Jayalakshmi v. Somasundaram

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.02.2019

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.No.1362 of 2019 1.Jayalakshmi 2.Anandhi 3.Punithavalli 4.Iyyappan 5.Prakash .. Appellants Vs.

1.Somasundaram 2.The Branch Manager, United India Insurance Co. Ltd., P.B.No: 172, 261, J.N.Street, Puducherry.

.. Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 04.07.2017 made in M.C.O.P.No.236 of 2014 on the file of the Motor Accident Claims Tribunal, III Additional District Court (FAC), Puducherry.

For Appellants : Ms.T.Anusuya For R2 : Mr.J.Chandran

J U D G M E N T

The Civil Miscellaneous Appeal is filed by the appellants/claimants seeking enhancement of compensation granted by the Tribunal in the award dated 04.07.2017 made in M.C.O.P.No.236 of 2014 on the file of the Motor Accident Claims Tribunal, III Additional District Court (FAC), Puducherry.

2.By consent of both the learned counsel appearing for the appellants and 2nd respondent, the appeal is taken up for final disposal at the stage of admission itself.

3.The appellants are claimants in M.C.O.P.No.236 of 2014 on the file of the Motor Accident Claims Tribunal, III Additional District Court (FAC), Puducherry. They filed the said claim petition claiming a sum of Rs.35,00,000/- as compensation for the death of one Thillaigovindan, who died in the accident that took place on 10.01.2014.

The Tribunal, considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the Tata Indica car belonging to the 1st respondent and directed the 2nd respondent/Insurance Company being insurer of the said car to pay a sum of Rs.10,62,600/- as compensation to the appellants. Not being satisfied with the amount awarded by the Tribunal, the appellants have come out with the present appeal seeking enhancement of compensation.

4.The learned counsel appearing for the appellants/claimants contended that the deceased was working as a Masan (temple statue maker) and was earning Rs.700/- per day. To prove the same, P.W.3 was examined and Ex.P17/salary certificate was marked. The Tribunal without considering the same, has erroneously fixed a sum of Rs.6,000/- per month as notional income of the deceased. The amounts awarded by the Tribunal towards loss of consortium and funeral expenses are meagre. The Tribunal ought to have awarded some compensation towards loss of amenities and transportation and prayed for enhancement of compensation.

5.Per contra, the learned counsel appearing for the 2nd respondent/Insurance Company contended that P.W.3 has not stated that the deceased was paid Rs.700/- per day. In the absence of any evidence, the Tribunal has fixed a sum of Rs.6,000/- per month as notional income of the deceased, which is excessive. The Tribunal after considering all the materials available on record in proper perspective, awarded compensation, which is not meagre. The appellants have not made out any case for enhancement of compensation and prayed for dismissal of the appeal.

6.Heard the learned counsel appearing for the appellants as well as the 2nd respondent/Insurance Company and perused all the materials available on record.

7.From the materials available on record, it is seen that the appellants have contended that the deceased was a masan (temple statue maker) and was earning a sum of Rs.20,000/- per month. P.W.3 was examined to prove the same. The Tribunal

considering the evidence of P.W.3 held that P.W.3 has not stated that the deceased was paid Rs.700/- per day. In the absence of evidence, the Tribunal has fixed a sum of Rs.6,000/- per month as notional income of the deceased and awarded 30% enhancement towards future prospects. The accident is of the year 2014. The notional income fixed by the Tribunal is meagre. This Court fixes a sum of Rs.8,000/- per month as notional income of the deceased. Further 30% enhancement awarded by the Tribunal towards future prospects is on the higher side. This Court awards 25% enhancement towards future prospects as the deceased was aged 50 years at the time of accident as per the post-mortem certificate. The loss of dependency awarded by the Tribunal is modified to Rs.11,70,000/- (Rs.8,000/- + 2000 (Rs.8,000/- X 25%) X 12 X 13 X 3/4). A sum of Rs.

25,000/- awarded by the Tribunal towards loss of consortium is meagre and the same is enhanced to Rs.40,000/-. Appellants are not entitled to the sum of Rs.1,00,000/- awarded by the Tribunal towards loss of love and affection and the same is hereby set aside. A sum of Rs.25,000/- awarded by the Tribunal towards funeral expenses is on the higher side and the same is reduced to Rs.15,000/-. No amount is granted by the Tribunal towards loss of estate. This Court awards a sum of Rs.15,000/- towards loss of estate. 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 9,12,600 11,70,000 Enhanced 2.

Loss of consortium 25,000 40,000 Enhanced 3.

Loss of love & affection to the appellants 2 to 5 1,00,000 - Set aside 4.

Funeral expenses 25,000 15,000 Reduced 5.

Loss of estate - 15,000 Granted Total Rs.10,62,600 /- Rs.12,40,000 /- Enhanced by Rs.1,77,400/ - 8.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.10,62,600/- is hereby enhanced to Rs.12,40,000/- along with interest at the rate of 7.5% per annum from the date of petition

till the date of deposit. The appellants/claimants are directed to pay necessary Court fee, if any, on the enhanced compensation. It is made clear that the appellants/claimants shall not be entitled for any interest for the delay period on the amount enhanced by this Court. The 1st appellant being wife of the deceased is entitled to a sum of Rs.5,40,000/- and the appellants 2 to 5 being daughters and sons of the deceased are entitled to a sum of Rs.1,75,000/- each as compensation. The 2nd respondent/Insurance Company is directed to deposit entire award amount now determined by this Court 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. On such deposit, the appellants/claimants are permitted to withdraw their respective share of the award amount along with proportionate interest and costs, less the amount if any, already withdrawn. No costs.

Sd/- Assistant Registrar(CS-V) //True copy// Sub Assistant Registrar kj To The III Additional District Judge (FAC), Motor Accidents Claims Tribunal, Puducherry.

+1cc to Mr.R.Sreedhar, Advocate SR.No.18168 +1cc to Mr.J.Chandran, Advocate SR.No.18360 C.M.A.No.1362 of 2019 RR(CO) GMY(10/10/2019)