(Prayer: Civil Miscellaneous Petition filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the decree and judgment passed in M.C.O.P.No.437 of 2019 on 26.10.2021 on the file of the Learned Motor Accident Claims Tribunal / Additional District Court at Namakkal and be pleased to dismiss the above claim and allow the CMA.)

K. Kumaresh Babu. J.

1) This Civil Miscellaneous Appeal has been filed by the appellant– Insurance Company challenging the award dated 26.10.2021 passed by the Motor Accident Claims Tribunal, whereby a total compensation of Rs.37,44,403/- was awarded in favour of the dependants of the deceased.

2) The brief facts leading to the filing of this appeal are that the deceased was employed as a Dyeing Master at Sivasakthi Dyeing Mill and was stated to be earning a monthly income of Rs.35,000/-. On 24.02.2019, while the deceased was riding a two-wheeler bearing Registration No. TN 28 AM 4069, he was hit by another two-wheeler bearing Registration No. TN 88 D 7508. The deceased sustained grievous injuries in the accident and, despite treatment, succumbed to the injuries on 04.03.2019, after eight days.

3) An FIR came to be registered in Crime No.80 of 2019 on the file of Mohanur Police Station. The wife and minor children of the deceased filed a claim petition before the Tribunal seeking compensation of Rs.35,00,000/-. Upon consideration of the oral and documentary evidence, the Tribunal awarded a total compensation of Rs.37,44,403/- under various heads, including loss of income, medical expenses, loss of consortium, loss of love and affection, and funeral expenses. Aggrieved by the said award, the Insurance Company has preferred the present appeal.

4) Heard Mr. Dhakshnamoorthy, learned counsel appearing for the appellant–Insurance Company, and Mr. C. Thangaraju, learned counsel appearing for respondents 1 to 3.

5) The learned counsel for the appellant contended that the Tribunal erred in relying upon the salary certificate marked as Ex.P18, which was issued on the letterhead of the company and was not supported by statutory documents such as Form 16. It was further submitted that the employer of the deceased was not examined to substantiate the alleged income and that the fixation of monthly income at Rs.25,000/- was excessive. It was also contended that the Tribunal erred in granting 30% towards future prospects, whereas only 25% ought to have been granted. The learned counsel further argued that the deceased had not produced a valid driving licence and was not wearing a helmet at the time of the accident, thereby contributing to the head injury sustained by him. According to the appellant, the Tribunal failed to consider contributory negligence on the part of the deceased and passed an excessive award, which is liable to be set aside.

6) Per contra, the learned counsel for the claimants submitted that the Tribunal had properly appreciated the evidence available on record and arrived at a just and reasonable compensation. It was contended that no interference is warranted by this Court and that the appeal deserves to be dismissed.

7) This Court has carefully considered the submissions made by the learned counsels on either side and perused the materials available on record. Upon such consideration, this Court finds it necessary to re-evaluate the compensation awarded by the Tribunal.

8) The Tribunal fixed the monthly income of the deceased at Rs.25,000/- based on Ex.P18 salary slip. Though a co-employee was examined to establish the employment of the deceased, the employer of the deceased was not examined, and no documentary evidence such as Form 16 was produced to substantiate the claimed income. In the absence of primary evidence regarding income, this Court is of the view that the fixation of income by the Tribunal requires modification. Accordingly, the notional monthly income of the deceased is fixed at Rs.17,000/-.

9) With regard to future prospects, the Constitution Bench of the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680, has held that where the deceased was aged 40 years and was on a fixed salary, an addition of 40% towards future prospects is warranted. Therefore, the future prospects granted by the Tribunal is enhanced from 30% to 40%.

10) Accordingly, the monthly income of the deceased is fixed at Rs.17,000/-. With an addition of 40% towards future prospects, the monthly income comes to Rs.23,800/-. The annual income thus works out to Rs.2,85,600/-. After deducting one-third towards personal and living expenses, the annual contribution to the family, thus works out to Rs.1,90,404/-.

11) Considering the age of the deceased as 40 years at the time of death, the appropriate multiplier applicable is 14. Applying the said multiplier, the loss of dependency is computed at Rs.1,90,404/- × 14 = Rs.26,65,656/-. Further, as rightly pointed out by the tribunal the deceased failed to wear a helmet which resulted in the head injury and contributed to the occurrence of the accident. As a result of it, the tribunal deducted 10% as contributory negligence and the same is confirmed by this court and deducts the same from loss of dependency is computed at Rs.26,65,656- Rs.26,657=Rs.26,38,999/-.

12) The Tribunal awarded a sum of Rs.40,000/- towards spousal consortium, which is in accordance with the principles laid down by the Hon’ble Supreme Court and therefore stands confirmed. However, the Tribunal awarded only Rs.15,000/- towards loss of love and affection. In view of the law laid down in National Insurance Co. Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680, the children of the deceased are entitled to parental consortium. Accordingly, this Court awards Rs.40,000/- each to the two children towards loss of parental consortium, totaling Rs.80,000/-.

13) The medical expenses amounting to Rs.3,98,403/- are supported by documentary evidence and are confirmed. Further, this Court awards a sum of Rs.15,000/- towards loss of estate. The sum of Rs.15,000/- awarded towards funeral expenses by the Tribunal is also confirmed. Thus, the total compensation payable to the claimants is re-determined at Rs.31,88,000/- (rounded off Rs.31,87,402/-). The award of the Tribunal is accordingly modified, reducing the compensation from Rs.37,44,403/- to Rs.31,88,000/-. The rate of interest and apportionment among the claimants as ordered by the Tribunal shall remain unchanged. For better appreciation, the modified compensation is tabulated hereunder.



In the result, the Civil Miscellaneous Appeal is partly allowed to the extent of modification of the compensation. The respondents 1 to 3 are awarded a compensation of Rs.31,88,000/-. The respondents 1 to 3 are entitled for the distribution of the aforesaid award in the same proportion as granted by the Tribunal. They are also entitled to the interest @ 7.5% per annum from the date of the Original Petition. The Appellant shall deposit the aforesaid amount less any amount that has been deposited earlier together with interest within a period of 30 days from the date of receipt of a copy of this order. Connected miscellaneous petitions are closed. There shall be no order as to costs.