Jayanthi v. India Trans

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.09.2023 CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN Jayanthi ... Appellant

Versus

1.India Trans, having office at New No.156, Old No.254, Thambu Chetty Street, Chennai-600 001.

(R1 remained ex-parte before the Tribunal) 2.The New India Assurance Company Limited, Divisional Office - II, Regina Mansion, No.46, Moore Street, Chennai - 600 002.

... Respondents PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 02.08.2022 and made in M.A.C.T.O.P.No.784 of 2017 on the file of the Motor Accident Claims Tribunal, IV Additional District and Sessions Judge, Thiruvallur at Ponneri.

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For Appellant : Mr.A.G.F.Terry Chella Raja For R2 : Ms.A.Salomi

JUDGMENT

The appellant/claimant preferred the above appeal seeking enhancement of compensation.

2.The appellant filed the claim petition stating that on 29.05.2016 at about 10:20 pm., while the deceased was riding his Scooter, the offending vehicle viz., the lorry, insured with the 2nd respondent herein came in a rash and negligent manner, dashed the vehicle ridden by the deceased; that as a result of which, the deceased sustained fatal injuries and thus, the appellant was entitled for compensation. 3.The 1st respondent-owner of the offending vehicle remained exparte before the Tribunal. 4.The 2nd respondent/Insurance Company resisted the claim petition stating that the driver of the lorry did not possess valid driving license; that in any case, the accident took place only due to the negligence of the deceased; and that in any event, the compensation 2/8

claimed by the appellant was excessive and prayed for dismissal of the claim petition.

5.Before the Tribunal, the appellant examined PW.1 and PW.2 and marked Ex.P1 to Ex.P13. The 2nd respondent had neither examined any witness nor marked any document.

6.The Tribunal after taking into consideration the evidence on record, held that the accident took place only due to the negligence act of the driver of the lorry, insured with the 2nd respondent and directed the 2nd respondent to pay a sum of Rs.10,19,480/-, as compensation to the appellant.

7.The learned counsel for the appellant submitted that though the appellant had established the fact that the deceased was working as Welder and earned a sum of Rs.25,000/- per month, the Tribunal had fixed monthly notional income of Rs.6,600/-, which is meagre and therefore, prayed for enhancement of compensation. 3/8

8.The learned counsel for the appellant further submitted that the 1st respondent remained ex-parte before the Tribunal and therefore, he requested this Court to dispense with notice to the 1st respondent and had also made an endorsement to that effect. Hence, notice to the 1st respondent is dispensed with.

9.The learned counsel for the 2nd respondent per contra submitted that the appellant neither proved the avocation nor the income of the deceased. In such circumstances, the Tribunal was right in fixing the notional income at Rs.6,600/- per month and hence prayed for dismissal of the appeal.

10.The only question involved in the instant appeal is whether the compensation awarded by the Tribunal is just and reasonable? 11.On perusal of the records, it is seen that the appellant had examined herself as P.W.1 and stated that the deceased aged 28 years was employed as Welder. However, no document had been filed either to establish the avocation or the income of the deceased. Considering the age of the deceased, his avocation, the year of accident and the appellant4/8

mother of the deceased was dependant of the deceased, this Court is of the view that, it would be just and reasonable to fix the notional income at Rs.13,000/- per month. Further, the appellant is entitled for 40% enhancement towards future prospects and the correct multiplier applicable is 17. After deducting 50% towards personal expenses, the award of compensation under the head loss of income or dependancy has to be as follows:

Rs.18,200/- (Rs.13,000 + 40%) X 12 X 17 X 1/2 = Rs.18,56,000/-. The amount awarded by the Tribunal under other heads is just and reasonable and the same are 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 9,42,480 18,56,000 Enhanced 2.

Loss of Estate 16,500 16,500 Confirmed 3.

Loss of Consortium 44,000 44,000 Confirmed 4.

Funeral Expenses 16,500 16,500 Confirmed Total 10,19,480 19,33,000 Enhanced by Rs.9,13,520/- 5/8

12.With the above modification, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.10,19,480/- is hereby enhanced to Rs.19,33,000/- together with interest at 7.5% per annum (excluding the default period, if any) from the date of petition till the date of deposit. The 2rd respondent/Insurance Company 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 (6) weeks from the date of receipt of a copy of this Judgment. On such deposit, the appellant is permitted to withdraw the entire award amount along with interest and costs, less the amount if any, already withdrawn. The appellant is directed to pay the necessary Court fee, if any, on the enhanced award amount. No costs. 13.09.2023 rst/dpa Index: Yes/No Speaking Order / Non-Speaking Order 6/8

To:

1.The IV Additional District and Sessions Judge, The Motor Accident Claims Tribunal, Thiruvallur at Ponneri.

2.The Section Officer, VR Section, High Court, Madras.

SUNDER MOHAN, J.

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