Madras High Court

Birundha vs Gopalakrishnan on 4 September, 2024

Author: R.Hemalatha

Bench: R. Hemalatha

                                                                              CMA.No.740 of 2024


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 04.09.2024

                                                     CORAM:

                                  THE HONOURABLE MRS.JUSTICE R. HEMALATHA

                                              C.M.A.No.740 of 2024

                     1.Birundha

                     2.Minor. Thulasikasri
                     (Represented by her mother first appellant)

                     3.Mahalakshmi                                      ... Appellants
                                                         vs.
                     1.Gopalakrishnan

                     2.ICICI Lombard General Insurance Company Limited,
                     No.6/5, Block - 7, Ward C,
                     Omalur Main Road,
                     Near Bus Stand, Salem - 9.

                     3.K.Jaya

                     4.M/s. United India Insurance Company Limited,
                     Salem, Divisional Office,
                     1st Floor, 104 - A, Ranga Building,
                     Main Road, Salem - 5.                              ... Respondents



                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against the Award dated 01.03.2023 in
                     M.C.O.P.1300 of 2021 on the file of the Motor Accident Claims Tribunal,


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                                                                                      CMA.No.740 of 2024


                     Special District Judge, Salem.

                                  For Appellants       : Mr.Amar D.Pandiya
                                                        for Mr.M.Mohamed Riyaz
                                  For R2               : Ms.R.Sreevidhya
                                  For R4               : Mr.J.Chandran

                                                   JUDGMENT

The appellants are the claimants in M.C.O.P.1300 of 2021 on

the file of the Motor Accident Claims Tribunal, Special District Judge,

Salem. They filed the claim petition under Section 166 of the Motor

Vehicles Act, 1988 seeking compensation of Rs.30,00,000/- for the death

of one Jayakumar, (the husband of first claimant, father of second

claimant and son of third claimant) in a road accident that took place on

14.03.2021.

2. The brief case of the appellants / claimants is as follows :

On 14.03.2021, Jayakumar (since deceased) was riding his two

wheeler bearing Registration Number TN-48-AZ-8835 on Namakkal –

Senthamangalam Road. When he was nearing Muthukapatti Village, a car

bearing Registration Number TN-37-CC-2558 came in the opposite

direction and hit the two wheeler, as a result of which, Jayakumar fell

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down and was ran over by a bus bearing Registration Number TN-46-U-

1899 which was coming behind him. He was immediately rushed to the

Government Hospital, Namakkal. However, he died on the way to the

hospital.

3. According to the claimants, the rash and negligent driving of

the driver of the car bearing Registration Number TN-37-CC-2558 and the

driver of the bus bearing Registration Number TN-46-U-1899 was the

cause of the accident and that since the said vehicles were insured with the

second respondent and fourth respondent Insurance Companies

respectively, the owner of the vehicles and their insurers are jointly and

severally liable to pay compensation to them.

4. In the Tribunal the owner of the car and the bus remained

absent and were set ex parte. The respondents 2 and 4, the Insurance

Companies resisted the claim petition on all the grounds available to them

under Section 170 of the Motor Vehicles Act.

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5. The Tribunal after analysing the evidence on record, fixed

composite negligence on the part of the driver of the car and the driver of

the bus in the ratio 60:40 and awarded compensation of Rs.10,85,000/- to

the appellants / claimants together with interest at the rate of 7.5% per

annum from the date of petition till the date of realisation, vide its orders

dated 01.03.2023. The Tribunal also held that the liability of the

respondents 1 to 4 are joint and several.

6. Aggrieved over the quantum of compensation awarded by the

Tribunal, the appellants / claimants have filed the present appeal under

Section 173 of the Motor Vehicles Act, 1988.

7. Heard Mr.Amar D.Pandiya, learned counsel appearing for the

appellants, Ms.R.Sreevidhya, learned counsel appearing for the second

respondent, the ICICI Lombard General Insurance Company Limited and

Mr.J.Chandran, learned counsel appearing for the fourth respondent, the

United India Insurance Company Limited.

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8. Mr.Amar D.Pandiya, learned counsel appearing for the

appellants would contend that the deceased was a mason earning a sum of

Rs.30,000/- per month. However, the Tribunal fixed the notional monthly

income of the deceased as Rs.8,000/- including future prospects, which,

according to him, is very meagre. He therefore, prayed for enhancement of

compensation.

9. Per contra Ms.R.Sreevidhya, learned counsel appearing for

the second respondent and Mr.J.Chandran, learned counsel appearing for

the fourth respondent contended that the Award passed by the Tribunal is

based on the well laid down principles of law which were in vogue at the

time of passing of the order and therefore, the same need not be disturbed

at this stage.

10. In the claim petition, it is contended that the deceased was

aged about 32 years and was a mason earning a sum of Rs.30,000/- per

month. In the absence of income proof, the Tribunal fixed the notional

monthly income of the deceased as Rs.8,000/-. Considering the age of the

victim and the year of the accident, this Court is of the opinion that fixing

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notional monthly income of the deceased at Rs.16,000/- would meet the

ends of justice. As per the decision of the Supreme Court of India in

National Insurance Co. vs Pranay sethi and others reported in 2017 (2)

TNMAC 601, 40% is added towards future prospects of the deceased.

Since there are three dependents, 1/3rd of the deceased's income should be

deducted towards his personal expenses. The deceased was aged 35 years

on the date of accident and the proper multiplier to be adopted in the

instant case is 16 as per the decision rendered in Sarla Verma and others

vs. Delhi Transport Corporation and another reported in (2009) 6 SCC

Calculation

Notional Income = Rs.16,000/-

40% Future Prospects = Rs.22,400/-

Loss of dependency

= Rs.28,67,200/-

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In addition to that the claimants are entitled to Rs.1,32,000/- (44,000 x 3),

Rs.16,500/- and Rs.16,500/- for Loss of Consortium, Loss of Estate and

Funeral Expenses respectively as per the decision in National Insurance

Co. vs Pranay sethi and others (cited supra). Thus, the claimants are

entitled to a total compensation of Rs.30,32,200/- ( 28,67,200 + 1,32,000

+ 16,500 + 16,500= 17,50,000) as shown in the following tabular column.

                                       S.No.               Head            Amount granted
                                                                            by this court
                                  1.           Loss of dependency           Rs.28,67,200/-
                                  2.           Loss of consortium           Rs.1,32,000/-
                                               (Rs.40,000/- x 4)
                                  3.           Funeral expenses              Rs.16,500/-
                                  4.           Loss of Estate                Rs.16,500/-
                                  Total                                     Rs.30,32,200/-

11. Thus, the compensation awarded by the Tribunal is enhanced

from Rs.10,85,000/- to Rs.30,32,200/- which would carry interest at the

rate of 7.5% per annum.

12. In the result,

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i. The Civil Miscellaneous Appeal is allowed. No costs.

ii. The compensation awarded by the Tribunal is enhanced from

Rs.10,85,000/- to Rs.30,32,200/-.

iii. The appellants / claimants are directed to pay court fee for the

enhanced compensation amount, if any, within a period of four

weeks from the date of this order and the Registry is directed to

draft the decree only after receipt of the Court fee.

iv. The first respondent and the second respondent, the ICICI Lombard

General Insurance Company Limited, Salem, are directed to deposit

60% of enhanced compensation amount i.e., Rs.18,19,320/- and the

third respondent and the fourth respondent, the United India

Insurance Company Limited, Salem, are directed to deposit 40% of

enhanced compensation amount i.e., Rs.12,12,880/- (less the

amount already deposited) jointly and severally together with

interest at the rate of 7.5% per annum from the date of claim

petition till the date of deposit within a period of four weeks from

the date of receipt of a copy of this order to the credit of

M.C.O.P.1300 of 2021 on the file of the Motor Accident Claims

Tribunal, Special District Judge, Salem.

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v. Apportionment :

The claimants 1 and 3 are at liberty to withdraw their respective

shares after following due process of law :

                                   1st claimant / Wife              Rs.15,32,200/-
                                                                    (with interest and costs)
                                   2nd claimant / Daughter          Rs.7,50,000/-
                                   3rd claimant / Mother            Rs.7,50,000/-

vi. The share of the minor second claimant is directed to be deposited

in any one of the Nationalised Bank till she attains majority.

vii.The appellants / claimants are not entitled to claim any interest for

the period of delay of 193 days in filing this appeal.