amount. No costs.
22.09.2023
vkr
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
SUNDER MOHAN, J.
vkr
https://www.mhc.tn.gov.in/judis
C.M.A.No.1876 of 2022
To:
1.The Motor Vehicle Accident Tribunal,
III Additional District and Sessions Judge,
Cuddalore at Vridhachalam.
2.The Section Officer,
VR Section, High Court, Madras.
C.M.A.No.1876 of 2022
22.09.2023
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