(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, praying to allow this appeal and to enhance the amount awarded in M.C.O.P.No.124 of 2011 dated 24.02.2014 on the file of Motor Accident Claims Tribunal, (II Additional District Court) Poonamallee.)

M. Dhandapani, J.

1. The claimants are before this Court seeking an enhancement of the award passed by the Motor Accident Claims Tribunal, II Additional District Court, Poonamallee in M.C.O.P.No.124 of 2011, dated 24.02.2014.

2. The appellants/claimants are the wife, daughters and mother of the deceased A.Pushparaj. On 18.12.2010 at about 21.30 hours, when the deceased was riding in his motorcycle bearing Regn.No.TN-21-AD-0830 on Sriperumbudur-Thiruvallur high road near Sriperumbudur erikarai, the 1st respondent driven his car bearing Regn.No.TN-31-M-8442, which was insured with the 2nd respondent, in a rash and negligent manner, and dashed against the motorcycle of the deceased. Due to the accident, the deceased sustained fatal injuries and he was taken to Sri Ramachandra Hospital, Porur for treatment. Inspite of the treatment given, he succumbed to the injuries leading to the registration of Crime No.769/2010 dated 19.12.2010 u/s 279, 304(A) IPC against the driver of the offending vehicle. Therefore, the claimants filed a claim petition claiming compensation of Rs.50,00,000/- before the Tribunal in M.C.O.P.No.124 of 2011.

3. Before the Tribunal, the claimants examined 2 witnesses viz., P.W.1 and P.W.2 and marked 8 documents viz., Ex.P.1 to Ex.P.8. No witnesses were examined nor any documents were marked on the side of the respondents. After adjudication, the Tribunal partly allowed the petition and awarded a sum of Rs.38,84,246/- as compensation to the claimants. However, by fixing 20% contributory negligence on the part of the deceased, the Tribunal awarded a sum of Rs.31,07,396/- as compensation to the claimants. Challenging the same, the present appeal has been filed by the appellants/claimants.

4. Learned counsel appearing for the appellants would submit that without any evidence, the Tribunal has fixed 20% contributory negligence on the deceased, which is impermissible and the same requires interference by this Court. He would further submit that the Tribunal has not added future prospects, which requires to be re-considered by this Court. That apart, the amount awarded under the head of loss of love and affection was also on the lower side and was not in consonance with the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay sethi and others reported in 2017 (16) Supreme Court Cases 680. Further, he would submit that the compensation awarded by the Tribunal under the other heads is also on the lower side, which also requires to be re-considered by this Court. Accordingly, he prays for appropriate enhancement in favour of the appellants.

5. Per contra, the learned counsel appearing for the 2nd respondent/Insurance Company would submit that, evidence of P.W.1 and the document Ex.P.2 reveals the presence of alcohol in the stomach of the deceased, the Tribunal has rightly fixed 20% contributory negligence on the deceased, which does not require any interference. Further, he would submit that that by considering all the oral and documentary evidence, the Tribunal has awarded just and reasonable compensation under various heads, which also does not require any enhancement. Accordingly, he prays for dismissal of the appeal.

6. Heard the learned counsel appearing for the appellants and the learned counsel appearing on behalf of the 2nd respondent and perused the materials available on record.

7. The happening of the accident and the travelling of the deceased in his vehicle and the death of the deceased is not in dispute. Therefore, this Court is not entering into the said aspect. The main grievance of the appellants is regarding the fixation of 20% contributory negligence on the part of the deceased. It is claimed by the appellants that there is no proper evidence to prove the fact that the deceased was under the influence of alcohol at the time of accident. The 1st appellant/P.W.1 is not an eyewitness to the accident, who was cross-examined to the effect that the deceased was smelling alcohol. Further, Ex.P.2, the accident register, states that known alcoholic in stomach BP 130/80 PR 90/mit. However, the said document does not mean that the deceased has consumed alcohol at the time of accident. Further, the presence of alcohol in the stomach does not conclusively establish intoxication, as it may be attributed to the medicinal consumption of cough. Therefore, the said document cannot be taken as a conclusive proof to hold that the deceased has consumed alcohol at the time of accident. Hence, the argument of the learned counsel appearing for the 2nd respondent in this regard is mis-conceived and the same is rejected. Accordingly, the order passed by the Tribunal fixing 20% contributory negligence fixed on the deceased is set aside and hence, the 2nd respondent/insurance company is liable to pay the entire compensation to the appellants/claimants.

8. Now, coming to the question of quantum of compensation awarded by the Tribunal in favour of the claimants. To compute the income under the head loss of income, the claimants have filed Ex.P.5, the salary certificate of the deceased issued by the Assistant Educational Officer mentioning the gross salary of the deceased as Rs.29,406/-. Hence, this Court is of view that the income fixed by the Tribunal is just and reasonable and the same does not require any interference. Since the Tribunal has not added future prospects and had erroneously deducted 1/5th towards the personal expenses, this Court is inclined to add future prospects and deduct 1/4th towards personal expenses from the notional income. Hence, by accepting the income fixed by the Tribunal at Rs.29,406/- and adding future prospects at 30%, as has been held by the Constitution Bench in the case of National Insurance Company Limited Vs. Pranay sethi and others reported in 2017 (16) Supreme Court Cases 680, the total income per month is quantified at Rs.38,228/-. Deducting 1/4th towards the personal expenses of the deceased, the income of the deceased is arrived at Rs.28,671/- per month and the deceased being aged about 40 years, as evidenced from the records, adopting the multiplier of 15 as fixed by the Apex Court in the case of Sarla Verma and Ors. v. DTC & Ors. reported in (2009) 6 SCC 121, the loss of income to the family is arrived at Rs.28,671/- * 12 * 15 = Rs.51,60,780/-. After deducting 10% towards income tax, the loss of revenue is arrived at Rs.46,77,702/-, which is worked out as follows :-

                  

9. Further, the Tribunal had awarded a sum of Rs.25,000/- towards loss of consortium to the 1st appellant; Rs.10,000/- towards loss of love and affection to appellants 2 and 3; Rs.2,5008/- towards loss of love and affection to 4th appellant; Rs.5,000/- towards funeral expenses; Rs.5,000/- towards transport expenses and Rs.25,696/- towards medically expenses. This Court finds that the compensation awarded under the heads loss of consortium to the 1st appellant, transport expenses and medical expenses are just and reasonable and the same does not require any interference. However, insofar as the compensation awarded towards loss of love and affection to appellants 2 and 3, and loss of love and affection to 4th appellant are concerned, this Court feels that the appellants 2 to 4 are entitled to a sum of Rs.15,000/- each. Further, the compensation awarded under the head funeral expenses is on the lower side, and the same is enhanced to a sum of Rs.10,000/-.

10. In the above circumstances, the compensation awarded by the Tribunal is modified as under :-

                  

11. When the claim petition was filed in the year 2011, the appellants 2 and 3 were aged about 12 and 8 years. Now, they should be aged about 27 and 23 years and are therefore, major. Though no application has been taken out to declare them as major, this Court suomotu takes into account the age given in the claim petition and also taking into account the efflux of time, declares the appellants 2 and 3 as major and discharges their mother A.G.Sagaya Prabha from the guardianship. The Registry shall carry out the necessary amendments.

12. Accordingly, the Civil Miscellaneous Appeal is allowed and the impugned award is modified, enhancing the compensation amount from Rs.31,07,396/- to Rs.47,88,398/-. The appellant/insurance company is directed to deposit the modified compensation amount to the credit of M.C.O.P.No.124 of 2011 along with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit and costs as awarded by the Tribunal, less, the amount, if any already deposited, within a period of four (4) weeks from the date of receipt of a copy of this judgment. The above modified compensation amount shall be apportioned among the appellants/claimants as per the apportionment of the Tribunal. On such deposit being made, the Tribunal is directed to transfer the respective share of the appellants/claimants, directly to their bank accounts, through RTGS within a period of two (2) weeks thereafter upon production of proof with regard to payment of Court fee on the enhanced compensation. The appellants/claimants are directed to pay necessary additional Court fee on the enhanced compensation amount. There shall be no order as to costs in the present appeal.