Madras High Court
Vasanthi vs Manickam on 11 April, 2014
C.M.A.(MD)No.925 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 25.10.2021
Delivered On : 01.12.2021
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.M.A.(MD)No.925 of 2014
1.Vasanthi
2.Minor Praveen Kumar
(Represented by her mother and natural guardian,
the first appellant herein.) .. Appellants
Vs.
1.Manickam
2.Mayilsamy
3.National Insurance Company Limited,
Aathoor,
Rep. By its Branch Manager.
4.Palanichamy
5.Tamilselvi .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the award and decree dated 11.04.2014 passed in
M.C.O.P.N.523 of 2009 on the file of the Motor Accident Claims Tribunal, Special
District Judge, Thanjavur and enhance the compensation by allowing the present
Civil Miscellaneous Appeal.
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C.M.A.(MD)No.925 of 2014
For Appellants : Mr.M.Saravanan
For Respondents 4 and 5 : Mr.N.Sudhar Nagaraj
For 3rd Respondent : Mr.J.S.Murali
For 1st Respondent : No Appearance
For 2nd Respondent : Given Up
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the judgment and decree passed in M.C.O.P.No.523 of 2009 dated 11.04.2014 on the file of the Motor Accident Claims Tribunal, Special District Judge, Thanjavur.
2.The appellants herein are the claimants and the respondents herein are the respondents in the claim petition. The appellants herein have filed a claim petition in M.C.O.P.No.523 of 2009, claiming compensation for the death of one Vadivel, in an accident that took place on 13.02.2009. The Tribunal has awarded a sum of Rs.9,06,000/- (Rupees Nine Lakhs and Six Thousand only) as compensation. Against which, the appellant has filed the present appeal.
3.A brief substance of the claim petition in M.C.O.P.No.523 of 2009 is as follows:
On 13.02.2009, the deceased Vadivel and his colleague Balamurugan travelled in a car. The deceased drove the car bearing registration No.TN-55-B-6595 along with Balamurugan and his friend Subash Chandran and at about 01.20 p.m., a 2/8 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.925 of 2014 lorry bearing registration No.TDA-9585 which was driven by its driver in a rash and negligent manner dashed against the car and the deceased was crushed. The body could be removed from the car only with great difficulty. The deceased was a practicing advocate and the petitioners are his dependants and they claim a sum of Rs.1,46,00,000/- (Rupees One Crore and Forty Six Lakhs only) as compensation.
4.A brief substance of the counter filed by the third respondent herein is as follows:
The manner of the accident as narrated by the claim petition is wrong. The deceased was responsible for the accident. The third respondent is not liable to pay compensation. The accident occurred only due to the negligence of the first respondent driver. There is policy violation. The first respondent alone is liable to pay compensation. The age, avocation and income of the deceased are all denied. FIR against the first respondent is not a conclusive proof. The driver was not impleaded as a party to the petition. The quantum is excessive. The rate of interest claimed is excessive. Recovery right is to be given to the respondent.
5.A brief substance of the counter filed by the respondents 4 and 5 herein is as follows:
The respondents 4 and 5 are the dependants of the deceased. The fourth 3/8 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.925 of 2014 respondent is aged about 60 years and the fifth respondent is aged about 48 years. The fifth respondent is a heart patient.
6.The respondents 1 and 2 were set as exparte. On the side of the claimants, two witnesses were examined and seven documents were marked. On the side respondents in the claim petition, no witness was examined and no document was marked. After considering both the sides, the Tribunal has awarded a sum of Rs. 9,06,000/- (Rupees Nine Lakhs and Six Thousand only) as compensation to be paid by the third respondent therein. Against which, the appellant has preferred this appeal for enhancement of compensation.
7.On the side of the appellant, it is stated that the Tribunal failed to consider that the deceased was earning more than Rs.20,000/- (Rupees Twenty Thousand only) as a practicing advocate. He was having independent practice at Trichy and at Madurai. 50% is to be added towards future prospects. The Tribunal failed to consider that the deceased was owning a car. The award towards love and affection, loss of consortium, funeral expenses are to be enhanced. The Tribunal ought to have followed the dictum laid down by the Hon'ble Apex Court Judgment in the case of Rajesh and Others v. Rajbir Singh and others reported in 2013 (2) TNMAC 55 and the Sarala Varma case reported in 2012 (2) TNMAC (1). The 4/8 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.925 of 2014 Tribunal ought to have applied multiplier '18' instead of '17', as the age of the deceased was 29 years at the time of the accident. The deceased left behind four members and the Tribunal ought to have deducted 1/4th for his own expenses. P.W.2 gave evidence that the monthly income of the deceased was Rs.30,000/- (Rupees Thirty Thousand only) and he purchased a car out of his own income. The Tribunal ought to have added 40% towards future prospects. A Judgment of the Division Bench of this Court in the case of The Managing Director v. Tharakeshvari and others in C.M.A.(MD)Nos.399 and 705 of 2017 is cited, wherein the income of the advocate was fixed as Rs.30,000/- (Rupees Thirty Thousand only) per month.
8.On the side of the respondents 4 and 5, it is stated that the Tribunal is erred in fixing the income. The non payment of IT cannot be a ground to fix a low income. Ex.P7, issued by the Bar has to be considered. In support of this contention, a judgment of this Court in the case of Branch Manager, United India Insurance Co. Ltd., v. Jeyadevi and another reported in 2013 (1) TNMAC 610 is cited wherein minimum income of an advocate was fixed at Rs.25,000/- (Rupees Twenty Five Thousand only).
9.FIR was marked as Ex.P1. The copy of M.V. Report was marked Ex.P4. The driving licence was marked as Ex.P6. On the basis of evidence of P.W.1 and 5/8 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.925 of 2014 P.W.2 and on the basis of Ex.P1, it is decided that the lorry driver is responsible for the accident. Ex.P5 insurance policy was in force at the time of accident. The third respondent is the insurance company is liable to pay compensation.
10.It is stated that the deceased has purchased a car by paying a down payment of Rs.2,00,000/- (Rupees Two Lakhs only). The deceased worked as advocate in the year 2004 and the certificate issued by the Bar Association was marked as Ex.P7. Being a junior advocate having a practice of five years, the income of the deceased might have been Rs.12,000/- (Rupees Twelve Thousand only) per month. After deducting 1/4th towards his own expenses, the deceased might have contributed Rs.9,000/- (Rupees Nine Thousand only) to his family. After adding 40% towards future prospects, the income is calculated as Rs.12,600/- (Rupees Twelve Thousand and Six Hundred only) per month.
11.The age of the deceased at the time of the accident is 32 years and the date of birth of the deceased is 03.11.1977. The multiplier '16' is applicable. The loss of income is calculated as Rs.24,19,200/- (Rupees Twenty Four Lakhs Nineteen Thousand and Two Hundred only). As per Praney Sethi case, a sum of Rs.70,000/- (Rupees Seventy Thousand only) is awarded towards conventional charges. In total, a sum of Rs.24,89,200/- (Rupees Twenty Four Lakhs Eighty Nine Thousand and 6/8 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.925 of 2014 Two Hundred only) is awarded as compensation.
12.In the result, this Civil Miscellaneous Appeal is partly allowed. Out of the total award amount, the first appellant herein is entitled to a share of Rs. 12,89,200/- (Rupees Twelve Lakhs Eighty Nine Thousand and Two Hundred only), the second appellant herein is entitled to a share of Rs.7,00,000/- (Rupees Seven Lakhs only) and the respondents 4 and 5 herein are entitled to a share of Rs. 5,00,000/- (Rupees Five Lakhs only) each as compensation with interest at the rate of 7.5% from the date of the claim petition till the date of realization. The first appellant is entitled for the cost.
13.The third respondent herein is directed to deposit the above said amount if not deposited earlier, within a period of 8 weeks from the date of receipt of copy of this order. On such deposit, the major claimants are permitted to withdraw the award amount with proportionate interest after deducting any amount received by them earlier. The Tribunal is directed to deposit the share of the minor claimant in any one of the Nationalized Banks, in a Fixed Deposit scheme, till they attain majority. The first appellant, who is the mother and guardian of the minor claimant, is permitted to withdraw the accrued interest once in three months directly from the bank, only 7/8 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.925 of 2014 R. THARANI, J.
MRN for the welfare of the minor. The appellants are directed to pay extra Court fee, if any needed. No Costs.
01.12.2021
Index : Yes/No
Internet : Yes/No
MRN
To
1.The Motor Accident Claims Tribunal,
Special District Judge,
Thanjavur.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
C.M.A.(MD)No.925 of 2014
01.12.2021
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