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2022 DIGILAW 1353 (MAD)

Saroja v. M. Sathish Kumar

2022-06-10

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 20.12.2019, made in M.C.O.P. No.1766 of 2017, on the file of the Special Sub Court-II, (Motor Accident Claims Tribunal) Small Causes Court, Chennai. This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 20.12.2019, made in M.C.O.P. No.1766 of 2017, on the file of the Special Sub Court-II, (Motor Accident Claims Tribunal) Small Causes Court, Chennai.) Common Judgment V.M. Velumani, J. 1. C.M.A.No.2122 of 2021 has been filed by the appellants-claimants seeking enhancement of compensation granted by the Tribunal in the award dated 20.12.2019, made in M.C.O.P. No.1766 of 2017, on the file of the Special Sub Court-II, (Motor Accident Claims Tribunal) Small Causes Court, Chennai. C.M.A.No.2433 of 2021 has been filed by the appellant-Insurance Company challenging the quantum of compensation granted by the Tribunal in the award dated 20.12.2019, made in M.C.O.P. No.1766 of 2017, on the file of the Special Sub Court-II, (Motor Accident Claims Tribunal) Small Causes Court, Chennai. 2. Both the appeals arise out of same accident and same award and hence, disposed of by this common judgment. 3. The parties are referred to as per their ranks in the claim petition, for the sake of convenience. 4. The claimants filed M.C.O.P. No.1766 of 2017, on the file of the Special Sub Court-II, (Motor Accident Claims Tribunal) Small Causes Court, Chennai, claiming a sum of Rs.60,00,000/- as compensation for the death of one Sivalingam who died in the accident that took place on 01.01.2017. 5. According to the claimants, on the date of accident, at about 12.55 a.m., when the deceased Sivalingam was travelling in a Motorcycle bearing Registration No.TN-09-CF-2497 as a pillion rider, from South to North direction at Anna Salai and Pallavan Salai Junction, the 1st respondent, who is the rider-cum-owner of the Motorcycle drove the vehicle in a rash and negligent manner in high speed, as a result of which, the vehicle skidded and accident occurred. Both the rider as well as the pillion rider were thrown out of the vehicle. In the accident, the said Sivalingam sustained fatal injuries. Both the rider as well as the pillion rider were thrown out of the vehicle. In the accident, the said Sivalingam sustained fatal injuries. The accident occurred only due to rash and negligent riding of Motorcycle by the 1st respondent and hence, the claimants filed the claim petition for the death of Sivalingam, against the respondents who are the owner and insurer of the said Motorcycle. 6. The 2nd respondent-Insurance Company filed counter statement and denied all the averments made by the claimants. According to the 2nd respondent, the deceased Sivalingam, after celebrating new year, while travelling in the Motorcycle under the influence of alcohol, the vehicle skidded and the deceased fell down from the vehicle and sustained fatal injuries. The complaint was given belatedly after the demise of the deceased with an ulterior motive to make an untenable claim. Hence, this respondent is not liable to pay any compensation to the claimants. The claimants have to prove that the rider of the Motorcycle possessed valid driving license to ply the vehicle at the time of accident. In any event, the claimants also have to prove the age, avocation and income of the deceased to claim compensation and prayed for dismissal of the claim petition. 7. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent riding by the 1st respondent, rider-cum-owner of the Motorcycle and directed the 2nd respondent-Insurance Company to pay a sum of Rs.20,75,600/- as compensation to the claimants 1 and 2. The Tribunal dismissed the claim petition as against the claimants 3 to 6. 8. Not being satisfied with the amounts awarded by the Tribunal, the claimants have filed C.M.A.No.2122 of 2021, seeking enhancement of compensation. 9. Questioning the quantum of compensation granted by the Tribunal in the award dated 20.12.2019, made in M.C.O.P. No.1766 of 2017, the 2nd respondent-Insurance Company has come out with C.M.A.No.2433 of 2021. 10. The learned counsel appearing for the claimants submitted that at the time of accident, the deceased Sivalingam was aged 21 years, working as a Sales Assistant in Meat and Fish Shop and was earning a sum of Rs25,000/- per month. To substantiate the avocation and income, the claimants examined the employer of the deceased as P.W.2. 10. The learned counsel appearing for the claimants submitted that at the time of accident, the deceased Sivalingam was aged 21 years, working as a Sales Assistant in Meat and Fish Shop and was earning a sum of Rs25,000/- per month. To substantiate the avocation and income, the claimants examined the employer of the deceased as P.W.2. The Tribunal, without considering the evidence of P.W.2, fixed only a meagre sum of Rs.13,000/- per month as notional income of the deceased. The Tribunal erred in deducting 50% towards personal expenses of the deceased, while there are 4 sisters of the deceased, out of which only one was married and the remaining 3 sisters were dependent on the deceased, as their father was an aged person. The Tribunal ought to have awarded compensation under the heads of damages, loss of estate, loss of expectation of life, transport expenses, pain and sufferings, medical expenses and mental agony, etc. The total compensation awarded by the Tribunal is meagre and prayed for enhancement of the same. 11. The learned counsel appearing for the 2nd respondent-Insurance Company contended that the claimants did not file any document to prove the avocation and income of the deceased. In the absence of any proof with regard to avocation and income of the deceased, the Tribunal rejected the evidence of P.W.2 and erroneously fixed a sum of Rs.13,000/- per month as notional income of the deceased. The Tribunal failed to consider the fact that had the deceased been alive, he would have got married and contributed his 70% of earning to his family. Without considering the said fact, the Tribunal erroneously granted 40% enhancement towards future prospects. The total compensation awarded by the Tribunal is excessive and prayed for reducing the compensation granted and dismissal of C.M.A.No.2122 of 2021, filed by the claimants. 12. Heard the learned counsel appearing for the claimants as well as the 2nd respondent-Insurance Company and perused the materials available on record. 13. It is the case of the claimants that at the time of accident, the deceased was aged 21 years, working as a Sales Assistant in Meat and Fish Shop and was earning a sum of Rs.25,000/- per month. They examined P.W.2, owner of the Fish Stall to prove the same. 13. It is the case of the claimants that at the time of accident, the deceased was aged 21 years, working as a Sales Assistant in Meat and Fish Shop and was earning a sum of Rs.25,000/- per month. They examined P.W.2, owner of the Fish Stall to prove the same. The Tribunal did not accept the evidence of P.W.2 on the ground that P.W.2 has not filed documents with regard to Bank Statement and Voucher. Following the judgment of the Division Bench of this Court reported in 2019 (1) TN MAC 54 (DB) [Andal and others Vs. Avinav Kannan and other], the Tribunal arrived at a sum of Rs.13,000/- per month as notional income of the deceased. The accident is of the year 2017. Considering the year of accident and nature of work done by the deceased, the notional income fixed by the Tribunal is meagre and the same is enhanced to Rs.13,500/- per month. The Tribunal has granted 40% enhancement towards future prospects. From Ex.P3 – Post mortem report, it is seen that the deceased Sivalingam was aged 20 years at the time of accident. The Tribunal considering the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme Court [Sarla Verma & others vs. Delhi Transport Corporation & another], has applied the correct multiplier 18'. The contention of the learned counsel appearing for the claimants that the deceased had 4 sisters and deduction of 50% is erroneous cannot be accepted. The deceased was a bachelor at the time of accident. Hence, the Tribunal following the judgment of the Hon'ble Apex Court, has rightly deducted 50% towards personal expenses of the deceased. By fixing the monthly income at Rs.13,500/-, granting 40% enhancement towards future prospects, applying multiplier 18' and deducting 50% towards personal expenses of the deceased, the amount granted by the Tribunal towards loss of dependency is modified to Rs.20,41,200/- {[Rs.13,500/- + Rs.5,400/- (40% of Rs.13,500/-)] x 12 x 18 x 50%}. The amounts awarded by the Tribunal under 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 1. Loss of dependency 19,65,600/- 20,41,200/- Enhanced 2. Loss of filial consortium to claimants 1 and 2 80,000/- 80,000/- Confirmed 3. 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 1. Loss of dependency 19,65,600/- 20,41,200/- Enhanced 2. Loss of filial consortium to claimants 1 and 2 80,000/- 80,000/- Confirmed 3. Funeral expenses 15,000/- 15,000/- Confirmed 4. Loss of estate 15,000/- 15,000/- Confirmed Total 20,75,600/- 21,51,200/- Enhanced by Rs.75,600/- 14. In the result, C.M.A.No.2122 of 2021 is partly allowed and C.M.A.No.2433 of 2021 is dismissed. The amounts awarded by the Tribunal at Rs.20,75,600/- is enhanced to Rs.21,51,200/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2nd respondent-Insurance Company is directed to deposit the award amount, now determined by this Court, along with interest and costs, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.1766 of 2017. On such deposit, the claimants 1 and 2 are permitted to withdraw their share of the award amount, now determined by this Court, along with proportionate interest and costs, as per the ratio of apportionment fixed by the Tribunal, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. Both the appeals are dismissed as against the claimants 3 to 6, as held by the Tribunal. The claimants are directed to pay the necessary court fee on the enhanced award amount, as per the direction of this Court dated 19.07.2021, made in C.M.P.No.10497 of 2021 in C.M.A.SR.78510 of 2020. Consequently, connected Miscellaneous Petition is closed. No costs.