Madras High Court
Ramila vs Tamilarasan on 27 September, 2023
CMA No. 2299 / 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal No. 2299 of 2023
1.Ramila
2.Minor Muhilan
3.Minor Mugilarasu
4.Minor Dhanusiya
(Minors rep., by Natural guardian/
mother/Ramila)
5.Thangaponnu ... Appellants
Versus
1. Tamilarasan
2.A.Ayyammal
3.The Oriental Insurance Co.Ltd.,
Siva Complex, II-Floor,
No.22C, Saradha College Main Road,
Salem – 636 016.
(The Respondents-1 & 2 are set remained ex-parte
before the Tribunal. Hence notice may be dispense
with for R-1 & 2 in this appeal) ... 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. 97 of 2019 dated 21.10.2021 on the file of the MACT / I –
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CMA No. 2299 / 2023
Additional District cum Sessions Court, Salem.
For Appellants : Mr. M. Lokesh.
For Respondents : Mr. Elveera ravindran for R3.
R1 & R2 – Ex parte.
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. 97 of 2019 dated 21.10.2021.
2.The claimants/appellants have filed the claim petition stating that
on 28.03.2018 at about 12.30 p.m., while the deceased was riding his
motorcycle in a public road, the car belonging to the first and second
respondents and insured with the third respondent came in a rash and
negligent manner and dashed against the vehicle of the deceased as a
result of which the deceased sustained fatal injuries.
3.The first and second respondents remained ex parte before the
Tribunal.
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CMA No. 2299 / 2023
4.The third 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 marked Ex.P.1 to Ex.P.26.
The third 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 car insured with the third respondent and
directed the third respondent to pay a compensation of Rs.26,01,340/- to
the appellants.
7.The learned counsel for the appellants submitted that though the
appellants had examined PW1 to show that the deceased was running a
concern by name 'Magizhan Traders' which was doing the business of
selling sand and bricks for construction purposes, the Tribunal had fixed
a meagre notional income of Rs.15,000/- per month; that the Tribunal
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CMA No. 2299 / 2023
had erroneously considered only 25% enhancement towards future
prospects; and that the compensation under the head Loss of love and
affection was meagre and prayed for enhancement of compensation.
8.Notice to the first and second respondents has been dispensed
with by order of this Court dated 14.09.2023.
9.The learned counsel for the third respondent, per contra,
submitted that though documents were filed to prove the avocation of the
deceased, no document was filed to prove the income of the deceased.
Therefore, the Tribunal was right in fixing the notional income at
Rs.15,000/- and hence, the learned counsel 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 deceased was aged
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CMA No. 2299 / 2023
36 years at the time of the accident. Ex.P.11 to Ex.P.18 shows that he
was running a concern by name 'Magizhan Traders'. Ex.P.18 is the rental
agreement entered into between the deceased and the land lord of the
premises. All these documents would show that the appellant was doing
the business of selling sand and bricks for construction purposes.
However, there is no document to show the exact income earned by the
deceased. Considering the aforesaid documents, age of the deceased and
the year of the accident, this Court is of the view that it would be
reasonable to fix Rs.18,000/- per month as notional income. Since the
deceased was aged 36 years at the time of the accident, the appellants are
entitled to 40% enhancement towards future prospects and the multiplier
applicable is 15. Since there are four dependents, 1/4th has been deducted
towards personal expenses. Therefore, the compensation under the head
Loss of income would be Rs.18,000 + 7,200(40% of Rs.18,000) =
Rs.25,200/- X 12 X 15 X 3/4 = Rs.34,02,000/-. The Tribunal had
granted only a sum of Rs.40,000/- under the head Loss of love and
affection. However, the appellants 2 to 5 are each entitled to Rs.40,000/-
under the said head. Hence, the same is enhanced to Rs.1,60,000/- and
the first appellant is entitled to Rs.40,000/- under the head Loss of
consortium. The award under the other heads are just and the same are
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CMA No. 2299 / 2023
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 25,31,340 34,02,000 Enhanced
2. Loss of Love and 40,000 1,60,000 Enhanced
Affection
3. Loss of consortium --- 40,000 Granted
4. Funeral Expenses 15,000 15,000 Confirmed
5. Loss of Estate 15,000 15,000 Confirmed
Total 26,01,340 36,32,000 Enhanced by
Rs.10,30,660/-
12.With the above modification, this Civil Miscellaneous Appeal is
partly allowed and the compensation awarded by the Tribunal at
Rs.26,01,340/- is hereby enhanced to Rs.36,32,000/- 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 third 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 permitted to
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CMA No. 2299 / 2023
withdraw Rs.8,45,500/- and the fifth appellant is permitted to withdraw
Rs.2,50,000/- along with proportionate interest and costs, less the amount
if any, already withdrawn. The shares of the minor appellants 2 to 4 of
Rs.8,45,500/- each are directed to be deposited in the interest bearing
Fixed Deposit in any of the Nationalized Bank till they attain 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. 2299 / 2023
ay
To
1.The MACT / I – Additional District cum Sessions Court,
Salem.
2.The Section Officer,
V.R. Section,
High Court of Madras,
Chennai.
C.M.A. No. 2299 of 2023
Dated: 27.09.2023
https://www.mhc.tn.gov.in/judis
