Allowed

Rose v. Kalpana

Madras HC7 Sept 2023CMA/1907/2022

Case brief

AI extract

What is this about?

In this title CMA, the Court enhanced the compensation awarded by the Motor Accident Claims Tribunal from Rs.13.13 lakh to Rs.25.92 lakh for the death of a construction worker. The Court fixed a higher notional monthly income based on the deceased's membership card and adjusted specific heads of compensation, confirming the total enhancement.

What did the court decide?

Compensation enhanced from Rs.13,13,792 to Rs.25,92,500 with interest at 7.5% per annum; directions for deposit and distribution of shares.

Rose Vs Kalpana — Motor Accident Claims | Madras HC (2023)

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C.M.A.No.1907 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 07.09.2023

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CORAM :

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THE HONOURABLE MR. JUSTICE SUNDER MOHAN

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C.M.A.No.1907 of 2022

1.Rose

2.Minor Sivakumar

3.Minor Sivaranjani

4.Thoppalan

5.Thailammal ... Appellants

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(2nd and 3 rd minor appellants are represented by their mother Rose as natural guardian and next friend)

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Versus

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1.Kalpana

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2.Divisional Manager, The New India Assurance Company Limited, CSI Building, 2 nd Floor, No.1, Officers Lane, Near Orris College, Vellore. ... Respondents

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PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 18.09.2018 made in M.A.C.T.O.P.No.1240 of 2017, on the file of the Motor Accident Claims Tribunal, Special Sub-Court, Thiruvannamalai.

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https://www.mhc.tn.gov.in/judis

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C.M.A.No.1907 of 2022

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For Appellants : Ms.Sunithi Abirami for Mr.M.Malar For R2 : Ms.C.Sangamithirai

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JUDGMENT

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This appeal has been filed by the claimants seeking enhancement

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of compensation awarded by the Tribunal in M.A.C.T.O.P.No.1240 of 2017, dated 18.09.2018.

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2.The claim petition was filed stating that on 18.05.2018, at about 02.00 a.m., when the deceased was travelling in a TVS XL moped from Pugaipatti Village to Kattusellur Village, the driver of the offending vehicle came in the same direction, dashed against the deceased from behind; that as a result, the deceased sustained fatal injuries and hence, the appellants are entitled to compensation of Rs.20,00,000/-.

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st 3.The 1 respondent/owner of the offending vehicle remained ex-

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parte before the Tribunal.

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4.The 2 nd respondent/Insurance Company filed a counter denying

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all the averments made in the claim petition and stated that the deceased

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C.M.A.No.1907 of 2022

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without noticing the offending vehicle viz., the car suddenly crossed the road and invited the accident; that the accident took place only due to the

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negligence of the deceased; that in any case, the compensation claimed was excessive and prayed for dismissal of the claim petition.

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5.Before the Tribunal, the appellants examined two witnesses and

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marked Ex.P.1 to Ex.P.6 on their side. The 2 nd respondent has not examined any witness or marked any document.

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6.The Tribunal after considering the oral and documentary evidence directed the 2^nd respondent to pay a sum of Rs.13,13,792/- as compensation to the appellants.

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7.The learned counsel for the appellants submitted that though the appellants filed Ex.P6-membership card issued to the deceased by the Superintendent, Tamil Nadu Construction Labourer's Welfare Board, which suggests that the deceased was a construction worker, the Tribunal had fixed a meagre notional income of Rs.6,500/- per month and prayed for enhancement of compensation.

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C.M.A.No.1907 of 2022

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1 st

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8.The learned counsel for the appellant further submitted that the

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1^st respondent remained ex-parte before the Tribunal and he prayed to

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dispense with notice to the 1^st respondent and he has also made an endorsement to that effect. Hence, notice to the 1^st respondent is dispensed with.

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9.The learned counsel for the 2^nd respondent further submitted that the notional income fixed by the Tribunal in the absence of any evidence is just and reasonable and no interference is called for. Further, the award of compensation under the heads loss of love and affection to the children and parents are excessive and prayed for dismissal of the appeal.

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10.The only question involved in the instant appeal is whether the compensation awarded by the Tribunal is just and reasonable?

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11.On perusal of the records, it is seen that the appellants had established the avocation of the deceased by marking Ex.P6-membership card issued by the Superintendent, Tamil Nadu Construction Labourer's Welfare Board. In Ex.P6, the avocation of the deceased is shown as

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mason. However, the appellants had not proved the income of the https://www.mhc.tn.gov.in/judis 4/8

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C.M.A.No.1907 of 2022

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deceased. The deceased was aged 42 years. Considering the age of the deceased, the fact that the deceased was working as mason and year of accident, this Court is of the view that it would be just and reasonable to fix a sum of Rs.15,000/- per month as notional income of the deceased. The appellants are entitled to 25% enhancement towards future prospects. After deducting 1/4^th towards personal expenses, the compensation under the head loss of income has to be as follows:

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Rs.18750/- (Rs.15,000 + 25%) X14 X 12 X 3/4 = Rs.23,62,500/-

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Further, the award under the head loss of love and affection for the appellants 2 and 3 is reduced to Rs.80,000/- at the rate of Rs.40,000/each. Similarly, the award under the head loss of love and affection for the appellants 4 and 5 is enhanced to Rs.80,000/- at the rate of Rs.40,000/- each. The amount awarded by the Tribunal under other heads is just and reasonable and hence, the same are confirmed. Th us, the compensation awarded by the Tribunal is modified as follows:-

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C.M.A.No.1907 of 2022

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S.
No

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S. No	Description	Amount awarded by Tribunal (Rs)	Amount awarded by this Court (Rs)	Award confirmed or enhanced or granted
1.	Loss of Income	10,23,792	23,62,500	Enhanced
2.	Loss of consortium to the 1^stappellant	40,000	40,000	Confirmed
3.	Loss of Estate	15,000	15,000	Confirmed
4.	Funeral Expenses	15,000	15,000	Confirmed
5.	Loss of love and affection for the appellants 2 and 3	1,50,000	80,000	Reduced
6.	Loss of love and affection for the appellants 4 and 5	70,000	80,000	Enhanced
	Total	13,13,792	25,92,500	Enhanced by Rs.12,78,708/-

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12.With the above modification, this Civil Miscellaneous Appeal

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is partly allowed and the compensation awarded by the Tribunal at Rs.13,13,792/- is hereby enhanced to Rs.25,92,500/-, 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 2^nd 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 four (4) weeks from the date of a receipt of copy of this

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C.M.A.No.1907 of 2022

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Judgment. On such deposit, the appellants 1, 4 and 5 are permitted to withdraw their respective share from the award amount now determined by this Court, as per the apportionment fixed by the Tribunal, along with proportionate interest and costs, less the amount already withdrawn, if any. The share of the minor appellants 2 and 3 are directed to be deposited in any one of the nationalised bank in a fixed deposit till the minors attain majority. The 1^st appellant - mother of the minor appellants 2 and 3 are directed to withdraw the accrued interest once in three months. The appellants are directed to pay the necessary Court fee, if any on the enhanced award amount. No costs.

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07.09.2023

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rst

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Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No To:

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1.The Motor Vehicle Accident Tribunal, Special Sub-Court, Thiruvannamalai.

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

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C.M.A.No.1907 of 2022

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SUNDER MOHAN, J.

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rst

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C.M.A.No.1907 of 2022

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07.09.2023

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Rose v. Kalpana

Case brief

What is this about?

What did the court decide?

Rose v. Kalpana

Case brief

What is this about?

What did the court decide?

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