Balan v. K.Govindarajan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2021
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL C.M.A.No.851 of 2020 1.Balan 2.B.Muneeswari 3.B.Manikandan 4.Minor. B.Arunkumar .. Appellants/Petitioners (Minor 4th appellant represented by his Father Balan, 1st appellant herein) Vs.
1.K.Govindarajan 2.The Divisional Manager, The New India Assurance Company Limited, Do, 1 Bharathi Road, Cuddalore - 607 001.
3.K.Mary 4.The Divisional Manager, The New India Assurance Company Limited, Do, 1 Bharathi Road, Cuddalore - 607 001.
.. Respondents/Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated 15.11.2019 made in M.C.O.P.No.570 of 2014, on the file of the Motor Accidents Claims Tribunal, Special Sub Court (FAC), Cuddalore.
For Appellants :
Ms.Ramya V.Rao for Mr.A.N.Viswanatha Rao For RR 2 & 4 :
Ms.Saraswathi
J U D G M E N T
(The matter is heard through "Video Conferencing/Hybrid mode".) This Civil Miscellaneous Appeal has been filed for enhancement of compensation granted by the Tribunal in the award
dated 15.11.2019 made in M.C.O.P.No.570 of 2014, on the file of the Motor Accidents Claims Tribunal, Special Sub Court (FAC), Cuddalore.
2.The appellants are the claimants in M.C.O.P.No.570 of 2014, on the file of the Motor Accidents Claims Tribunal, Special Sub Court (FAC), Cuddalore. The claimants filed the above said claim petition, claiming a sum of Rs.20,00,000/- as compensation for the death of one Krishnaveni, who died in the accident that took place on 30.12.2013.
3.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 Mini Bus belonging to 1st respondent and directed the 2nd respondent to pay a sum of Rs.10,82,500/- as compensation to the appellants at the first instance and recover the same from the 1st respondent and dismissed the claim petition as against the respondents 3 & 4. 4.Not being satisfied with the amounts awarded by the Tribunal, the appellants have come out with the present appeal seeking enhancement of compensation.
5.The learned counsel appearing for the appellants contended that at the time of accident the deceased was aged 40 years, was working as Tea Leaf Plucker in Waterfall Private Limited, Tea Estate, Valparai and was earning a sum of Rs.15,000/- per month. But, the Tribunal erroneously fixed a meagre sum of Rs.6,000/- per month as notional income of the deceased and awarded compensation. The Tribunal ought to have fixed a sum of Rs.15,000/- per month as notional income of the deceased and awarded compensation for loss of dependency. The Tribunal has not awarded any amount towards loss of love and affection and prayed for enhancement of compensation. 6.Per contra, learned counsel appearing for the 2nd respondent contended that the claimants have not produced any document to prove the avocation and income of the deceased.
In the absence of any material evidence with regard to avocation and income, a sum of Rs.6,000/- per month fixed by the Tribunal as notional income of the deceased is not meagre. The Tribunal considering the entire materials on record, has awarded a sum of Rs.10,82,500/- as compensation to the appellants and the same is not meagre. The appellants have not made out any case for enhancement of compensation and prayed for dismissal of the appeal.
7.Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the respondents 2 & 4 and perused the entire materials on record.
8.From the materials available on record, it is seen that at the time of accident the deceased was aged 40 years, was working as Tea Leaf Plucker in Waterfall Private Limited, Tea Estate, Valparai and was earning a sum of Rs.15,000/- per month. Except oral evidence, the claimants have not produced any material evidence to prove the avocation and income of the deceased. In the absence of any material evidence with regard to avocation and income of the deceased, the Tribunal considering the year of accident and nature of work done by the deceased, fixed a sum of Rs.6,000/- per month as notional income of the deceased. The accident is of the year 2013 and the notional income fixed by the Tribunal is meagre. Considering the year of accident, age and nature of work done by the deceased, a sum of Rs.
10,000/- per month is fixed as notional income of the deceased. As per Ex.P5/Postmortem Certificate, the deceased was aged 40 years at the time of accident. The Tribunal following the judgments of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme Court, [Sarla Verma & others Vs. Delhi Transport Corporation & another] and 2017 (2) TNMAC 609 (SC), [National Insurance Company Limited Vs. Pranay Sethi and others] rightly applied multiplier '15' and granted 25% enhancement towards future prospects. Thus, by fixing a sum of Rs.10,000/- per month as notional income of the deceased, the compensation awarded by the Tribunal towards loss of dependency is modified to Rs.16,87,500/- {Rs.12,500/- [Rs.10,000/- + Rs.2,500/- (25% of Rs.10,000/-)] X 12 X 15 X 3⁄4}.
4. The appellants 2 to 4, being the children of the deceased are entitled to a sum of Rs.40,000/- each towards loss of love and affection. The amounts awarded by the Tribunal towards funeral expenses, loss of estate and loss of consortium to 1st appellant are just and reasonable and hence, the same are hereby confirmed.
9.It is well settled that the Tribunal and the Courts have to award just compensation. Though the claimant has claimed lesser compensation, the Courts have power to grant just compensation more than the amount claimed by the claimants. 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 10,12,500/- 16,87,500/- Enhanced
S.
No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted
2. Loss of consortium to 1st appellant 40,000/- 40,000/- Confirmed
3. Funeral expenses 15,000/- 15,000/- Confirmed
4. Loss of estate 15,000/- 15,000/- Confirmed
5. Loss of love and affection to appellants 2 to 4 - 1,20,000/- Granted Total Rs.10,82,500/- Rs.18,77,500/- Enhanced by Rs.7,95,000/- 10.In the result, this Civil Miscellaneous Appeal is allowed and the compensation awarded by the Tribunal at Rs.10,82,500/- is hereby enhanced to Rs.18,77,500/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2nd respondent is directed to deposit the 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 to the credit of M.C.O.P.No.570 of 2014, on the file of the Motor Accidents Claims Tribunal, Special Sub Court (FAC), Cuddalore, at the first instance and recover the same from the 1st respondent.
On such deposit, the appellants 1 to 3 are permitted to withdraw their respective share of the award amount now determined by this Court, as per the ratio of apportionment fixed by the Tribunal, along with proportionate interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The share of the minor 4th appellant is directed to be deposited in any one of the Nationalized Banks, till the minor 4th appellant attains majority. On such deposit, the 1st appellant, being the Father of the minor 4th appellant is permitted to withdraw the accrued interest once in three months for the welfare of the minor 4th appellant. The respondents 2 and 4 are same party, to which both the vehicles belonging to 1st respondent and 3rd respondent are insured with.
The negligence is fixed on the driver of the mini bus belonging to 1st respondent and hence, the 2nd respondent being the insurer of the mini bus belonging to 1st respondent is liable to pay the compensation to the appellants.
Company is not liable to pay any compensation. Hence, this appeal is dismissed as against the respondents 3 and 4. The appellants are directed to pay the necessary Court fee on the enhanced amount of compensation now determined by this Court. No costs.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar krk To 1.The Special Subordinate Judge (FAC), Motor Accident Claims Tribunal, Cuddalore.
2.The Section Officer, VR Section, High Court, Madras.
+1cc to Mr.A.N.Viswanatha Rao, Advocate, S.R.No.29917(17/09/21) C.M.A.No.851 of 2020 PP(CO) GN(16/09/2021)