Dhamayanthi vs Mani
2023 Latest Caselaw 13237 Mad

Citation : 2023 Latest Caselaw 13237 Mad
Judgement Date : 27 September, 2023

Madras High Court

Dhamayanthi vs Mani on 27 September, 2023

CMA No. 2282 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.09.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No. 2282 of 2023

1. Dhamayanthi
2. Dharmalingam
3. Tamilpriya ... Appellants

Versus

1. Mani

2. Oriental Insurance Co., Ltd.,
Kumar Complex, 1st Floor, 146,
West Car Street, Tiruchengode, Namakkal District. ... Respondents

PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree dated
28.09.2022 made in M.C.O.P. No.83 of 2016 on the file of the Motor
Accidents Claims Tribunal, Subordinate Judge Court, Tiruchengode.

For Appellant : Mr.T.S.Arthanareeswaran

For Respondents : Mr.EL Veera Ravindran (for R2)
R1-Dispensed with

JUDGMENT

The claimants have preferred the instant appeal seeking https://www.mhc.tn.gov.in/judis

CMA No. 2282 of 2023

enhancement of compensation.

2. The appellants/claimants filed the claim petition stating that on

14.09.2015 at about 9.30pm, while the deceased was travelling in his

two-wheeler in a public road, the bike belonging to the 1st respondent and

insured with the 2nd respondent came in a rash and negligent manner and

dashed against the two-wheeler of the deceased, 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. The 2nd respondent filed the counter

stating that the accident took place only due to the negligence of the

deceased and that in any case, the compensation claimed is excessive and

prayed for dismissal of the claim petition.

4. Before the tribunal, the appellants/claimants examined PW1 and

PW2 and marked Ex.P1 to P12. The 2 nd respondent examined RW1 and

marked Ex.R1 to Ex.R3.

5. The tribunal after taking into consideration the oral and https://www.mhc.tn.gov.in/judis

CMA No. 2282 of 2023

documentary evidence, held that the accident took place only due to the

rider of the two-wheeler insured with the 2nd respondent and directed the

2nd respondent to pay a sum of Rs.18,13,000/- as compensation to the

appellants/claimants.

6. The learned counsel for the appellants/claimants submitted that

though the appellants have established that the deceased was working as

a Painter, the tribunal fixed a meagre notional income of Rs.8,000/- per

month, which requires enhancement. Learned counsel further submitted

that the appellants each are entitled to Rs.40,000/- towards loss of filial

consortium/love and affection and the tribunal had not awarded any

compensation under the said head.

7. Since the 1st respondent remained ex parte before the tribunal,

the learned counsel for the appellants made an endorsement to dispense

with the notice to the 1st respondent. Hence, notice to 1st respondent is

dispensed with.

8. The learned counsel for the 2nd respondent-Insurance Company

per contra submitted that the award of the tribunal is just and reasonable https://www.mhc.tn.gov.in/judis

CMA No. 2282 of 2023

in the absence of any documentary evidence to prove the avocation and

income of the deceased and therefore, the learned counsel prayed for

dismissal of the appeal.

9. The only question in the instant appeal is whether the

compenation awarded by the tribunal is just and reasonable?

10. On perusal of the records, it is seen that the appellants have

examined PW1-mother of the deceased, who has deposed that the

deceased was working as a painter and earned Rs.15,000/- per month.

However, no document was filed to either prove the avocation or income

of the deceased. Considering the age and avocation of the deceased and

the year of the accident, this Court is of the view that it would be just and

reasonable to fix the notional income of the deceased at Rs.12,000/- per

month. As the deceased was aged 21 years, the appellants are entitled to

40% enhancement towards future prospects i.e. Rs.12,000/- + Rs.4,800/-

= Rs.16,800/-. Thus, the loss of dependency is computed as under:

Rs.16,800/- x 12 x 18 x ½ = Rs.18,14,400/-

11. The tribunal has not awarded any amount under the head loss

of filial consortium to parents and loss of love and affection to sister. https://www.mhc.tn.gov.in/judis

CMA No. 2282 of 2023

Hence, a sum of Rs.80,000/- i.e. Rs.40,000/- to each of the appellants 1

and 2, is awarded under the head loss of filial consortium and

Rs.40,000/- under the head loss of love and affection is awarded to the 3 rd

appellant.

12. The award under other heads are just and reasonable and the

same are confirmed. Thus, the award of 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 dependency                12,09,600      18,14,400     Enhanced
                        2. Loss of estate                      16,500/-       16,500/-    Confirmed
                        3. Funeral expenses                    16,500/-       16,500/-    Confirmed
                        4. Transportation                       5,000/-        5,000/-    Confirmed
                        5. Medical expenses                  5,65,055/-     5,65,055/-    Confirmed
                        6. Loss of filial consortium               -----      80,000/-     Granted
                           to parents/appellants 1 and
                           2 @ Rs.40,000/- each
                        7. Loss of love and affection               ----      40,000/-     Granted
                           to 3rd appellant
                              Total                         18,12,655/- 25,37,455/- Enhanced by
                              Rounded off to                18,13,000/- 25,37,500/- Rs.7,24,500/-

13.With the above modification, this Civil Miscellaneous Appeal

https://www.mhc.tn.gov.in/judis

CMA No. 2282 of 2023

is partly allowed and the compensation awarded by the Tribunal at

Rs.18,13,000/- is hereby enhanced to Rs.25,37,500/- together with

interest at 7.5% per annum (excluding the default period if any) from the

date of petition till the date of deposit. Out of the modified compensation,

the 1st appellant/mother is entitled to Rs.20,37,500/- and the 2nd

appellant/father and 3rd appellant/sister are entitled to Rs.2,50,000/- each.

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 period of six (6) weeks