Madras High Court

Dhandapani vs The President on 9 August, 2024

                                                                 C.M.A.(MD) No.978 of 2024

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED : 09.08.2024

                                                  CORAM

                                  THE HON'BLE MR.JUSTICE SUNDER MOHAN

                                         C.M.A.(MD) No.978 of 2024

                    1.Dhandapani
                      S/o.Dhasan Nayakkar

                    2.Angalaeswari
                      W/o.Karuppasamy

                    3.Ramuthai
                      W/o.Ganesan

                    4.Muniyammal
                      W/o.Rajendran

                    5.Sivanjyothi
                      W/o.Gurunathan

                    6.Lakshmana Kumar
                      S/o.Dhandapani                                   ... Appellants

                                                     Vs.

                    1.The President,
                      Seva Bharathi,
                      Govindam Koil Road,
                      Kottaiyam,
                      Kerala State.

                    2.The Branch Manager,
                      The United India Insurance Company Ltd.,
                      GeethaTrade Center,

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                    Page No. 1 of 10
                                                                          C.M.A.(MD) No.978 of 2024


                       M.C.Road, Nagambadome,
                       Kottaiyam,
                       Kerala State.                                            ... Respondents

                       [R1 was set exparte before the lower court]

                    Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
                    Vehicles Act, 1988 praying to enhance the compensation awarded in
                    M.C.O.P.No.668 of 2019 dated 09.01.2024 on the file of the Motor
                    Accident Claims Tribunal, Additional District Judge, Dindigul.


                                    For Appellants    : Mr.S.Pugalendhi

                                    For R2            : Mr.J.S.Murali


                                                     JUDGMENT

This Civil Miscellaneous Appeal has been filed by the claimants

seeking enhancement of compensation awarded by the Motor Accident

Claims Tribunal (Additional District Court) Dindigul in M.C.O.P.No.668

of 2019 vide its Judgment and Decree dated 09.01.2024.

2. Since the first respondent, the owner of the offending vehicle,

had remained exparte before the Tribunal, notice to the first respondent is

dispensed with.

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3. The appellants/claimants filed a claim petition in M.C.O.P.No.

668 of 2019 before the Tribunal, stating that on 17.01.2018 at about 12.00

p.m., while the deceased was travelling along with the

appellants/claimants in their car bearing Registration No.TN-07-

AY-2791, an ambulance van bearing Registration No.KL-05-AG-7354

owned by the first respondent and insured with the second respondent

Insurance Company came in the opposite direction in a rash and negligent

manner and dashed against the car, as a result of which, the deceased

sustained grievous injuries and succumbed to the injuries.

4. Before the Tribunal, the first respondent owner of the ambulance

van had remained exparte. The second respondent Insurance Company

had filed counter stating that the accident did not take place due to the

negligence of the insured ambulance van; that the claim made by the

claimants is excessive and prayed for dismissal of the claim petition.

5. Before the Tribunal, the first appellant/first claimant has

examined himself as P.W.1 and the appellant/claimants marked Exs.P1 to

P7. The respondents have neither examined any witnesses nor marked any

documents.

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6. The Tribunal after taking into consideration of oral and

documentary evidence held that the accident took place due to the rash

and negligent driving of the driver of the insured ambulance van and

awarded a compensation of Rs.13,05,000/- payable by the second

respondent Insurance Company to the appellants/claimants.

7. In the instant appeal, the appellants/claimants seek for

enhancement of the aforesaid compensation.

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

though they had established the avocation of the deceased, the Tribunal

had fixed meagre notional income of Rs.8,000/- per month; that the

compensation awarded by the Tribunal under the head of loss of love and

affection, amounting to Rs.15,000/- each for the second to sixth

appellants/second to sixth claimants, is contrary to the settled law and

therefore sought for enhancement.

9. The learned counsel for the second respondent Insurance

Company, per contra, submitted that the appellants/claimants have neither

established the avocation nor the income of the deceased and in such

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circumstances, the notional income fixed by the Tribunal at Rs.8,000/- per

month is just and reasonable; that the compensation under other heads is

also reasonable and no interference is called for.

10. The only question involved in the instant appeal is whether the

compensation awarded by the Tribunal is just and reasonable?

11. The accident is of the year 2018. The first appellant/first

claimant who is the husband of the deceased had examined himself as

P.W.1. He had deposed that the deceased was selling vegetables and was

earning a monthly income of Rs.15,000/-. However, no document has

been produced to substantiate the income earned by the deceased.

12. Considering the fact that the appellants/claimants have

established the avocation of the deceased and the fact that the accident is

of the year 2018, this Court is of the view that it would be just and

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

Admittedly, the deceased was aged about 50 years at the time of accident

and hence, income towards future prospects has to be added at 25% and

the multiplier applicable is 13. In view of number of dependents, 1/4 th of

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the income has to be deducted towards personal expenses. Therefore, the

compensation awarded under the head of loss of income is modified as

follows:-

(Age of the deceased - 50)

Notional Monthly Income : Rs.12,000/-


                    Add: Future Prospects at 25%
                         [Rs.12,000/- x 25/100]            : Rs. 3,000/-
                                                           -----------------
                                                           : Rs.15,000/-

                    Less : Personal Expenses at 1/4th
                          [Rs.15,000/- x ¼]                : Rs. 3,750/-
                                                           -----------------
                                                           : Rs.11,250/-

                    Annual contribution to the family
                    [Rs.11,250/- x 12]                            - Rs.1,35,000/-

                    Multiplier - 13 [Rs.1,35,000/- x 13]                       - Rs.17,55,000/-

13. The award under the head of funeral expenses and transport

charges is confirmed. The Tribunal has awarded a sum of Rs.40,000/- to

the first appellant/first claimant under the head of 'loss of consortium' and

Rs.15,000/- each to the second to sixth appellants/second to sixth

claimants under the head of 'loss of love and affection'. The Tribunal

ought to have also awarded the compensation of Rs.40,000/- each to the

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second to sixth appellants/second to sixth claimants under the head of

'loss of consortium' instead of 'loss of love and affection'. Rs.2,00,000/-

(Rs.40,000/- x 5) is awarded under the head of 'loss of consortium' to the

second to sixth appellants/second to sixth claimants. Compensation

awarded to the first appellant/first claimant under the head of 'loss of

consortium' is confirmed. The Tribunal has not awarded any

compensation under the head of 'loss of estate'. Therefore, Rs.15,000/- is

awarded under the head of 'loss of estate'.

14. The compensation awarded by the Tribunal is enhanced as

follows:-

                     Sl.          Description          Amount           Amount               Award
                     No                               awarded by      awarded by           confirmed,
                                                     the Tribunal      this Court      deleted, enhanced
                                                                                           or granted
                       1 Loss of Income              Rs.11,70,000/- Rs.17,55,000/-         Enhanced
                       2 Loss of Consortium to 1st
                         claimant                  Rs.     40,000/- Rs.    40,000/-       Confirmed
                       3 Loss of Consortium to 2nd
                         to 6th claimants                  -          Rs. 2,00,000/-       Granted
                       4 Loss of love and affection
                         to 2nd to 6th claimants    Rs.    75,000/-         -               Deleted
                       5 Loss of estate                    -          Rs. 15,000/-         Granted
                       6 Funeral Expenses            Rs.   15,000/- Rs.    15,000/-       Confirmed
                       7 Transport charges           Rs.    5,000/- Rs.     5,000/-       Confirmed
                                  Total              Rs.13,05,000/- Rs.20,30,000/- Enhanced by Rs.
                                                                                     7,25,000/-

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15. The second respondent Insurance Company is directed to

deposit the aforesaid modified amount of Rs.20,30,000/- together with

interest at 7.5% per annum from 12.09.2019 till the date of realization and

cost of Rs.35,591.50, less the amount already deposited, if any, within a

period of 6 weeks from the date of receipt of a copy of this order.

16. On such deposit, the appellants/claimants are permitted to

withdraw the compensation, interest and costs, in the same proportion

ordered by the Tribunal, less the amount already withdrawn, if any, by

filing appropriate application before the Tribunal.

17. The appellants/claimants are directed to pay the court fee on the

enhanced amount of compensation, if any, within a period of 4 weeks

from the date of receipt of a copy of this order.