(Prayer: This Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, to call for the records pertaining to the Judgment and Decree, dated 26.03.2015 made in M.C.O.P.No.816 of 2012 on the file of the Motor Accident Claims Tribunal-cum-District and Sessions Court cum Communal Classes Court at Madurai and praying to set aside the Decree and Judgment of the disallowed portion of compensation by allowing this Civil Miscellaneous Appeal.)
1. The present appeal is filed by the claimants against the Award, dated 26.03.2015, made in M.C.O.P.No.816 of 2012, passed by the Motor Accident Claims Tribunal-cum-District and Sessions Court-cum- Communal Classes Court at Madurai for enhancement of compensation.
2. The appellants are the claimants in MCOP No.816 of 2012, on the file of the Motor Accident Claims Tribunal-cum-District and Sessions Court-cum-Communal Clashes Court at Madurai. The first respondent is the owner TVS Sports TN 58 Z 8554 involved in the accident, which was insured with the second respondent. The appellants filed a claim petition, claiming a sum of Rs.7,00,000/- for the death of one Ponnuthai, wife of the first appellant and mother of the appellants 2 to 6, who died in the accident that took place on 31.03.2011. The Tribunal after considering the pleadings and evidence let in, awarded a sum of Rs.4,40,000/- as compensation. Not being satisfied with the compensation awarded by the Tribunal, the appellants have filed present appeal for enhancement of compensation.
3. Facts of the case:-
On 31.03.2011, at 9.15 a.m., Ponnuthai and her son were walking in left side of the Valayankulam Road, for agricultural work. At that time, a TVS Sports T.N.58 Z 8554 belonging to the first respondent was driven from north to south, in a rash and negligent manner, at a high speed and dashed against the back side of the Ponnuthai. Due to the said accident, the said Ponnuthai sustained grievous injuries and she was admitted in Sri Krishna Private Hospital for initial treatment and thereafter, she was admitted in Vadamalayan Hospital for better treatment and after that she was admitted in Madurai Rajaji Government Hospital for better treatment. She died inspite of medical treatment. The appellants as legal heirs and dependants of deceased claimed compensation.
4. The second respondent / Insurance Company has filed a counter statement denying the various averments made by the appellants. The second respondent stated that the accident did not take place due to the rash and negligent driving of the rider of the two wheeler belonging to the first respondent. The driver of the first respondent did not have valid driving licence. The first respondent violated the policy conditions and therefore, the second respondent Insurance Company prayed for dismissal of the claim petition.
5. Before the claims Tribunal, on the side of the appellants / claimants P.W.1 and P.W.2 have been examined and Exs.A1 to A11 have been marked. On the side of the 2nd respondent Insurance Company R.W.1 and R.W.2 have been examined and Exs.B1 to B5 have been marked. Before the Tribunal, the first respondent / owner of the vehicle remained ex-parte.
6. The Tribunal after considering the pleadings and the evidence let in, came to a conclusion that the accident occurred only due to the rash and negligent driving of the rider of the two wheeler, belonging to the first respondent. The Tribunal, taking into consideration the income, age and the nature of work done by the deceased, awarded a sum of Rs.4,,40,000/- as compensation. Not being satisfied with the said award, the appellants / claimants have filed the present appeal, for enhancement of compensation.
7. Mr.K.Kumaravel, the learned counsel for the appellants / claimants would submit that, since the claimants are more than three, the claims Tribunal ought to have deducted 1/4th from the income of the deceased for her personal expenses. The claims Tribunal has deducted 1/3rd which is contrary to the principles laid down by the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation, reported in 2009(2) TN MAC 1 (SC). Adding further, the learned counsel would submit that a Hon'ble Division Bench of this Court in M.Shenbagam Vs. Vinothkumar reported in (2013(2) TANMAC 450) has fixed the income of a person as Rs.200/- per day, who was agriculture coolie and therefore, the Tribunal has erred in fixing the monthly income of the deceased as Rs.3000/- instead Rs.6000/- and prayed for enhancement of compensation.
8. Mr.J.S.Murali, the learned counsel appearing for the 2nd respondent / Insurance Company would submit that the amount awarded by the claims Tribunal is on the higher side in all heads, and prayed for dismissal of the claim petition.
9. The appellants have pleaded and let in evidence that deceased was an agricultural coolie. Tribunal has fixed the nominal income of the deceased at Rs.3,500/- p.m., as claimants failed to produce any document with regard to income of the deceased. Considering the Judgment of this Court reported in (2013(2) TANMAC 450) (cited supra), the monthly income of the deceased is enhanced to Rs.4,500/- from Rs.3,000/- fixed by Tribunal. Further, as rightly pointed out by the learned counsel appearing for the appellants / claimants, the Tribunal has deducted 1/3 instead of 1/4. The Hon'ble Apex Court in the judgment of Sarla Verma v. Delhi Transport Corporation, reported in 2009(2) TN MAC 1 (SC), has held that when the claimants are 4 in number, the deduction must be 1/4 from the total income towards personal expenses of deceased. Applying the ratio laid down in the aforesaid judgment, the appellants are entitled to compensation of Rs. (4,500 x 12 x 7 x 3/4) Rs.2,83,500/- instead of Rs.( 3000 x 12 x 7 x 2/3) Rs.1,68,000/-. This Court is of the view that the amount awarded under the head, 'Consortium', is low and the same has to be enhanced to Rs.50,000/- from Rs.20,000/-. Tribunal has awarded Rs.30,000/- each to appellants towards loss of love and affection. The first appellant is not entitled to any compensation for loss of love and affection as he is awarded compensation for loss of consortium. The award of Tribunal for loss of love and affection for appellants 2 to 6 is very low. It is enhanced to Rs.50,000/- each of the appellants 2 to 6. The award of Tribunal under this head is modified as Rs.50,000/- each to appellants 2 to 6. The amount awarded under other heads of the Tribunal is confirmed.
10. The award of the Tribunal is modified as follows:
| S.No. | Description | Amount awarded by Tribunal | Amount awarded by this Court | Award confirmed or modified or enhanced or granted |
| 1. | Loss of consortium to first appellant | Rs.20,000 | Rs.50,000 | enhanced |
| 2. | Loss of love and affection to the appellants 2 to 6 | Rs.30,000 x 6=1,80,000 | Amount granted to the 1st appellant is set aside Rs.2,50,000/- is granted to appellants 2 to 6 | Modified |
| 3. | Loss of income | Rs.1,68,000 | Rs.2,83,500 | enhanced |
| 4. | Loss of funeral expenses | Rs.25,000 | Rs.25,000 | confirmed |
| 5. | Medical expenses | Rs.42,000 | Rs.42,000 | confirmed |
| 6. | Transportation | Rs.5,000 | Rs.5,000 | Confirmed |
| Total | Rs.4,40,000 | Rs.6,55,500 | Enhanced by Rs.2,15,500 |