Madras High Court
Shanmugavel vs Essakiammal on 19 September, 2024
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.09.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
In C.M.A.(MD)No.815 of 2023:
1.Shanmugavel,
Mariammal (died)
2.Saravanakumar,
3.Somasundari. ... Appellants
Vs.
1.Essakiammal,
2.Minor.Nithish,
3.Minor.Jeyalakshmi
(Minor appellants 2 and 3 are represented through
their mother and next friend-first respondent)
4.P.Suseela
5.The Oriental Insurance Co. Ltd.,
Divisional Office,
Coimbatore, through its Divisional Manager. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated 21.03.2023
passed in M.A.C.O.P.No.110 of 2016 on the file of the Motor Accidents
Claims Tribunal, (Chief Judicial Magistrate Court), Tirunelveli.
For Appellants : Ms.R.Jenifer Bibin
_____________
https://www.mhc.tn.gov.in/judis
Page No. 1 of 12
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
For Respondents :
for R1 to R3 : Mr.M.Jothi Rama Lingam
for R5 : Mr.C.Karthik
for R4 : Dispensed with
In C.M.A.(MD)No.527 of 2024:
1.Essakiammal,
2.Minor.Nithish,
3.Minor.Jeyalakshmi
(Minor appellants 2 and 3 are represented through
their mother and next friend-first appellant) ... Appellants
Vs.
1.P.Suseela
2.The Oriental Insurance Co. Ltd.,
Divisional Office,
Coimbatore, through its Divisional Manager.
3.Shanmugavel,
Mariammal (died)
4.Saravanakumar,
5.Somasundari. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated 21.03.2023
passed in M.A.C.O.P.No.110 of 2016 on the file of the Chief Judicial
Magistrate Court, Tirunelveli.
For Appellants : Mr.M.Jothi Rama Lingam
For Respondents : Mr.C.Karthik for R2
_____________
https://www.mhc.tn.gov.in/judis
Page No. 2 of 12
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
*****
COMMON JUDGMENT
C.M.A.(MD)No.527 of 2024 has been filed by the wife and children
of the deceased seeking enhancement of the compensation. C.M.A.
(MD)No.815 of 2023 has been filed by the parents of the deceased,
aggrieved by the fact that no compensation was awarded to them. In view
of the above, both the appeals are taken up together.
2. The appellants in C.M.A.(MD)No.527 of 2024 filed a claim
petition in M.C.O.P.No.110 of 2016 stating that on 14.11.2015, while the
deceased was riding his two wheeler on the extreme left side of the road, a
bus insured with the second respondent came in a rash and negligent
manner and dashed against the motor cycle, as a result of which, the
deceased sustained fatal injuries.
3. The owner of the bus remained ex parte before the Tribunal.
4. The second respondent in C.M.A.(MD)No.527 of 2024 filed a
counter stating that the accident took place only due to the negligence of
the deceased; that in any case, the compensation claimed by the claimants
_____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
was excessive; and that the parents of the deceased had filed M.C.O.P.No.
112 of 2016 for the same accident, and hence, the claim petitions were not
maintainable.
5. The parents of the deceased, namely, the appellants in C.M.A.
(MD)No.815 of 2023, had filed an independent claim petition in
M.C.O.P.No.112 of 2016, which was dismissed and subsequently, they
were impleaded as the respondents in the claim petition filed by the
claimants/appellants in C.M.A.(MD)No.527 of 2024 in M.C.O.P.No.110
of 2016 vide the order dated 15.09.2022 in I.A.No.5 of 2022 by the
Tribunal.
6. The claimants/appellants in C.M.A.(MD)No.527 of 2024
examined two witnesses as P.W.1 and P.W.2 and marked Exs.P1 to P6.
The respondents neither examined any witnesses nor marked any
documents.
7. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the driver of the insured vehicle was
guilty of rash and negligent driving and that the second respondent in
_____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
C.M.A.(MD)No.527 of 2024/Insurance Company has to pay the total
compensation at Rs.11,74,000/-. However, the Tribunal had not awarded
any compensation to the parents of the deceased. The mother of the
deceased died pending disposal of the claim petition, and the siblings of
the deceased as legal heirs of the motehr, were impleaded as the
respondents along with the father of the deceased in the claim petition.
8. The learned counsel for the appellants in C.M.A.No.527 of 2024
submitted that the deceased was working as an LIC agent and also
employed in an Oil Mill Company as an Accountant. However, the
Tribunal had fixed very meagre notional income at Rs.8,000/- and had
awarded meagre compensation under the head 'loss of consortium'. Hence,
the compensation has to be enhanced.
9. The learned counsel for the appellants in C.M.A.(MD)No.815 of
2023 submitted that the parents of the deceased were also dependents of
the deceased and the Tribunal had erred in not awarding any
compensation to them and hence, the compensation ought to be awarded
to the father of the deceased and the legal heirs of the mother of the
deceased.
_____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
10. The learned counsel for the second respondent in C.M.A.
(MD)No.524 of 2024/Insurance Company, per contra, submitted that the
Tribunal had fixed the notional income correctly; that even as per the
records furnished by the claimants, the deceased had not earned more than
Rs.8,000/- p.m., and therefore, the notional income fixed by the Tribunal
at Rs.8,000/- is justified; and therefore, there is no reason to enhance the
compensation and hence, prayed for dismissal of the appeals.
11. The points for consideration in the instant appeals are as
follows:
'a. Whether the quantum of compensation awarded by the Tribunal is
just and reasonable?
b. Whether the appellants in C.M.A.(MD)No.815 of 2023, who are
the father and the legal heirs of the mother of the deceased, are entitled to
the compensation?'
12. As regards the first point, it is seen that P.W.1- wife of the
deceased had stated before the Tribunal that the deceased was employed
as an LIC agent and was also working as an Accountant in an Oil Mill
_____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
Company. However, no documentary evidence was produced either to
establish the avocation or the exact income earned by the deceased.
Ex.P6-Bank Passbook of the deceased would suggest that he had been
receiving certain commissions from the LIC, thereby, establishing that he
was working as an agent in the LIC. In the absence of any proof as regards
the income, this Court is of the view that only a notional income can be
taken for computing 'loss of income'. However, the notional income fixed
by the Tribunal at Rs.8,000/-, considering the year of the accident and the
avocation of the deceased, is meagre. Therefore, considering the age of
the deceased, his avocation and the year of the accident, this Court is of
the view that a sum of Rs.12,000/- p.m. can be fixed as notional income.
Admittedly, the deceased was aged 35 years at the time of the accident.
Hence, 40% has to be added towards future prospects. The multiplier
applicable is '16'. Since there were five dependents at the time of his
death, ¼ has to be deducted towards his personal expenses. The award of
compensation under the head 'loss of income' has to be Rs.12,000/- +
Rs.4,800/- x 12 x 16 x ¾ = Rs.24,19,200/-.
13. The compensation under the heads 'loss of consortium' and 'loss
of love and affection' is not in accordance with the guidelines laid down
_____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
by the Hon'ble Supreme Court. In this case, five claimants were alive at
the time of the accident, namely, the father, mother, wife and children of
the deceased, who are each entitled to Rs.40,000/- under the head 'loss of
consortium'. Hence, a sum of Rs.2,00,000/- has to be awarded under the
head ' loss of consortium'.
14. The award under the head 'transport expenses' is unwarranted as
no proof has been produced on the side of the claimants. The
compensation under the other heads is confirmed. Thus, the compensation
awarded by the Tribunal is modified as follows:
Sl. Description Amount Amount Award
No awarded by awarded by confirmed,
the Tribunal this Court enhanced or
granted
1 Loss of Income Rs.10,24,000/- Rs.24,19,200/- Enhanced
2 Loss of consortium and Rs. 1,00,000/- Rs. 2,00,000/- Enhanced
loss of love and affection
(Rs.50,000/- + Rs.
50,000/-)
3 Funeral expenses Rs. 20,000/- Rs. 20,000/- Confirmed
4 Transport expenses Rs. 10,000/- ---- Deleted
5 Loss of Estate Rs. 20,000/- Rs. 20,000/- Confirmed
Total Rs.11,74,000/- Rs.26,59,200/- Enhanced by
Rs.14,85,200/-
_____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
15. It is seen that the appellants in C.M.A.(MD)No.815 of 2023 are
the father and the legal heirs of the mother of the deceased. This Court is
of the view that the legal heirs of the mother of the deceased, who are the
siblings of the deceased, are not entitled to any compensation. However,
the father, namely, the first appellant in C.M.A.(MD)No.815 of 2023, is
entitled to compensation. Out of the compensation amount, this Court is
of the view that a sum of Rs.2,00,000/- can be awarded to the father/first
appellant in C.M.A.(MD)No.815 of 2023.
16. The second respondent in C.M.A.(MD)No.527 of
2024/Insurance Company shall deposit the enhanced compensation
amount of Rs.26,59,200/- (Rupees Twenty Six Lakhs Fifty Nine
Thousand and Two Hundred only) together with interest at the rate of
7.5% per annum from the date of claim petition till the date of realization
(excluding the period of dismissal for default if any) and proportionate
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 order.
17. On such deposit, the appellants in C.M.A.(MD)No.527 of 2024
are equally entitled to a total sum of Rs.24,59,200/- (Rupees Twenty Four
_____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
Lakhs Fifty Nine Thousand and Two Hundred only) with interest at 7.5%
p.a., less the amount already withdrawn, if any, by filing appropriate
application before the Tribunal.
18. The first appellant in C.M.A.(MD)No.815 of 2023 is permitted
to withdraw a sum of Rs.2,00,000/- with interest at 7.5% p.a., by filing
appropriate application before the Tribunal.
19. The Tribunal is directed to deposit the share amount of the
minor claimants/respondents 2 and 3 in C.M.A.(MD)No.527 of 2024 in
any one of the Nationalized Bank in an interest bearing Fixed Deposit,
initially for a period of three years, renewable thereafter, till the minors
attain majority. The guardian of the minors/first appellant in C.M.A.
(MD)No.527 of 2024, who is their mother, is permitted to withdraw
interest from the said deposit, once in three months and utilise the same
for the welfare of the minors claimants/respondents 2 and 3 in C.M.A.
(MD)No.527 of 2024.
_____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
20. In the result, these Civil Miscellaneous Appeals are partly
allowed. No costs.
19.09.2024
Index: Yes/ No
NCC: Yes / No
Speaking Order / Non-Speaking Order
apd
To:
1. The Motor Accidents Claims Tribunal,
Chief Judicial Magistrate, Tirunelveli.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
_____________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
SUNDER MOHAN, J.
apd
C.M.A.(MD) Nos.815 of 2023 & 527 of 2024
19.09.2024
_____________
https://www.mhc.tn.gov.in/judis
