Madras High Court

K.Pitchaimuthu vs M/S.Abt Limited on 4 January, 2024

                                                                     C.M.A.(MD)No.1506 of 2013

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              Dated: 04.01.2024
                                                   CORAM:
                                  THE HON'BLE MR.JUSTICE P. DHANABAL
                                        C.M.A.(MD)No.1506 of 2013


                    1.K.Pitchaimuthu

                    2.Thangaraj

                    3.Uma Rani

                    4.Valli

                    5.Kannan

                    6.Kumar                                  ... Appellants/Petitioners

                                                 Vs.

                    1.M/s.ABT Limited
                    No.10/14-15, Kalingarayan Street
                    Ram Nagar
                    Coimbatore


                    2.The New India Assurance Company Ltd.,
                    No.435, D.B.Road
                    R.SPuram
                    Coimbatore                           ...Respondents/Respondents


                    Prayer : This Civil Miscellaneous Appeal filed under Section 173 of the
                    Motor Vehicles Act, to allow this appeal and enhance the award amount
                    in MCOP.No.38 of 2009 on the file of the Motor Accident Claims Tribunal

                    1/11
https://www.mhc.tn.gov.in/judis
                                                                           C.M.A.(MD)No.1506 of 2013

                    (District Judge), Karur, dated 15.06.2012.


                                    For Appellants    : Mr.T.Selvakumaran
                                    For R1            : No appearance
                                    For R2            : Mr.B.Vijay Karthikeyan


                                                      JUDGMENT

This Civil Miscellaneous Appeal has been filed as against the order

passed in M.C.O.P.No.38 of 2009 on the file of the Motor Accident Claims

Tribunal (District Judge), Karur wherein the claimants have filed the

above claim petition for death of the wife of the first appellant and

mother of the appellants 2 to 6 herein.

2. The Tribunal has awarded a sum of Rs.1,35,000/- towards

compensation @7.5% interest from the date of filing of the petition till

the date of realization with proportionate costs. As against the award

passed by the Tribunal, the present appeal has been preferred by the

appellants/ petitioners.

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

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

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4. The brief facts of the petition averments are:

The deceased Sampooranam aged about 64 years at the time of

accident and on 04.12.2008 at about 6.00 p.m, the first petitioner, who is

the husband of the deceased Sampooranam was riding his T.V.S.50

Moped bearing Registration No.TN 45B 7632 from South to North on the

left side of the road. The deceased Sampooranam travelled as a pillion

rider. When T.V.S.50 Moped was nearing north of Thirukampuliyur

Roundana, the driver of the first respondent had driven the tanker lorry

bearing Registration No.T.N.38-0911 in a rash and negligent manner and

dashed against the deceased vehicle. The deceased who was travelling

as a pillion rider sustained multiple injuries on her head and all over the

body and died on the spot. The first petitioner sustained injuries on his

right leg, right shoulder, backbone and left leg and he had taken

treatment. The accident occurred due to the rash and negligent driving

on the part of the driver of the lorry. At the time of accident, the

deceased was earning a sum of Rs.6,000/- per month by doing milk

vending business and thereby, the petitioners have filed the claim petition

claiming compensation for Rs.3,00,000/-

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5. The brief facts and counter filed by the second respondent:

The claim petition is not maintainable either in law or on facts

and the petitioner is put to strict proof of involvement of the lorry in the

accident and the monthly income of the deceased. The petitioners are

not the dependents of the deceased Sampooranam. There is no

negligence on the part of the driver of the lorry and thereby, the

respondent/Insurance Company is no way liable to pay compensation to

the petitioners and hence, the petition is liable to be dismissed.

6.In order to prove the case of the petitioners before the

Tribunal, the first petitioner was examined as P.W.1 and exhibits Exs.P.1

to Ex.P.6 documents were marked and on the side of the respondents,

R.W.1 was examined and no documentary evidence adduced on the side

of the respondents.

7. After evaluating the oral and documentary evidence adduced

on either side, the Tribunal has taken the age of the deceased as 65

years and in the absence of document to prove that the deceased was

doing milk vending business has taken the income of the deceased at

Rs.15,000/- per annum and after deducting 1/3rd of income towards

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personal expenses adopting multiplier 5 and awarded a sum of

Rs.50,000/- towards loss of income based on the Schedule II of the

Motor Vehicles Act. The Tribunal has awarded Rs.25,000/- towards loss of

love and affection and conjugal happiness to the first petitioner and

awarded a sum of Rs.10,000/- each to the petitioners 2 to 6 towards loss

of love and affection. Rs.5,000/- was awarded towards transport

expenses and Rs.5,000/- towards funeral expenses. In total, a sum of Rs.

1,35,000/- with 7.5% interest was awarded. Aggrieved over the award of

compensation passed by the Tribunal, the petitioners have preferred the

present Civil Miscellaneous Appeal for enhancement of compensation.

8.The learned counsel appearing for appellants/petitioners had

contended that these petitioners are dependents of the deceased and the

deceased was aged about 65 years on the date of accident and she died

due to the accident. The said accident was occurred only due to the rash

and negligent driving on the part of the driver of the first respondent.

The Tribunal has failed to take note of the fact that the deceased was

earning a sum of Rs.6,000/- per month by doing milk vending business

and had wrongly applied multiplier 5 instead of 7. The Tribunal ought to

have granted Rs.20,000/- each for love and affection. Therefore, the

award passed by the Tribunal is liable to be enhanced.

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9.The learned counsel appearing for the second

respondent/Insurance Company had contended that the deceased was

aged about 65 years and the petitioners have not produced any

document to show that the deceased was doing milk vending business.

As per II Schedule of Motor Vehicles Act, 1988, the Tribunal has correctly

taken the income of the deceased as Rs.15,000/- p.a. and also correctly

applied the multiplier of 5. Hence, the award passed by the Tribunal is

reasonable and the present Civil Miscellaneous Appeal is liable to be

dismissed.

10. 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?

11. In this case, there is no controverting that the deceased

died in a road accident and the first respondent's vehicle was insured

with the second respondent. According to the learned counsel for the

appellants, the accident took place due to the rash and negligent driving

on the part of the driver of the first respondent and the deceased was

aged about 65 years at the time of accident. Though age of the deceased

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was 65 years, no documents have been produced by the petitioners.

However, on perusal of Ex.P2-post-mortem certificate, it reveals that the

deceased was aged about 65 years on the date of accident. Hence, this

Court has taken the age of the deceased as 65 years on the date of the

accident. In order to prove the income of the deceased, no independent

witness was examined and no specific evidence has been adduced on the

petitioners' side. However, PW1-Pitchaimuthu (husband of the deceased)

has deposed that the deceased was doing milk vending business and

earned a sum of Rs.6,000/- per month. Considering the age and nature

of work of the deceased, the income would be taken as Rs.4,000/- per

month and thereby, the annual income comes to Rs.48,000/-.

Considering the dependency, deducting an amount of 1/4th ie.

Rs.48,000/- X ¼ = Rs.12,000/- towards personal expenses, the annual

income of the deceased comes to Rs.36,000/-. Considering the age of the

deceased, multiplier 7 is to be adopted as per Sarala Varma Case.

Thereby, the award amount comes to (Rs.36,000/- X 7)= Rs.2,52,000/-.

12.The learned counsel for the appellants had produced the

judgement of the Hon'ble Division Bench of our High Court reported in

2019 (1) TN MAC 54 (DB)(Andal and others Vs. Avinav Kannan

and another) and the judgment of the Hon'ble Supreme Court reported

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in 2014 (1) TN MAC 459 (SC) (Syed Sadiq etc., Vs. Divisional

Manager, United India Insurance Co.Ltd.,).

13. On a careful perusal of the judgments cited supra, it is clear

that with regard to the annual income of the deceased, each and every

case has to be decided on independent facts and depending upon the

nature of the work done by the deceased.

14. The learned counsel for the appellants had relied upon a

judgment of the Hon'ble Supreme Court reported in 2003 ACJ 12

( Nagappa Vs. Gurudayal Singh and others) in which paragraph No.

21 has held as follows:

“21.For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases, there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section(4) to Section 166, even report submitted to the Claims Tribunal under sub-section(6) of Section 158 can be treated as an application for compensation under the M.V.Act. If required, in appropriate cases, Court may permit amendment to

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the claim petition.”

15.In view of the above said judgment, this Court awards an

excess compensation to the appellants/claimants than they claimed in the

petition. Thereby, this Court has decided to award a sum of Rs.2,52,000/-

towards loss of income of the deceased. The Tribunal has failed to

consider the evidence adduced by the petitioners with regard to milk

vending business of the deceased and also wrongly applied multiplier of 5

and thereby, the order of the Tribunal is liable to be modified as follows:

1. Loss of Income Rs.2,52,000/-

2. Loss of Estate Rs. 18,000/-

3. Loss of Consortium Rs. 48,000/-

4. Funeral Expenses Rs. 18,000/-

                                  Total                                  Rs.3,36,000/-
                                  Rounded off                            Rs.3,50,000/-

16.In the result, this Civil Miscellaneous Appeal is partly allowed

and the order passed by the Tribunal in M.C.O.P.No.38 of 2009 is

modified to the effect that the petitioners are entitled for a sum of Rs.

3,50,000/- with 7.5 % interest per annum from the date of filing of the

claim petition till the date of realisation of the compensation. It is

brought to the notice of the Court that the second respondent

herein/Insurance Company has already deposited the entire amount

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awarded by the Tribunal. Therefore, the second respondent /insurance

company is directed to deposit the remaining award amount with

proportionate interest and costs, within a period of two months from the

date of judgement of this Court. On such deposit, the petitioners are

permitted to withdraw the entire amount along with interest and costs by

filing application before the Tribunal. Further, the petitioners are directed

to pay the balance Court Fee for the enhanced amount within a period of