Madras High Court
Thaiyalnayagi vs M. Babbi on 26 September, 2023
CMA No. 940 / 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal No. 940 of 2023
1.Thaiyalnayagi
2.Ravi
3.Murugesan
4.Manjula
5.Panjavarnam ... Appellants
Versus
1.M. Babbi
2.The Oriental Insurance co.Ltd.,
No.115/116, Prakasam Salai,
Chennai – 600 118. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree in M.C.O.P.
No. 6745 of 2018 dated 20.01.2023 on the file of the Motor Accidents
Claims Tribunal III Judge, Small Causes Court, Chennai.
For Appellants : Mr. S. Prabhu.
For Respondents : Mr. T.K. Premkumar for R2.
No appearance for R1.
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CMA No. 940 / 2023
JUDGMENT
The claimants have preferred the instant appeal seeking
enhancement of compensation in the award passed by the Tribunal in
M.C.O.P. No.6745 of 2018 dated 20.01.2023.
2.The appellants filed the claim petition stating that on 29.07.2018,
at about 08.30 hrs, while the deceased was walking on a public road, an
Eicher vehicle belonging to the first respondent and insured with the
second respondent came in a rash and negligent manner and dashed the
deceased as a result of which the deceased sustained fatal injuries.
3.The first respondent remained ex parte before the Tribunal.
4.Before the Tribunal, the second respondent filed counter stating
that the accident took place only due to the negligence of the deceased;
and that in any case, the compensation claimed was excessive and prayed
for dismissal of the appeal.
5.The appellants examined PW1 and PW2 and marked Ex.P.1 to
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CMA No. 940 / 2023
Ex.P.21. The second respondent neither examined any witness nor
marked any document.
6.The Tribunal after taking into consideration the oral and
documentary evidence held that the accident took place due to the rash
and negligent driving of the driver of the vehicle insured with the second
respondent and directed the second respondent to pay a compensation of
Rs.7,34,000/- to the appellants.
7.The learned counsel for the appellants submitted that though the
deceased was working as a Security person and was earning a sum of
Rs.15,000/- per month, the Tribunal fixed meagre notional income of
Rs.8,000/- and prayed for enhancement.
8.Though notice has been served on the first respondent, none has
entered appearance on his behalf.
9.The learned counsel for the second respondent, per contra,
submitted that the compensation awarded by the Tribunal is just and
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CMA No. 940 / 2023
reasonable; and that the Tribunal, in fact, had awarded excessive
compensation by deducting 1/4th towards personal expenses, when the
appellants 2 to 5 are married children of the deceased and they were not
dependents of the deceased.
10.The only question that arises for consideration in the instant
appeal is whether the compensation awarded by the Tribunal is just and
reasonable.
11.On perusal of the records, it is seen that the deceased was aged
65 years at the time of the accident. Though PW1 had deposed that the
deceased was working as a Security person in a company by name
M/s.Banu Moulding Company and was earning Rs.15,000/- per month,
no document was produced to substantiate his income. However,
considering the fact that the deceased was employed, his age and the year
of the accident, this Court is of the view that it would be just and
reasonable to fix the notional income at Rs.12,000/-. Since the deceased
was aged 65 years at the time of the accident, the multiplier applicable is
7. The appellants 2 to 5 are married children of the deceased and hence,
they cannot be said to be fully dependent on the deceased. Therefore, the
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CMA No. 940 / 2023
Tribunal ought to have deducted 1/3rd towards personal expenses.
Therefore, the Loss of Dependency has to be Rs.12,000 X 12 X 7 X 2/3 =
Rs.6,72,000/-. The award under the other heads are just and the same
are confirmed. Thus, the award of the Tribunal is modified as follows;
S. Description Amount Amount Award
No awarded awarded by confirmed or
by this Court enhanced or
Tribunal (Rs) granted
(Rs)
1. Loss of Dependency 5,04,000 6,72,000 Enhanced
2. Loss of Consortium 2,00,000 2,00,000 Confirmed
3. Loss of Estate 15,000 15,000 Confirmed
4. Funeral Expenses 15,000 15,000 Confirmed
Total 7,34,000 9,02,000 Enhanced by
Rs.1,68,000/-
12.With the above modification, this Civil Miscellaneous Appeal
is partly allowed and the compensation awarded by the Tribunal at
Rs.7,34,000/- is hereby enhanced to Rs.9,02,000/- 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 is directed to
deposit the award amount now determined by this Court along with
proportionate 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 first appellant is entitled to
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CMA No. 940 / 2023
withdraw Rs.7,00,000/- and the second to fifth appellants are entitled to
withdraw Rs.50,500/- each 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.
26.09.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
1. The Motor Accidents Claims Tribunal
III Judge, Small Causes Court,
Chennai.
2.The Section Officer,
V.R. Section,
High Court of Madras,
Chennai.
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CMA No. 940 / 2023
SUNDER MOHAN, J
ay
C.M.A. No. 940 of 2023
Dated: 26.09.2023
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