Shoba v. Belaventhiran

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19.09.2017

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU C.M.A(MD)Nos.775 of 2017 and 369 of 2016 and C.M.P.(MD)No.5295 of 2016 C.M.A(MD)Nos.775 of 2017 1.Shoba 2.MInor.Ashwanth 3.Minor.Sahana 4.Irudhayadasan 5.Gloriyal (Minor Petitioners through their mother and next guardian 1st appellant herein) ... Appellants/Petitioners Vs.

1.Belaventhiran 2.National Insurance Company Limited, Through its Divisional Manager, Anguvilas Building, North Masi Street, Nagercoil-629 001. ... Respondents/Respondents PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgement and Decree made in M.C.O.P.No.334 of 2013 on the file of the Motor Accident Claims Tribunal, (1st Additional District Court) Tirunelveli, dated 26.10.2015.

For Appellants : Mr.T.Selvakumaran For 1st Respondent : Mr.G.Aravinthan For 2nd Respondent : Mr.J.S.Murali C.M.A(MD)Nos.369 of 2016 National Insurance Company Limited, Through its Divisional Manager, Anguvilas Building, North Masi Street, Nagercoil-629 001. ... Appellant/2nd Respondent

Vs.

1.Shoba 2.Minor.Ashwanth 3.Minor.Sahana 4.Irudhayadasan 5.Gloriyal (Minor respondents 2 & 3 are represented through their mother and next guardian, the 1st respondent herein) ... Respondents 1 to 5/Petitioners 6.Belaventhiran ... 6th Respondent/1st Respondent (6th Respondent exparte in Tribunal) PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgement and Decree in M.C.O.P.No.334 of 2013, dated 26.10.2015 on the file of the Motor Accident Claims Tribunal, I Additional District Court, Tirunelveli. For Appellants : Mr.J.S.Murali For Respondents1 to 3 : No appearance For Respondents 4 & 5 : Mr.T.Selvakumaran For 6th Respondent : Dispensed with COMMON JUDGMENT Since both the Civil Miscellaneous Appeals are arising out of the same accident, both the Civil Miscellaneous Appeals are disposed of by this Common judgment.

2. Both the Civil Miscellaneous Appeals have been filed against the Judgement and Decree in M.C.O.P.No.334 of 2013, dated 26.10.2015 on the file of the Motor Accident Claims Tribunal, I Additional District Court, Tirunelveli.

3. It is a case of fatal in which the accident took place on 17.12.2012 at about 07.00 p.m . When the deceased was riding in a two-wheeler bearing Registration No.72 E 0126 on the left side of the road towards North, a two-wheeler bearing Registration No. T.N.74 AC.5769, which was insured with the respondent-Insurance Company, came in a rash and negligent manner and dashed against the deceased and the deceased was sustained fatal injuries and he was admitted in Asaripallam Hospital. At the time of accident, the deceased was aged about 26 years and he was earning a sum of Rs.25,000/- p.m. as photographer. Hence, the legal representatives of the deceased filed an application in M.C.O.P.No.334 of 2013, dated 26.10.2015 on the file of the Motor Accident Claims Tribunal, I Additional District Court, Tirunelveli, seeking compensation of Rs.25,00,000/-.

4.Before the Tribunal, on the side of the claimants, two witnesses viz., P.W.1 and P.W.2 were examined and eleven documents viz., Exs.P.1 to P.11 were marked and neither any witness was examined nor any document was marked on the side of the respondents. 5.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the counsel for the appellant and claimants and also appreciating the evidence on record, held that the accident occurred only, due to the rash and negligent driving of the driver of the offending vehicle and directed the respondent Insurance Company to pay a sum of Rs.19,42,000/- to the claimants.

6. Against which, the claimants filed the appeal in C.M.A.(MD) No.775 of 2017 for enhancement of compensation and the Insurance Company filed the appeal in C.M.A.(MD)No.369 of 2017 disputing the quantum.

7. The learned counsel appearing for the claimants would submit that the Tribunal had granted very meagre amount under various heads and hence, he prays for enhancement of compensation.

8. The learned Counsel for the Insurance Company would submit that the Tribunal had taken a larger sum as monthly income of the deceased without any proof and the amounts awarded under other heads are also very high. Hence, he prays for interference of this Court to the award passed by the Tribunal.

9. Heard the learned counsel appearing on both sides and perused the materials available on record.

10. A perusal of the award passed by the Tribunal, it is seen that the notional income taken by the Tribunal is high. The Honourable Apex Court in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. reported in 2014 (1) TNMAC 459 (SC), determined the monthly income at Rs.6,500/- for a vegetable vendor, even in the absence of any definite material about the income. Hence, this Court is inclined to take the monthly income as Rs.6,500/- per month and 50% of the income has been taken for future prospects and deducted 1/4 towards personal expenses of the deceased and by applying the multiplier as per the decision in Sarla Verma v. Delhi Transport Corporation reported in 2009 (2) TN MAC 1 (SC), the loss of income would be arrived at as follows: (Rs.6500/-+3250/-)x3/4x12x17 = Rs.

14,91,70/- Considering the age of the minor children, this Court is of the view that the amount awarded by the Tribunal towards loss of love and affection is very meagre. Hence, this Court is inclined to enhance the same to a sum of Rs.1,50,000/- and this Court is also inclined to grant a sum of Rs.1,00,000/- for loss of love and affection to the parents of the deceased.

for loss of guidance is hereby set aside. The amount awarded by the Tribunal under others heads are hereby confirmed.

11. In view of the above, this Court modifies the award of the Tribunal by enhancing the compensation as under: S.No Description Amount awarded by the Tribunal Rs.

Award confirmed or enhanced or granted For loss of income 16,32,000 14,91,750 reduced For loss of consortium 1,00,000 1,00,000 Confirmed Amount awarded by this Court Rs.

3.

For love and affection to children 1,00,000 1,50,000 enhanced 4.

For loss of love and affection to parents --- 1,00,000 granted For loss of guidance 75,000 -- Set aside 5.

For transport expenses 10,000 10,000 confirmed 6.

For funeral expenses 25,000 25,000 confirmed Total Rs.19,42,000 Rs.18,76,750 By reducing a sum of Rs.65,250

12. In the result, the Civil Miscellaneous Appeal in C.M.A. (MD)No.369 of 2016 filed by the Insurance Company is partly allowed by reducing the compensation from Rs.19,42,000/- to Rs.18,76,750/-, dated 26.10.2015, passed in M.C.O.P.No.334 of 2013, by the Motor Accident Claims Tribunal, (1st Additional District Court) Tirunelveli and the Civil Miscellaneous Appeal in C.M.A.(MD) No.775 of 2017 filed by the claimants is modified and ordered accordingly to the extent indicated above.

The Insurance Company is directed to deposit the entire award amount with accrued interests and costs, within a period of eight weeks from the date of receipt of a copy of this order, if not already deposited and on such deposit being made, the major claimants are permitted to withdraw their share amount along with proportionate interest and costs as apportioned by the Tribunal, without filing any formal petition before the Tribunal.

months for the welfare of the minors. No Costs. Consequently, the connected Miscellaneous Petition is closed.

Sd/- Assistant Registrar (CS-I) /True Copy/ Sub Assistant Registrar To

1. The 1st Additional District Judge, Motor Accident Claims Tribunal, Tirunelveli.

2. The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

+ 2 CC TO Mr.J.S.MURALI, ADVOCATE IN SR No. 80165, 80166 + 1 CC TO Mr.G.ARAVINDHAN, ADVOCATE IN SR No. 80185 + 1 CC TO Mr.T.SELVAKUMARAN, ADVOCATE IN SR No. 80110 SSL TE/SKN/SAR-IV : 26/10/2017 : 5P/7C C.M.A(MD)Nos.775 of 2017 & 369/2016 & C.M.P.(MD)No.5295 of 2016 19.09.2017