Madras High Court
Indhumathi vs D.Elangovan on 25 September, 2023
C.M.A.No.759 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
C.M.A.No.759 of 2022
1.Indhumathi
2.Minor Monika,
Rep. by Natural Guardian/Mother Indhumathi
3.Annapoorani ... Appellants
Versus
1.D.Elangovan
2.The Manager,
ICICI Lombard General Insurance Company Ltd.,
Chottabhai Centre,
No.140, Nungambakkam High Road,
Chennai – 34. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, against the judgment and decree dated 02.08.2019
passed in M.C.O.P.No.1046 of 2016, on the file of the Motor Accident
Claims Tribunal, Additional District Court, (FTC), Kanchipuram.
For Appellants : Mr.M.Lokesh
For R2 : Mr.P.Nagesh
JUDGMENT
The instant appeal has been filed by the appellants/claimants
seeking enhancement of compensation.
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C.M.A.No.759 of 2022
2.The appellants have filed the claim petition stating that on
13.09.2016 at about 6.00 p.m., while the deceased was driving his auto
on a state highway, the bus insured with the 2nd respondent herein came
in a rash and negligent manner, dashed against the auto; that as a result of
which, the deceased sustained fatal injuries.
3.The 1st respondent-owner of the offending vehicle remained ex-
parte before the Tribunal.
4.The 2nd respondent filed a counter stating that the accident took
place only due to the negligence of the deceased and that in any case, the
compensation claimed by the appellants was excessive and prayed for
dismissal of the claim petition.
5.Before the Tribunal, on behalf of the appellants, two witnesses
were examined and Exs.P1 to P7 were marked. The 2 nd respondent
neither examined any evidence 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
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C.M.A.No.759 of 2022
driver of the bus insured with the 2nd respondent and directed the 2nd
respondent to pay a sum of Rs.11,20,000/- as compensation to the
appellants.
7.The learned counsel for the appellants submitted that though the
appellants had established that the deceased was an auto driver and he
owned an auto, the Tribunal had fixed a meagre notional income of
Rs.7500/- and hence, prayed for enhancement of compensation.
8.Since the 1st respondent remained ex-parte before the Tribunal,
the learned counsel for the appellants requested this Court to dispense
with notice to the 1st respondent and he had also filed a memo to that
effect. Hence, notice to the 1st respondent is dispensed with.
9.The learned counsel for the 2nd respondent per contra submitted
that the award of the Tribunal is just and reasonable; that the appellants
had withdrawn the award amount deposited by the 2nd respondent and
thereafter, they have preferred the instant appeal and hence, the appeal is
liable to be dismissed.
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C.M.A.No.759 of 2022
10.The only question involved in the instant appeal is whether the
compensation awarded by the Tribunal is just and reasonable?
11.On perusal of records, it is seen that though P.W.1 – wife of the
deceased deposed before the Tribunal that the deceased owned an auto
and was as an auto driver also. However, no document was produced to
establish the same. The learned counsel for the appellants produced the
RC book to show that the deceased owned an Auto. However, the said
document cannot be taken into consideration since it was not filed before
the Tribunal. Considering the age of the deceased, his avocation and the
year of accident, this Court is of the view that, it would be just and
reasonable to fix the notional income of the deceased at Rs.14,000/- per
month. Since the deceased was 44 years at the time of accident, the
appellants are entitled to 25% enhancement towards future prospects.
The multiplier applicable is 14. After deducting 1/3rd towards personal
expenses, the compensation under the head loss of income would be as
follows:
Rs.17,500/- (Rs.14000 + 25%) X 12 X 14 X 2/3 = Rs.19,60,000/-
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C.M.A.No.759 of 2022
The appellants 2 and 3 are entitled to compensation under the head loss
of love and affection at the rate of Rs.40,000/- each. The amount 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:-
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of Income 10,50,000 19,60,000 Enhanced
2. Funeral Expenses 15,000 15,000 Confirmed
3. Loss of 40,000 40,000 Confirmed
Consortium
4. Loss of Estate 15,000 15,000 Confirmed
5. Loss of Love and - 80,000 Granted
Affection
Total 11,20,000 21,10,000 Enhanced by
Rs.9,90,000/-
12.With the above modification, this Civil Miscellaneous Appeal
is partly allowed and the compensation awarded by the Tribunal at
Rs.11,20,000/- is hereby enhanced to Rs.21,10,000/-, 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 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
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C.M.A.No.759 of 2022
period of six (6) weeks from the date of receipt of a copy of this
Judgment. On such deposit, the appellants 1 and 3 are permitted to
withdraw their respective share of the award amount now determined by
this Court, as per the apportionment fixed by the Tribunal along with
proportionate interest and costs, less the amount if any, already
withdrawn. The share of the minor 2nd appellant is directed to be
deposited in any one of the Nationalised Bank, till the minor attains
majority. The 1st appellant- mother of the minor 2nd appellant is permitted
to withdraw the accrued interest once in three months. . The appellants
are directed to pay the necessary Court fee, if any, on the enhanced award
amount. No costs.
25.09.2023
rst/dpa
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
https://www.mhc.tn.gov.in/judis
C.M.A.No.759 of 2022
To:
1.The Additional District Judge,
The Motor Vehicle Accident Tribunal,
Fast Track Court, Kanchipuram.
2.The Section Officer,
VR Section,
High Court, Madras.
SUNDER MOHAN, J.
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C.M.A.No.759 of 2022
rst/dpa
C.M.A.No.759 of 2022
25.09.2023
https://www.mhc.tn.gov.in/judis
