Madras High Court
K.Latha vs P.Parthiban on 28 April, 2021
C.M.A.Nos.794 & 3097 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.Nos.794 & 3097 of 2011
CMA No.794 of 2011
1. K.Latha
2. Krithika K. Moorthy (Minor)
3. K. Karthikeyan (Minor)
4. M.Kunjammal
5. M.Subramanian
(Minors rep. By mother & Natural
Guardian the 1st petitioner) .... Appellant
Vs
1. P.Parthiban
2. The New India Assurance Co. Ltd.,
No.92, G.N.Chetty Street,
Mezzanine Floor, East Coast Chambers,
T.Nagar, Chennai – 600 017.
3. V. Panneerselvam
4. United India Insurance Co. Ltd.,
No.14, Whites Road,
Sudarshan Buildings,
II Floor, Chennai – 600 014. .... Respondents
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C.M.A.Nos.794 & 3097 of 2011
CMA No.3097 of 2011
United India Insurance Co. Ltd.,
No.14, Whites Road,
Sudarshan Buildings,
II Floor, Chennai – 600 014. .... Appellant
Vs
1. K.Latha
2. Krithika K. Moorthy (Minor)
3. K. Karthikeyan (Minor)
4. M.Kunjammal
5. M.Subramanian
(Minors rep. By mother & Natural
Guardian the 1st petitioner)
6. P.Parthiban
7. The New India Assurance Co. Ltd.,
No.92, G.N.Chetty Street,
Mezzanine Floor, East Coast Chambers,
T.Nagar, Chennai – 600 017.
8. V. Panneerselvam .... Respondents
Common Prayer: Civil Miscellaneous Appeals filed under Section 173
of the Motor Vehicles Act, against the order and decree dated 15.09.2010
made in M.A.C.T.O.P.No.3098 of 2007 on the file of the Chief Judge,
Small Causes Court (Motor Accidents Claims Tribunal), Chennai.
In CMA No.794 of 2011
For Appellant : Mr.N.M.Muthurajan
For R1 : M/s.V.Malathy
For R2 : M/s.S.R.Sumathy
For R3 : Notice Served
For R4 : Mr.S.Arun Kumar
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C.M.A.Nos.794 & 3097 of 2011
In CMA No.3097 of 2011
For Appellant : Mr.S.Arun Kumar
For R1 to R5 : Mr.R.Kalaiarasan
For R6 & R8 : No appearance
For R7 : Mr.M.Krishnamoorthy
COMMON JUDGMENT
These appeals have been laid as against the judgment and decree
dated 15.09.2010 made in M.A.C.T.O.P.No.3098 of 2007 on the file of
the Chief Judge, Small Causes Court (Motor Accidents Claims Tribunal),
Chennai.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status before the Tribunal.
3. The case of the claimants is that on 30.04.2007, when the
deceased was walking along Jalandarpettai to Medavakkam Road, near
Ganesh Flour Mill, the first respondent, who was riding his motor cycle
bearing Registration No.TN-22-P8561 in a rash and negligent manner, hit
against the on going motor cycle bearing Registration No.TN-07-Z-3969
ridded by the third respondent, in which the first respondent's motor
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C.M.A.Nos.794 & 3097 of 2011
cycle came and hit against the deceased, due to which, the pedestrian
sustained grievous injuries and died in the hospital. Hence, the claim
petition.
4. The second respondent filed a counter stating that the first
respondent had a valid driving licence and the accident took place only
because of the rash and negligent driving on the part of the third
respondent and therefore, the second respondent is not liable to pay any
compensation.
5. The fourth respondent filed a counter stating that only because
of the rash and negligent driving of the first respondent the accident took
place and therefore, the fourth respondent is no way connected to the
accident. Since the first respondent had driven his motor cycle in a rash
and negligent manner, and he himself had hit the motor cycle which was
driven by the third respondent caused the accident, the fourth respondent
is not liable to pay any compensation.
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C.M.A.Nos.794 & 3097 of 2011
6. On the side of the claimants, they examined PW.1 and PW.2
and marked Exs.P1 to P6. On the side of the respondents no one was
examined and no exhibits were marked.
7. A perusal of the records reveals that the Tribunal fastened the
liability of 75% against the first respondent and 25% against the third
respondent and awarded a sum of Rs.5,30,000/- as compensation payable
by the respondents. Aggrieved by the same, the claimants filed CMA
No.794 of 2011 and the Insurance Company filed CMA No.3097 of
2011, for enhancement of the award.
8. The learned counsel for the claimants submitted that the
Tribunal failed to award any future prospects for the deceased, who died
at the age of 44. Though, they specifically averred that he was earning
a sum of Rs.7,545/- as monthly income and also was earning a sum of
Rs.10,000/- from the real estate business, the Tribunal had taken only
Rs.4,500/- as monthly income and awarded a very meagre compensation.
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C.M.A.Nos.794 & 3097 of 2011
The Tribunal also failed to award any compensation under the head of
loss of estate and transportation charges.
9. Per contra, the learned counsel for the second respondent
submitted that the Tribunal had rightly fixed the monthly salary at
Rs.4,500/- for the deceased, since the claimants failed to prove his
income by any documentary evidence.
10. Heard the learned counsel appearing for the appellants and
the learned counsel appearing for the respondents and perused the
materials available on record.
CMA No.794 of 2011
11. Though the Tribunal fixed contributory negligence at 75% on
the first respondent and 25% on the third respondent for causing
accident, the second and the fourth respondent, being their insurer, did
not file any appeal. Insofar as quantum is concerned, though the
claimants stated that the deceased was earning Rs.7,545/- per month and
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C.M.A.Nos.794 & 3097 of 2011
Rs.10,000/- from the real estate business, they did not file any
documentary evidence. The accident took place in the year 2007.
Therefore, the Tribunal rightly fixed the monthly income at Rs.4,500/-.
There are totally five claimants and even then the Tribunal had deducted
1/3rd for personal expenditure of the deceased instead of 1/4th deduction.
The Tribunal also failed to award any compensation for the future
prospects of the deceased. Accordingly, the loss of income is calculated
as Rs.4,500 * 25% - ¼ * 12 * 14 = Rs.7,08,972/-. Therefore, this Court
is inclined to award compensation under various heads as follows :
Heads Amount Amount
awarded by awarded by this
Tribunal Court (Rs.)
Pecuniary Loss 5,04,000.00 7,08,792.00
[Rs. 4,500+25%-1/4 * 12 * 14 =
Rs.7,08,972/-]
Loss of consortium 10,000.00 40,000.00
Loss of estate 10,000.00 20,000.00
Funeral expenses 6,000.00 10,000.00
Transportation charges - 10,000.00
Damage of clothes - 2,000.00
TOTAL 5,30,000.00 7,90,792.00
12. In the result the CMA No.794 of 2011 is allowed as
follows:-
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C.M.A.Nos.794 & 3097 of 2011
(i) The compensation awarded at a sum of Rs.5,30,000/- is
enhanced to Rs.7,90,792/-.
(ii) The award amount will carry the interest at the rate of 7.5%
per annum from the date of the claim petition till the date of deposit.
(iii) The claimants are entitled to apportion the award amount as
follows:-
1st claimant - Rs. 3,00,000.00/-
2nd and 3th claimant - Rs. 75,000.00/- each
4th and 5th claimant - Rs. 1,70,396.00/- each
(iv) The second respondent/Insurance Company is directed to
deposit the enhanced award amount, less the amount, if any, already
deposited, along with accrued interest within a period of six weeks from
the date of receipt of copy of this Judgment.
(v) On such deposit, the claimants are permitted to withdraw
the amount awarded as above by filing proper application before the
Tribunal.
(vi) The claimants shall pay requisite Court fee before the receipt
of the copy of the judgment for the enhanced compensation.
(vii) There shall be no order as to costs.
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C.M.A.Nos.794 & 3097 of 2011
CMA No.3097 of 2011
13. The fourth respondent challenged the award and so far as the
contributory negligence fixed at 25% by the Tribunal.
14. The learned counsel for the appellant submitted that even
according to the claimants when the deceased was walking in the road,
the first respondent drove his motor cycle in a rash and negligent manner,
which was driven by the third respondent and thereafter hit against the
deceased. Due to which, he sustained grievous injuries and died. Even
then, the Tribunal, without any iota of evidence, fixed contributory
negligence on the part of the third respondent at 25 %. In fact, the FIR
was registered as against the first respondent and also charge sheet as
against him.
15. On perusal of the records, it is seen that FIR was registered
against the first respondent. The concerned Inspector of Police also laid
charge sheet as against the first respondent. Even then, the Tribunal, on
the strength of the eye witness of P.W.3, concluded that the accident
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C.M.A.Nos.794 & 3097 of 2011
occurred due to the rash and negligent driving of both the motor cycles,
which were driven by the first and third respondent. Whereas, on
perusal of the FIR, the accident took place only on the negligence on the
part of the first respondent. Therefore, the Tribunal ought not to have
fixed the contributory negligence on the part of the third respondent at
25%.
16. Accordingly, the decree dated 15.09.2010 made in
M.A.C.T.O.P.No.3098 of 2007 on the file of the Chief Judge, Small
Causes Court (Motor Accidents Claims Tribunal), Chennai, is hereby set
aside, insofar as fixing contributory negligence on the part of the third
respondent at 25%. Therefore, the entire compensation is liable to be
paid by the first and second respondent. The second respondent, being
the insurer of the first respondent vehicle, is directed to pay the entire
compensation as enhanced above.
17. Accordingly, the CMA No.3097 of 2011 is allowed. The
fourth respondent is permitted to withdraw the amount deposited, if any,
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C.M.A.Nos.794 & 3097 of 2011
pursuant to the award, forthwith. If the deposited amount had already
been withdrawn by the claimants, the fourth respondent is at liberty to
recover the amount deposited by the fourth respondent from the second
respondent in the manner known to law.
28.04.2021
Index:Yes/No
Internet: Yes/no
Speaking/Non-speaking Order
Lpp
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C.M.A.Nos.794 & 3097 of 2011
G.K.ILANTHIRAIYAN, J.
Lpp
To
1. The Chief Judge,
Small Causes Court
(Motor Accidents Claims Tribunal),
Chennai.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
C.M.A.Nos.794 & 3097 of 2011
28.04.2021
https://www.mhc.tn.gov.in/judis
