Madras High Court
Sheela vs K. Gunasekaran on 27 September, 2023
CMA No. 2357 / 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal No. 2357 of 2023
1.Sheela
2.Minor Mithran
3.Mageswari
(Minor 2nd appellant rep., by mother guardian
NF Sheela the 1st petitioner herein) ... Appellants
Versus
1.K. Gunasekaran
2.The Divisional Manager,
United India Insurance Company Ltd.,
No.13A, Nethaji Road,
Cuddalore – 607 001. ... 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. 1367 of 2020 dated 28.02.2023 on the file of the Motor Accident
Claims Tribunal / I Additional District & Sessions Judge (FAC)
Cuddalore.
For Appellants : Ms. N. Keerthana for
Ms. Ramya V. Rao.
For Respondents : Mrs. R. Sreevidhya for R2.
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CMA No. 2357 / 2023
R1 – Dispensed with.
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. 1367 of 2020 dated 28.02.2023.
2.The appellants filed the claim petition stating that on 19.10.2020
at about 13 hrs, while the deceased was riding a two wheeler in a public
road, the bus belonging to the first respondent and insured with the
second respondent came in a rash and negligent manner and dashed
against the two wheeler, as a result of which the deceased sustained fatal
injuries.
3.The first respondent remained ex parte before the Tribunal.
4.The second 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 was excessive and prayed for dismissal
of the appeal.
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CMA No. 2357 / 2023
5.The appellants examined PW1 to PW3 and marked Ex.P.1 to
Ex.P.20. 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
negligence of the driver of the bus insured with the second respondent
and directed the second respondent to pay a compensation of
Rs.26,95,000/- to the appellants.
7.The learned counsel for the appellants submitted that the award
of compensation requires enhancement since the Tribunal fixed a very
low notional income of Rs.15,000/-, though the appellants had
established the fact that the deceased was working as Potter (clay utensil
and toys manufacturing) and hence, prayed for enhancement.
8.Notice to the first respondent has been dispensed with by order
of this Court dated 30.08.2023.
9.The learned counsel for the second respondent, per contra,
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CMA No. 2357 / 2023
submitted that the compensation awarded by the Tribunal is just and
reasonable in the absence of any evidence to prove either the avocation
or income of the deceased and hence prayed for dismissal of the appeal.
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 appellants had
examined PW1, wife of the deceased to prove the avocation of the
deceased. The appellants had also marked Ex.P.20 salary certificate
issued by the employer of the deceased who was running a handcraft
centre. However, it is seen that no other document such as Bank
Statement have been filed to corroborate the evidence of PW3, employer
of the deceased. Therefore, the Tribunal was right in fixing the notional
income. However, this Court is of the view that considering the age,
avocation and the year of the accident, it would be just and reasonable to
fix the notional income at Rs.17,000/-. Since the deceased was aged 37
years at the time of the accident, the appellants are entitled to 40%
enhancement towards future prospects and the multiplier applicable is
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CMA No. 2357 / 2023
15. Therefore, the compensation under the head loss of income would be
Rs.17,000 + Rs.6,800 (40% of Rs.17,000) = Rs.23,800 X 12 X 15 X 2/3
(1/3 deducted towards personal expenses) = Rs.28,56,000/-. 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 confirmed or
by by this enhanced or
Tribunal Court (Rs) granted
(Rs)
1. Loss of income 25,20,000 28,56,000 Enhanced
2. Loss of spousal 44,000 44,000 Confirmed
consortium
3. Loss of parental 44,000 44,000 Confirmed
consortium
4. Loss of filial 44,000 44,000 Confirmed
consortium
5. Loss of estate and 33,000 33,000 Confirmed
funeral expenses
6. Transportation charges 10,000 10,000 Confirmed
Total 26,95,000 30,31,000 Enhanced by
Rs.3,36,000/-
12.With the above modification, this Civil Miscellaneous Appeal is
partly allowed and the compensation awarded by the Tribunal at
Rs.26,95,000/- is hereby enhanced to Rs.30,31,000/- together with
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CMA No. 2357 / 2023
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 appellants 1 and 3 are permitted
to withdraw their respective shares of the award amount along with
proportionate interest and costs, less the amount if any, already
withdrawn, as per the apportionment fixed by the Tribunal. The share of
the minor second appellant is directed to be deposited in any of the
nationalized bank in a interest bearing Fixed Deposit till he attains
majority and the first appellant is permitted to withdraw the accrued
interest once in every six months. The appellants are directed to pay the
necessary Court fee if any on the enhanced award amount. No costs.
27.09.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
SUNDER MOHAN, J
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CMA No. 2357 / 2023
ay
To
1.The Motor Accident Claims Tribunal,
I Additional District & Sessions Judge (FAC),
Cuddalore.
2.The Section Officer,
V.R. Section,
High Court of Madras,
Chennai.
C.M.A. No. 2357 of 2023
Dated: 27.09.2023
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