Kalaiarasi And Two Others v. Chinnasamy,Oriental Insurence Co Ltd.,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.02.2023 PRONOUNCED ON : 06.04.2023
CORAM:
THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI 1.Kalaiarasi 2.V.Kalaiselvan 3.Kathiravan ... Appellants vs.
1.Chinnasamy 2.Ganesan 3.The Branch Manager, Oriental Insurance Company Ltd., The Oriental Insurance Co.Ltd., Vth Floor, Lakshmi Complex, No.75-B/1, Salai Road, Thillai Nagar (East), Trichy.
... Respondents (1st and 2nd respondents in the above appeal are remind exparte before the Tribunal. Hence they are given up, since no order has been passed against them).
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the award judgment and decree dated 19.01.2017 in M.C.O.P.No.73 of 2011 on the file of the Motor Accident Claims Tribunal and Subordinate Judge, Attur, Salem District. 1/9
For Appellants : Mr.E.Kannadasan For Respondents : Mrs.R.Srividhya [R3]
JUDGMENT
The claimants 1 to 3 have filed this Civil Miscellaneous Appeal against the judgment and decree passed on 19.01.2017 in M.C.O.P.No.73 of 2011, by the Motor Accident Claims Tribunal / Subordinate Judge, Attur, Salem District for enhancement of compensation.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, for a claim of Rs.15,00,000/- as compensation on account of the death of Kalaivanan during the road accident that had occurred on 15.11.2010.
3. The learned counsel for the appellants would contend that the compensation awarded by the Tribunal is very meagre and for the personal expenses, instead of deducting 1/3rd, 50% of the income was deducted by the Tribunal which is not correct and the contributory negligence fixed on the deceased was without any evidence. The monthly income should have been taken as Rs.6,500/- and the amount awarded under other heads are also not sufficient.
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4. Per contra, the learned counsel for the 3rd respondent/Insurance Company would vehemently argue that after due consideration, award for an amount of Rs.7,54,000/- was passed and it was restricted to Rs.3,77,000/- as compensation by fixing the contributory negligence on the deceased at 50% is quite reasonable and well considered order passed by the Tribunal need not be interfered with.
5. Heard the rival submissions of learned counsels of both sides and perused the entire material records.
6. The Tribunal upon hearing both sides argument and based on both sides evidence, has passed an award for an amount of Rs.3,77,000/-, after holding that the deceased also contributed negligence to the tune of 50% (total compensation of Rs.7,54,000/-).
7. To prove the factum of negligence, mother and brothers of the deceased have spoken about the manner in which the accident had occurred. It could be inferred that in order to avoid hitting the two wheeler of the deceased, when the deceased turned to the right side and due to which he succumbed to the injuries on the spot. It is also clear that had the driver of the bus which belongs to the 1st respondent slowed down his 3/9
vehicle, the accident could have been averted.
8. So also the finding of the Tribunal to the effect that as the deceased tried to overtake another bus, and hit on the bus of the 1st respondent, both the deceased as well as the driver of the 1st respondent's bus are responsible for the accident. Therefore, the Tribunal was correct in fixing 50% as contributory negligence on the deceased which need not be disturbed.
9. From the evidence of PW1 and PW2, it is seen that the deceased was working as an electrician. To substantiate the same, no document was filed and marked. As per the law laid down in Syed Sadiq v. United India Insurance Company Ltd., reported in 2014 (1) TN MAC 459 (SC), the Hon'ble Supreme Court has fixed the income of a person who was doing vegetable vending work as Rs.6,500/-, for the accident occurred in the year 2008. Based on the same, the deceased was said to be working as an electrician, and earning a sum of Rs.9,000/- p.m. The monthly income fixed by the Tribunal at Rs.6,500/- appears to be reasonable. The Hon'ble Supreme Court has held in National Insurance Co. Ltd., v. Pranay Sethi and others reported in 2017 (2) TN MAC 609(SC), if the deceased happens to be below 40 years, if he is a self employed person 4/9
when calculating income, for future prospects 40% to be added. After adding future prospects, monthly income comes to Rs.9,100/-.
10. In Smt.Sarla Verma and Ors., v. Delhi Transport Corporation and Another reported in 2009 (2) TN MAC 1 (SC), the Hon'ble Supreme Court has held that for personal and living expenses, when the deceased is a bachelor, 1/3rd to be deducted, if the family is large and dependent on deceased or deceased having a widowed mother.
11. In this case, the deceased has left behind his widowed mother. Therefore, for the personal expenses deductions should not be 50% and only 1/3rd to be deducted. As per Ex.P6, namely copy of the Transfer Certificate, the age of the deceased is fixed as 31 years on the date of accident. Therefore, multiplier 16 is taken by the Tribunal is correct. Based on the above said observations, after deducting 1/3rd it would come to Rs.6067/- (Rs.9100/- - Rs.3033/-).
Calculation Notional Income = Rs.6,500/- 40% Future Prospects = Rs.2,600/- Total = Rs.6,500/- + Rs.2,600/- = Rs.9,100/- After 1/3 deduction = Rs.6,067/- 5/9
Loss of Income = Rs.6,067/- x 12 x 16 = Rs.11,64,864/- In respect of other heads, amount awarded by the Tribunal appears to be reasonable, therefore, no need to interfere with the same. Therefore, the Compensation awarded by the Tribunal is reworked as tabulated below: Sl.
No.
Description Amount awarded by Tribunal Amount awarded by this Court Award confirmed or enhanced or granted or reduced Loss of Income Rs.6,24,000/- Rs.11,64,864/- Enhanced Funeral Expenses Rs. 25,000/- Rs. 25,000/- Confirmed Damage to Clothes Rs. 5,000/- Rs. 5,000/- Confirmed Loss of Love and Affection Rs.1,00,000/- Rs. 1,00,000/- Confirmed Total Rs.7,54,000/- Rs.12,94,864/- Less 50% towards Contributory Negligence Rs.3,77,000/- Rs.6,47,432/-
12. Thus, the compensation awarded by the Tribunal is enhanced from Rs.3,77,000/- to Rs.6,47,432/- which would carry interest at the rate of 7.5% per annum.
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13. In the result, (i) The Civil Miscellaneous Appeal is partly allowed. No costs. (ii) The compensation awarded by the Tribunal is enhanced from Rs.3,77,000/- to Rs.6,47,432/-.
(iii) The 3rd respondent / Insurance Company is directed to deposit the enhanced compensation amount i.e., Rs.6,47,432/-(less the amount already deposited if any) together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit to the credit of M.C.O.P.No.73 of 2011 on the file of Motor Accident Claims Tribunal / Subordinate Judge, Attur, Salem District, within a period of eight weeks from the date of receipt of a copy of this Judgment. (iv) On such deposit being made, the appellants / claimants are at liberty to withdraw the same as per the Orders passed by the Tribunal after following due process of law. The claimants are directed to pay the Court fee for the enhanced compensation amount, if required. The Tribunal below shall disburse the enhanced amount upon production of the certified copy showing proof of payment of Court fee by the claimants. 06.04.2023 Index : Yes/No Speaking / Non-speaking order ssn 7/9
To:
1. The Motor Accident Claims Tribunal, Subordinate Judge, Attur, Salem District.
2. The Section Officer, V.R.Section, High Court of Madras, Chennai.
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R.KALAIMATHI, J., ssn Pre-delivery Judgment in 06.04.2023 9/9