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2022 DIGILAW 1324 (MAD)

Jeyasudha v. Elumalai

2022-06-09

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT (Prayer: The Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 13.01.2020 made in M.C.O.P.Nos.553 and 591 of 2017 on the file of Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai.) Common Judgment V.M. Velumani, J. 1. The Civil Miscellaneous Appeals are filed for enhancement of compensation granted by the Tribunal in the award dated 13.01.2020 made in M.C.O.P.Nos.553 and 591 of 2017 on the file of Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai. 2. Both the appeals are arising out of the same accident and common award and hence, they are disposed of by this common judgment. 3. The appellants are claimants in M.C.O.P.Nos.553 and 591 of 2017 on the file of Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai. They filed the said claim petition claiming a sum of Rs.50,00,000/- each as compensation for the death of one Pachaiyappan and one Nethaji respectively, who died in the accident that took place on 23.04.2017. 4. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of private bus belonging to the 1st respondent and directed the 2nd respondent/Insurance Company being insurer of the said bus to pay a sum of Rs.12,02,584/- and Rs.11,21,799/- as compensation to the appellants respectively at the first instance and recover the same from the 1st respondent, owner of the private bus, as he has violated the policy conditions. 5. Not being satisfied with the amounts awarded by the Tribunal, the appellants have come out with the present appeals seeking enhancement of compensation. 6. The learned counsel appearing for the appellants contended that in C.M.A.No.1997 of 2021 (M.C.O.P.No.553 of 2017), the deceased Pachaiyappan was aged 45 years at the time of accident, he was working as a Mason and was earning a sum of Rs.20,000/- per month. The Tribunal without considering the same, fixed only a meagre sum of Rs.7,000/- per month as notional income of the deceased. In C.M.A.No.2004 of 2021 (M.C.O.P.No.591 of 2017), the deceased Nethaji was aged 16 years at the time of accident, he was working as a Mason and was earning a sum of Rs.20,000/- per month. The Tribunal without considering the same, fixed only a meagre sum of Rs.7,000/- per month as notional income of the deceased. In C.M.A.No.2004 of 2021 (M.C.O.P.No.591 of 2017), the deceased Nethaji was aged 16 years at the time of accident, he was working as a Mason and was earning a sum of Rs.20,000/- per month. The Tribunal without considering the same, fixed only a meagre sum of Rs.7,000/- per month as notional income of the deceased. The amounts awarded by the Tribunal under different heads are meagre and prayed for enhancement of compensation. 7. Per contra, the learned counsel appearing for the 2nd respondent/Insurance Company contended that the appellants have not filed any document with regard to avocation and income of the deceased persons. In the absence of any material with regard to avocation and income of the deceased persons, the Tribunal fixed a sum of Rs.7,000/- per month as notional income of the deceased persons in both the claim petitions, which are excessive. The Tribunal afterconsidering all the materials on record, awarded compensation, which is not meagre. The appellants have not made out any case for enhancement of compensation and prayed for dismissal of both the appeals. 8. The 1st respondent remained exparte before the Tribunal and hence, notice to the 1st respondent is dispensed with. 9. Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the 2nd respondent/Insurance Company and perused the entire materials available on record. 10. In C.M.A.No.1997 of 2021 (M.C.O.P.No.553 of 2017), it is the contention of the appellants that the deceased Pachaiyappan was working as a Mason at the time of accident and was earning a sum of Rs.20,000/- per month. The appellants failed to substantiate the said contention. The Tribunal in the absence of any evidence with regard to avocation and income of the deceased, fixed a sum of Rs.7,000/- per month as notional income of the deceased. The accident is of the year 2017 and the notional income fixed by the Tribunal is meagre. Considering the age and nature of work done by the deceased, a sum of Rs.13,000/- per month is fixed as notional income of the deceased. As per Ex.P3/Post-mortem certificate, the deceased was aged 45 years at the time of accident. The Tribunal, following the judgments of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National   Insurance Co. Ltd., Vs. As per Ex.P3/Post-mortem certificate, the deceased was aged 45 years at the time of accident. The Tribunal, following the judgments of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National   Insurance Co. Ltd., Vs. Pranay Sethi and others] and 2009 (2) TNMAC 1 SC (Sarla Verma and others vs. Delhi Transport Corporation and another), has rightly granted 25% enhancement towards future prospects and applied multiplier 14'. There are four dependants of the deceased and the Tribunal has rightly deducted 1/4th towards personal expenses. Thus, by fixing Rs.13,000/- as the monthly income of the deceased, the compensation awarded by the Tribunal towards loss of dependency is modified to Rs.20,47,500/- (Rs.13,000/- + 3250 [Rs.13,000/- X 25%] X 12 X 14 X 3/4). A sum of Rs.30,000/- awarded by the Tribunal towards loss of love and affection to the appellants 2 to 4 are meagre and hence, the same are hereby enhanced to Rs.40,000/- each. The amounts awarded by the Tribunal under all other heads are just and reasonable and hence, the same are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows: S.No Description Amount   awarded by   Tribunal   (Rs) Amount awarded   by this Court   (Rs) Award   confirmed or   enhanced or   granted or   reduced 1. Loss of   dependency 11,02,584 20,47,500 Enhanced 2. Loss of   consortium to   the 1st appellant 40,000 40,000 Confirmed 3. Loss of love   and affection to   the appellants 2 to 4 30,000 1,20,000 Enhanced 4. Funeral   expenses 15,000 15,000 Confirmed 5. Loss of estate 15,000 15,000 Confirmed Total 12,02,584 22,37,500 Enhanced by   Rs.10,34,916/- 11. In C.M.A.No.2004 of 2021 (M.C.O.P.No.591 of 2017), it is the contention of the appellants that the deceased Nethaji was working as a Mason at the time of accident and was earning a sum of Rs.20,000/- per month. The appellants failed to substantiate the said contention. The Tribunal in the absence of any evidence with regard to avocation and income of the deceased, fixed a sum of Rs.7,000/- per month as notional income of the deceased. The accident is of the year 2017 and the notional income fixed by the Tribunal is meagre. Considering the age and nature of work, a sum of Rs.9,000/- per month is fixed as notional income of the deceased. As per Ex.P5/Post-mortem certificate, the deceased was aged 16 years at the time of accident. The accident is of the year 2017 and the notional income fixed by the Tribunal is meagre. Considering the age and nature of work, a sum of Rs.9,000/- per month is fixed as notional income of the deceased. As per Ex.P5/Post-mortem certificate, the deceased was aged 16 years at the time of accident. The Tribunal, following the judgments of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others] and 2009 (2) TNMAC 1 SC (Sarla Verma and others vs. Delhi Transport Corporation and another), has rightly granted 40% enhancement towards future prospects and applied multiplier 18'. The deceased died as a bachelor and the Tribunal has rightly deducted 50% towards personal expenses. Thus, by fixing the monthly income of the deceased as Rs.9,000/-, the compensation awarded by the Tribunal towards loss of dependency is modified to Rs.13,60,800/- (Rs.9,000/- + 3600 [Rs.9,000/- X 40%] X 12 X 18 X 1/2). The Tribunal has awarded a sum of Rs.10,000/- each towards loss of love and affection to the appellants, which is meagre. The appellants 1 and 2, who are the parents of the deceased have lost their son at his tender age and hence, this Court awards a sum of Rs.40,000/- each towards loss of love and affection to the appellants 1 and 2. A sum of Rs.10,000/- awarded by the Tribunal towards loss of love and affection to the 3rd appellant, brother of the deceased is hereby confirmed. The amounts awarded by the Tribunal under all other heads are just and reasonable and hence, the same are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows: S.No Description Amount   awarded by   Tribunal   (Rs) Amount awarded   by this Court (Rs) Award   confirmed or   enhanced or   granted or   reduced 1. Loss of   dependency 10,58,400 13,60,800 Enhanced 2. Loss of love   and affection to   the appellants 1   and 2 20,000 80,000 Enhanced 3. Loss of love   and affection to   the 3rd   appellant 10,000 10,000 Confirmed 4. Funeral   expenses 15,000 15,000 Confirmed 5. Loss of estate 15,000 15,000 Confirmed 6. Medical   expenses 3,399 3,399 Confirmed Total 11,21,799 14,84,199 Enhanced by   Rs.3,62,400/- 12. Loss of   dependency 10,58,400 13,60,800 Enhanced 2. Loss of love   and affection to   the appellants 1   and 2 20,000 80,000 Enhanced 3. Loss of love   and affection to   the 3rd   appellant 10,000 10,000 Confirmed 4. Funeral   expenses 15,000 15,000 Confirmed 5. Loss of estate 15,000 15,000 Confirmed 6. Medical   expenses 3,399 3,399 Confirmed Total 11,21,799 14,84,199 Enhanced by   Rs.3,62,400/- 12. In the result, both the Civil Miscellaneous Appeals are partly allowed and the compensation awarded by the Tribunal at Rs.12,02,584/- (C.M.A.No.1997 of 2021) and Rs.11,21,799/- (C.M.A.No.2004 of 2021) are hereby enhanced to Rs.22,37,500/- and Rs.14,84,199/- respectively together with interest at the rate of 7.5% per annum (excluding the default period, if any) from the date of petitions till the date of deposit. The 2nd respondent/Insurance Company is directed to deposit the award amount now determined by this Court in both the appeals, along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment at the first instance and recover the same from the 1st respondent, owner of the vehicle. On such deposit, the appellants 1, 2 and 4 in C.M.A.No.1997 of 2021 and appellants 1 and 2 in C.M.A.No.2004 of 2021 are permitted to withdraw their share of the award amount now determined by this Court, along with proportionate interest and costs, as per the apportionment fixed by the Tribunal, less the amount if any, already withdrawn. The share amounts of the minors, 3rd appellants in both the appeals are directed to be deposited in any one of the Nationalised Banks till the minors attain majority. The 1st appellants in both the appeals being mother of the minors are permitted to withdraw the accrued interest once in three months for the welfare of the minors. The appellants in both the appeals are directed to pay the necessary Court fee on the enhanced award amounts as per the order of this Court dated 09.07.2021 made in C.M.P.Nos.9954 and 9956 of 2021 in C.M.A.SR.Nos.46743 and 46742 of 2021. No costs. Consequently, connected Miscellaneous Petition is closed.