CMA No. 845 / 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.07.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No. 845 of 2022

1.A.Balaji

2.A.Rukmani

... Appellants

Versus

1.Akram

2.N.Krishnan

3.The Shriram General Insurance Co.Ltd.,

10002 – E-8 RIICO, Industrial Area,

Sitapura, Jaipur, Rajasthan - 302022. ... Respondents

PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the

Motor Vehicles Act, 59 of 1988 seeking to enhance the compensation

amount made in Judgment and decree dated 08.10.2021 made in

M.C.O.P. No.333 of 2014 on the file of the Motor Accident Claims

Tribunal and Special District Court for Motor Accident Claims Cases,

Krishnagiri by allowing this Civil Miscellaneous Appeal.

For Appellant : Mr. S.P. Yuvaraj.

For Respondents : No appearance for R1 & R2.

Mr. K. Poomalai for R3.

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CMA No. 845 / 2022

J U D G M E N T

The appeal has been filed by the petitioners challenging the

quantum of compensation awarded by the Tribunal in M.C.O.P. No. 333

of 2014 dated 08.10.2021.

2.The appellant had filed a claim petition stating that on the date of

accident i.e., on 17.03.2011 at about 04.30 p.m., while the deceased was

walking near Vanaganapalli Diversion Road, the owner-cum-driver of

the Maruthi Omni Car bearing Registration No.KA-08-N-403 drove the

said car in a rash and negligent manner and dashed the deceased as a

result of which the deceased sustained fatal injuries and died on the spot

and Cr.No. 48 of 2011 was registered for the offence under Sections 279

and 304(A) of the Indian Penal Code.

3.The third respondent filed a counter denying all the averments

made in the claim petition and stated that in any case, the claim was

excessive.

4.The first and second respondents remained ex-parte before the

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CMA No. 845 / 2022

tribunal.

5.The first appellant examined himself as PW1 and marked Ex.P.1

to Ex.P.9 and one Srinivasan, who is the eye-witness of the occurrence

has been examined as PW2. No witness was examined and no document

was marked on the side of the third respondent.

6.The Tribunal after considering the oral and documentary

evidence filed on the side of the appellants awarded a compensation of

Rs.8,90,000/- to the appellants. Aggrieved by the said order, the

appellants had preferred the instant appeal.

7.The learned counsel for the appellants submitted that the tribunal

ought to have fixed the monthly income of the deceased as per the

Judgment of this Court in Andal and others Vs. Avinan Kannan and

another reported in 2019 (1) TN MAC 54 (DB) as Rs.9,000/- and thus

prayed for enhancement of the compensation.

8. However, the learned counsel for the third respondent submitted

that the enhancement claimed by the learned counsel for the appellants

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CMA No. 845 / 2022

cannot be considered and submitted that the tribunal had correctly

considered the evidence on record and fixed just compensation at

Rs.8,90,000/- and prayed for dismissal of the appeal.

9.This Court finds that in cases where the claimants have not

established the income, a notional income is fixed. However, this Court

finds that there is no basis while fixing the notional income. It depends

on the nature of the job done by the deceased / claimant and most of the

times, it is left to the discretion of the Court. The Division Bench of this

Court in Andal's case (cited supra), had adopted the method by which

the notional income was fixed on the basis of the cost of inflation index

determined by Central Board of Direct Tax (CBDT). The Honourable

Division Bench took into consideration the income at Rs.6500/- as the

income for a flower vendor in the year 2018 based on the Judgment of

the Honourable Apex Court in Syed Sadiq Vs. United In