Madras High Court
Nilavar Nisha vs S.Sekar on 3 September, 2024
C.M.A.(MD) No.540 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.09.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.540 of 2024
1.Nilavar Nisha
W/o.Akbar Basha
2.Minor.Thaiyuba Dhasnim
S/o.Akbar Basha
3.Thamina Dhasnim (Minor),
D/o.Akbar Basha ... Appellants
[2nd and 3rd appellants are minors represented by
their mother and natural guardian 1st appellant]
Vs.
1.S.Sekar
S/o.Sethurajan
2.New India Assurance Company Limited,
Branch Office, Jerome Building,
Kottai Station Road, Trichy. ... Respondents
[R1 remained ex parte before the Tribunal. Notice to R1 was
dispensed with, by the order of this Court dated 03.06.2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to modify the order dated 03.01.2022 in M.C.O.P.No.
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Page No. 1 of 10
C.M.A.(MD) No.540 of 2024
1427 of 2015 on the file of the Motor Accident Claims Tribunal/Special
District Judge, Tiruchirappalli and award further enhancement of
compensation of Rs.10,00,000/-.
For Appellants : Mr.N.Sudhagar Nagaraj
For R2 : Mr.C.Karthick
JUDGMENT
The instant appeal has been filed by the claimants seeking
enhancement of compensation awarded by the Motor Accident Claims
Tribunal (Special District Judge), Tiruchirappalli, vide its Judgment and
Decree dated 03.01.2022 passed in M.C.O.P.No.1427 of 2015.
2. The appellants filed a claim petition before the Tribunal, stating
that on 22.09.2015 at about 02.30 p.m., while the deceased was driving
his Car bearing Registration No.TN-45-AY-8811 with his friends, an
Eicher Van bearing Registration No.TN-51-AA-4641, owned by the first
respondent and insured with the appellant, Insurance Company, came in a
rash and negligent manner and collided with the Car, as a result of which
the deceased sustained fatal injuries, and his friends suffered grievous
injuries. The other injured parties filed separate claim petitions for the
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injuries they sustained, which were also disposed of by the Tribunal vide a
common Judgment, including the claim petition filed by the appellants.
3. The first respondent herein, the owner of the insured vehicle,
remained ex parte before the Tribunal.
4. The second respondent, Insurance Company, filed a counter
before the Tribunal, stating that the accident took place only due to the
rash and negligent driving of the deceased; that the van driver did not
have a valid driving licence at the time of the accident; and that in any
case, the compensation claimed by the appellants was excessive.
5. Before the Tribunal, the appellants and the other injured
claimants examined P.W.1 to P.W.4 and marked Exs.P1 to P26. The
second respondent, Insurance Company, examined R.W.1 and R.W.2 and
marked Exs.R1 to R4. Apart from the above, Exs.X1 to X5 and Exs.C1
and C2 were marked.
6. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the accident took place only due to the
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rash and negligent driving of the van driver and directed the second
respondent to pay compensation of Rs.12,22,000/- to the appellants and
recover the same from the first respondent, the owner of the insured
vehicle.
7. The learned counsel for the appellants submitted that though the
appellants had established that the deceased was working as a driver and
earning nearly Rs.15,000/- per month, the Tribunal had adopted a meagre
notional income of Rs.6,000/- per month and therefore prayed for
enhancement of the compensation.
8. Since the first respondent, the owner of the insured vehicle, has
remained ex parte before the Tribunal, the notice to him was dispensed
with by this Court, vide order dated 03.06.2024.
9. The learned counsel for the second respondent, Insurance
Company, per contra, submitted that the compensation awarded by the
Tribunal is just and reasonable, and therefore, no interference is called
for.
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10. The only point for consideration in the instant appeal is whether
the compensation awarded by the Tribunal is just and reasonable.
11. The manner of the accident and the liability are not in dispute.
The ground raised by the appellants is that though the appellants had
established that the deceased was having a valid driving licence and was
employed as a driver, the Tribunal had taken a sum of Rs.6,000/- per
month as the notional income of the deceased. This Court is of the view
that the avocation of the deceased has been established by the appellants
through the evidence of P.W.1, the wife of the deceased, and by
production of the Driving Licence of the deceased (Ex.P5). However, the
appellants have not established the exact income earned by the deceased
at the time of the accident.
12. Considering the avocation of the deceased, his age at the time of
the accident, 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.10,000/- per month. 40% has to be added towards future prospects.
The multiplier applicable is 16. Since there are three dependents, 1/3rd has
to be deducted towards personal expenses. Hence, the compensation
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under the head 'loss of dependency' has to be Rs.17,92,000/- [Rs.10,000/-
+ 40/100 x 12 x 16 x 2/3].
13. The compensation under the other heads except for 'loss of
consortium, which has to be enhanced to Rs.40,000/- each to the
claimants, is just and reasonable and is therefore confirmed. Thus, the
total compensation is modified as follows:
Sl. Heads Amount Amount Award
No awarded by the awarded by this confirmed,
Tribunal Court enhanced or
granted
1 Loss of Dependency Rs.10,75,200/- Rs.17,92,000/- Enhanced
2 Transport Charges Rs. 10,000/- Rs. 10,000/- Confirmed
3 Medical Bills Rs. 11,800/- Rs. 11,800/- Confirmed
4 Loss of Consortium to
the 1st claimant Rs. 35,000/- Rs. 40,000/- Enhanced
5 Loss of Parental
consortium to the 2nd Rs. 70,000/- Rs. 80,000/- Enhanced
and 3rd claimants
6 Funeral Expenses Rs. 10,000/- Rs. 10,000/- Confirmed
7 Loss of Estate Rs. 10,000/- Rs. 10,000/- Confirmed
Total Rs.12,22,000/- Rs.19,53,800/- Enhanced by
Rs.7,31,800/-
14. The other finding of the Tribunal as regards the pay and
recovery is confirmed.
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15. The second respondent, Insurance Company, is directed to
deposit the enhanced compensation of Rs.19,53,800/- together with
interest at 7.5% per annum from the date of the claim petition till the date
of realization and costs, after deducting the amount already deposited, if
any, within a period of four (4) weeks from the date of receipt of a copy of
this Judgment.
16. The finding of the Tribunal granting liberty to the second
respondent, Insurance Company, to pay and recover the compensation is
confirmed. The second respondent, Insurance Company, is entitled to
recover the said compensation from the first respondent, the owner of the
insured vehicle, as per the guidelines issued by the Hon'ble Supreme
Court in the case of Nanjappa Vs. State of Karnataka, reported in 2015
(1) SCC 550.
17. The appellants are entitled to the compensation, as per the
apportionment fixed by the Tribunal.
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18. The first claimant is permitted to withdraw her share along with
the proportionate interest and costs, less the amount already withdrawn, if
any, by filing an application before the Tribunal.
19. Since the second and third claimants are minors, their shares are
directed to be deposited in an interest-bearing fixed deposit [F.D.] in any
nationalized bank until they attain majority. The first claimant is permitted
to withdraw the accrued interest once every six months.
20. The appellants/claimants are directed to pay the necessary court
fee, if any, for the enhanced amount of compensation.
21. In the result, this Civil Miscellaneous Appeal is partly allowed.
No costs.
03.09.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The Special District Judge,
Motor Accident Claims Tribunal,
Tiruchirappalli,
Tiruchirappalli District.
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2.The Section Officer,
V.R.Section,
Madurai Bench of Madras high Court,
Madurai.
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SUNDER MOHAN, J.
JEN
03.09.2024
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