Madras High Court

Padma vs Kalairaju on 1 February, 2024

                                                                         C.M.A.(MD)No.368 of 2014

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 Dated: 01.02.2024
                                                     CORAM:
                                   THE HON'BLE MR.JUSTICE P. DHANABAL
                                            C.M.A.(MD)No.368 of 2014
                    1.Padma
                    2.Thangappan
                    3.Ponselvi
                    4.Viji Priya                            ... Appellants/ Petitioners
                                                    Vs.
                    1.Kalairaju
                    2.The Branch Manager
                         Sri Ram General Insurance Company Limited,
                         Seethapuram, Jaipur, Rajasthan.
                    3.Manimaran
                        (Respondents 1 & 3 Remained Exparte
                         Before the Tribunal. Hence Notice to the R1
                         & 3 may be dispensed with)

                    4. United India Insurance Company Limited,
                         114/120, Super Bazaar, Trichy.         ... Respondents/Respondents
                    Prayer : This Civil Miscellaneous Appeal filed under Section 173 of the
                    Motor Vehicles Act, against the judgment and decree dated 23.02.2012
                    made in M.C.O.P.No.489 of 2011 on the file of the Motor Accident Claims
                    Tribunal - Additional District Court – Fast Track Court No.II),
                    Trichirappalli.


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https://www.mhc.tn.gov.in/judis
                                                                           C.M.A.(MD)No.368 of 2014



                                  For Appellants     : Mr.Jeril Mathew
                                                      for M/s.Ajmal Associates
                                  For R4             : Mr.C.Jawahar Ravindran
                                  For R2             : Mr.N.Shylappakalyan
                                  For R1             : No appearance


                                                    JUDGMENT

This Civil Miscellaneous Appeal has been filed as against the

order passed in M.C.O.P.No.489 of 2011 on the file of the Motor Accident

Claims Tribunal - Additional District Court – Fast Track Court No.II),

Trichirappalli, wherein the appellants / petitioners herein have filed the

claim petition for a sum of Rs.30,00,000/-. The Tribunal has awarded a

sum of Rs.6,94,000/- along with interest @ 7.5% per annum as

compensation.

2. Being aggrieved by the above said order of the Tribunal,

the petitioners have filed this Civil Miscellaneous Appeal.

3. For the sake of convenience and brevity, the parties herein

after will be referred to as per their status/ranking in the Tribunal.

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

4. The brief facts of the petition averments are as follows:

On 16.10.2010, at about 3.45 p.m., when the deceased –

Visakan was proceeding in a motorcycle bearing Registration No.TN-45-

A-8310 from Trichy to Srirangam, a car bearing Registration No. TN-37-

AE-1748, belonged to the first respondent, came in the opposite direction

in a rash and negligent manner and dashed against the motorcycle. Due to

which, the deceased – Visakan sustained injuries all over the body and

was taken to Government Hospital, Trichy, where he died on the same day

at about 04.45 pm. At the time of accident, the deceased was aged about

28 years and he studied M.C.A and was earning Rs.5,000/- per month. The

accident took place due to the negligence on the part of the first

respondent's driver. The first respondent's vehicle was insured with the

second respondent. Hence the petitioners, who are the legal heirs of the

deceased, have filed the claim petition for claiming compensation for a

sum of Rs.30,00,000/-.

5. The brief facts of counter filed by the second respondent

are as follows:

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

The Petition is not maintainable either in law or facts and the

averments made in the Petition are all denied. The accident had not taken

place as alleged in the Petition. The rider of the motorcycle only liable for

the accident. This respondent denied the age, income and occupation of

the deceased. Hence, this Petition is liable to be dismissed.

6. The brief facts of counter filed by the third respondent are

as follows:

The Petition is not maintainable. The accident did not take place

due to the negligence on the part of the third respondent's driver and the

accident took place only due to the negligence on the part of the driver of

the first respondent. F.I.R was also registered as against the first

respondent, thereby, this respondent is not liable to pay compensation to

the Petitioners.

7. The brief facts of counter filed by the fourth respondent

are as follows:

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

This Petition is not maintainable. This respondent denied the

age, income and occupation of the deceased. The accident took place due

to the rash and negligent driving of the driver of the first respondent.

Hence, this Petition is liable to be dismissed.

8. Inorder to prove the case of the petitioners, the first petitioner

examined himself as P.W.1 and two other witnesses were examined as

P.W.2 & P.W.3 and 17 documents were marked as Exs.P.1 to Ex.P.17 and

on the side of the respondents, one witness was examined as R.W.1 and

3 documents were marked as Exs.R1 to Ex.R3.

9. After evaluating the oral and documentary evidence adduced

on either side, the Tribunal has awarded a sum of Rs.6,94,000/- towards

compensation with interest of 7.5 % pa.

10. As against the award passed by the Tribunal, the claimants

have preferred this appeal for enhancing the compensation amount, on

various grounds.

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

11. The learned counsel appearing for appellants / claimants

would contend that the accident took place due to the negligence on the

part of the driver of the first respondent. The deceased was aged about

28 years on the date of accident and he was earning a sum of Rs.2,00,000/-

per year. In order to prove the salary of the deceased, they have examined

P.W.3, who is the Manager of the Company, where the deceased was

working and he categorically deposed that the deceased was earning

Rs.9,000/- per month and to that effect, he has also produced Ex.P10-

salary certificate, But, However, the Tribunal disbelieved the evidence of

the Petitioners' side. Therefore, the award passed by the Tribunal is liable

to be enhanced.

12. The learned counsel for the second respondent / Insurance

Company would contend that the Tribunal after on consideration of the

evidence on either side, correctly calculated the monthly income of the

deceased as Rs.6,000/-. However, the Tribunal deducted 1/3 rd of the

amount for personal expenses of the deceased, instead of deducting 50%.

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

In all other aspects, the Tribunal awarded a just and fair compensation.

Therefore, the order of the Tribunal is correct and the present Appeal is

liable to be dismissed.

13. This Court after hearing both sides and upon perusing the

documents including the order of the Tribunal the point for determination

in this appeal is:

i)whether the appeal is liable to be allowed or not?

14. The Tribunal had fastened the negligence on the part of the

driver of the first respondent and there is no appeal preferred by the

respondents, in the aspect of negligence and thereby, the findings of the

Tribunal was accepted by the parties. Therefore, there is no dispute with

regard to the negligence. The appellants have preferred this Appeal

mainly on the ground of enhancement of the compensation. The Tribunal

fixed the monthly income as Rs.6,000/- and adopted multiplier of '13', by

taking into consideration of the age of the mother of the deceased. It is

settled law that the age of mother of the deceased is irrelevant and the age

of the deceased has to be taken into account for awarding compensation.

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

But, the Tribunal erroneously taking the age of the mother of the deceased

for adopting multiplier. In order to prove the salary of the deceased, the

appellants / petitioners have examined P.W.3 and marked Ex.P10. On

careful perusal of Ex.P10-salary certificate and evidence of P.W.3, it

evidenced that the deceased was earning Rs.9,000/- per month. In order to

rebut the evidence of petitioners' side, no contra evidence was adduced. In

the absence of contra evidence, the submission of the petitioners is

realiable and acceptable. As per Ex.P10, the deceased was earning

Rs.9,000/- per month. Hence, this Court fixed the monthly income of the

deceased as Rs.9,000/-. The Tribunal has failed to add future prospects, as

per the Judgment of the Pranay Sethi's Case, 40% (Rs.3,600/-) has to be

added as future prospects and thereby, the monthly income of the deceased

is fixed at Rs.12,600/- (Rs.9,000/- + Rs.3,600/-). Considering the fact that

the deceased was a Bachelor, 50% (Rs.6,300/-) has to be deducted as

personal expenses of the deceased.

15. The age of the deceased was mentioned as 28 years and the

same was not disputed by the respondents. Considering the age of the

deceased, multiplier '17' has to be adopted and thereby, the appellants /

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

claimants are entitled to Rs.12,85,200/- (Rs.6,300/- X 12 X17) towards

loss of income. Further the appellants / claimants are entitled for a sum of

Rs.18,000/- towards funeral expenses, Rs.18,000/- towards loss of estate

and Rs.48,000/- towards consortium. In total, the petitioners / appellants

are entitled to Rs.13,69,200/- and the same is rounded off to

Rs.13,70,000/-. The appellants / petitioners are entitled for compensation

as follows:

1. Loss of income Rs. 12,85,200/-

2. Funeral Expenses Rs. 18,000/-

3. Loss of estate Rs. 18,000/-

4. Consortium Rs. 48,000/-

                                  Total                             Rs.     13,69,200/-
                                                               the same is rounded off
                                                                  to Rs. 13,70,000/-

16. The Tribunal has failed to consider the evidence of the P.W.3

and Ex.P10 and also failed to consider multiplier for the age of the

deceased and thereby, the award passed by the Tribunal is liable to be

modified as above.

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

17. In fine, the appellants / petitioners are entitled to a sum of

Rs.13,70,000/- towards compensation with interest at the rate of 7.5% pa.

from the date of claim petition till the date of realization. The first

appellant, who is the mother of the deceased, is entitled to Rs.5,00,000/-

along with proportionate interest and costs, the second appellant, who is

the father of the deceased, is entitled to Rs.3,00,000/- along with

proportionate interest and costs, the third and fourth appellants, who are

the sisters of the deceased, are entitled to Rs.2,85,000/- each along with

proportionate interest and costs.

18. In the result this Civil Miscellaneous Appeal is partly

allowed and the order passed by the Tribunal in M.C.O.P.No.489 of 2011