CMA.No.4139 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :19.04.2023

CORAM

THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

C.M.A.No.4139 of 2019

1.Sasikala

2.Sasikumari

...Appellants

Vs

1.G.Shifa

2.Bharati General Insurance Co, Ltd.,

2^nd Floor Metro Plaza

162, Anna Salai

Chennai 600 002.

..Respondents

Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor

Vehicles Act, 1988, to set aside the Judgment and Decree passed in

MCOP.No.209 of 2015 dated 21.11.2016 on the file of Motor Accident

Claims Tribunal-cum-Special District Judge, Villupuram.

For Appellants

: Ms.M.Selvam

For Respondents

: Mr.S.Arunkumar for R2

J U D G M E N T

This appeal has been filed by the claimants seeking

enhancement of compensation under the impugned award dated 21.11.2016

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CMA.No.4139 of 2019

passed by the Motor Accident Claims Tribunal -cum-Special District Judge,

Villupuram. in MCOP.No.209 of 2015.

2. On 21.10.2014 at about 6.00 a.m., while the deceased was on the

way to her daughter's house on the left side of Chennai to Thiruchy bye-pass

road near Janakipuram bus stop standing there for crossing the road from

east to west, the first respondent's vehicle bearing Regn.No.TN-10-Y-4998,

driven by its driver, in a rash and negligent manner, dashed against the

deceased, due to which, the deceased was thrown away and thereby

sustained severe fatal injuries and died on the spot. Claiming that the

deceased was a milk vendor and was earning about Rs.15,000/- per month

and the driver of the car is solely responsible for the accident, the appellants

/ claimants have filed a claim petition before the Tribunal claiming a sum of

Rs.10,00,000/- .

3. The appellants unsatisfied with the quantum of compensation

awarded by the Tribunal under the impugned award have preferred this

appeal seeking enhancement.

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CMA.No.4139 of 2019

4. The details of the compensation awarded by the Tribunal under the

impugned award are as follows:

Heads

Award Amount

(Rs.)

Loss of Income

2,43,000/-

Loss of love and

affection to appellants

20,000/-

Funeral Expenses

20,000/-

Total

2,83,000/-

After deducting 20% of contributory negligence on the side of the

deceased, total compensation works out to Rs.2,26,400/- (2,83,000 –

56,600/-)

5. Before the Tribunal, the Appellants/claimants examined two

witnesses as PW1 and PW2 and filed eight documents which were marked

as Ex.P1 to Ex.P8. On the side of the Respondents, neither witness was

examined nor document filed.

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CMA.No.4139 of 2019

6. Heard the learned counsel for the appellants and learned counsel

for the second respondent and perused the materials available on record.

7. The learned counsel appearing for the Appellants/Claimants

submitted that the Tribunal has erroneously fixed Rs.4500/- per month as

income of the deceased. It has failed to consider the ratio propounded by

this Court in 2009 (1) TNMAC 249 DB and 2009 (1) TNMAC 556 and

2017 (2) TNMAC 609. It has erred in fixing negligence on the part of the

deceased as 20% without considering the proper evidence. It has erred in

deducting 1/3^rd instead of 50%. towards personal expenses. It has not

awarded any amount under the heads of transport expenses, love and

affection and loss of estate. The Tribunal, without appreciating the evidences

properly, has awarded the total compensation of Rs.2,26,400/- and the said

quantum is unreasonable. It has erred in awarding Rs.20,000/- towards loss

of love and affection to the appellants and Rs.20,000/- towards funeral

expenses and the same are very meagre. Hence, he prayed to enhance the

compensation.

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CMA.No.4139 of 2019

8. Per contra, the learned counsel appearing for the second respondent

submitted tha