Madras High Court
Venugopal vs P.Annadurai on 15 April, 2021
C.M.A.No.351 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.04.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.M.A.No.351 of 2019
1.Venugopal,
S/o.Vellai Nattar
2.Rani,
W/o.Venugopal ... Appellants
Vs.
1.P.Annadurai
2.The Manager,
Royal Sundaram Alliance
Insurance Co., Ltd.,
Regd. Office at 21, Pattulose Road,
Chennai – 2. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and Decree dated 04.01.2013
made in M.C.O.P.No.59 of 2008, on the file of the Motor Accidents
Claims Tribunal at Kancheepuram, (Sub-Judge at Kancheepuram).
For Appellants : Mr.Venkatesan Kaliswaran
for Mr.N.Veerawamy
For Respondents :
For R1 : No appearance
For R2 : Mr.G.Vasudevan
JUDGMENT
The claimants are the appellants and are aggrieved by the
impugned Judgement and decree dated 04.01.2013 passed by the Motor
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Accidents Claims Tribunal, Subordinate Judge, Kanchipuram in
M.C.O.P.No.59 of 2008.
2. By the impugned Judgment and Decree, the Tribunal has
awarded a sum of Rs.3,91,500/- as compensation as against the total
claim of Rs.7,00,000/-.
3. The claimants are the parents of the deceased/V.Balaji, aged
about 28 years who met with an accident on 21.07.2007 while driving the
milk van when the tipper lorry belonging to the 1st respondent insured
with the 2nd respondent/Insurance Company is said to have collided with
the milk van, in which, the deceased was driven as a result of which he
sustained fatal injuries.
4. By the impugned Judgement and decree, the Tribunal has
apportioned 50% contributory negligence on the part of the deceased on
the ground that the appellants/claimants have not taken any steps to
prove that the accident occured due to the rash and negligent driving of
the tipper lorry driven by the driver of the insured lorry. Under these
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C.M.A.No.351 of 2019
circumstances, the Court has come to a conclusion that it would be fair to
apportion 50% contributory negligence on the part of the deceased and
50% on the owner of the tipper lorry and therefore the 2 nd
respondent/Insurance Company.
5. Heard the learned counsel for the appellants and the
respondents.
6. Before the Tribunal, the appellants/claimants have filed Exs.P1
to P10. On behalf of the respondents, Ex.R1-Motor Vehicles Report was
filed. However, a copy of the Accident Sketch has not been filed either
by the appellants/claimants or by the 2nd respondent/Insurance Company.
7. Therefore, the conclusion drawn by the Tribunal that the
deceased would have been also contributed to the accident cannot be
sustained. After all, the 2nd respondent/Insurance Company is
well-endowed with paid officer. It has means to investigate and give a
report to guide the Court to come to a fair conclusion on facts. The 2nd
respondent/Insurance Company has failed in its endeavour. As far the
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C.M.A.No.351 of 2019
appellants/claimants are concerned they have discharged the initial
burden of proof.
8. Therefore, I am of the view, the conclusion drawn by the
Tribunal by contributing 50% contributory negligence on the part of the
deceased cannot be sustained.
9. It is further noted that the Tribunal has not awarded
compensation towards future prospects while computing the
compensation payable to the appellants/claimants as per the decision of
the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Pranay
Sethi and Others, (2017) 16 SCC 680. This was perhaps because order
came to be passed prior to the said decision of the Hon'ble Supreme
Court.
10. The appellants/claimants has made out a case for enhancement
of compensation as the amount of income of the deceased has been taken
as Rs.3,000/- per month. It appears to be very low. Considering the fact
that the deceased/V.Balaji was a driver and supporting his family, it
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C.M.A.No.351 of 2019
would be fair to assume a notional monthly income of the deceased as
Rs.5,000/- per month.
11. Therefore, to award a just compensation, there shall be a
further enhancement of 40% towards future prospects on the above
compensation. The amounts awarded by the Tribunal under other heads
appears just and reasonable and therefore they are confirmed.
12. Accordingly, the compensation awarded by the Tribunal is
requantified as follows:-
Heads and Calculation Amount
Loss of earning capacity:-
Monthly Income : Rs.5,000/-
Add: Future Prospects at 40 %
(5,000 x 40/100) : Rs. 2,000/-
----------------
: Rs.7,000/-
Less: Personal Expenses 1/2nd
(7,000x 1/2) : Rs.,7,000/-
----------------
: Rs.3,500/-
Annual Contribution to the family
(3,500 x 12) : Rs.42,000/-
Multiplier 18 (42,000 x 18) : Rs.7,56,000/- Rs.7,56,000/-
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Heads and Calculation Amount
Loss of Love and Affection to the appellants Rs. 1,00,000/-
Funeral Expenses Rs. 25,000/-
Transportation Charges Rs. 10,000/-
Total Rs.8,91,000/-
13. Since the appeal has been filed with considerable delay, it is
made clear that there shall be no interest on the enhancement of
compensation during the period between the date of the receipt of the
Judgment and decree dated 04.01.2013 and the date of filing of this
appeal before this Court on 06.03.2017.
14. The learned counsel for the 2nd respondent/Insurance Company
also mentioned that the amount of compensation awarded by the Tribunal
together with interest had already been deposited. This amount is
permitted to be withdrawn immediately.
15. As far as enhanced amount of compensation is concerned, the
2nd respondent/Insurance Company is directed to deposit the same
together with interest at 6% from the date of filing of the claim petition
till the date of actual payment, within a period of six weeks from the date
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of receipt of a copy of this Judgment after deducting interest for the
delayed period.
16. On such deposit being made by the 2nd respondent/Insurance
Company, the appellants/claimants are permitted to withdraw the same
together with interest accrued thereon, less any amount already
withdrawn in the same proportion as was ordered by the Tribunal.
17. This Civil Miscellaneous Appeal stands partly allowed with the
above observations. No costs.
15.04.2021
arb
Internet : Yes / No
Index : Yes/No
Speaking Order/Non-speaking Order
To:
1. The Motor Accidents Claims Tribunal,
Sub Ordinate Judge, Kanchipuram.
2. The Section Officer,
Vernacular Section,
Madras High Court.
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C.M.A.No.351 of 2019
C.SARAVANAN, J.
arb
C.M.A.No.351 of 2019
15.04.2021
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