Madras High Court
Arayee vs Kalaiselvi on 7 December, 2021
C.M.A.No.419 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
Civil Miscellaneous Appeal No.419 of 2018
[video conferencing]
1.Arayee
2.Malliga
3.Manivannan
4.Vijay
5.Thenmozhi
6.Sureshkumar
7.Minor.Surya
8.Minor.Thamaraiselvi
9.Minor.Ajith
(Minor Appellants 7 to 9 are represented by their next friend
/guardian mother Thenmozhi, 5th Appellant herein) .. Appellants
Versus
1.Kalaiselvi
2.M/s. United India Insurance Company Ltd.,
Divisional Office No.3, Arjuna Towers,
No.248/164, Cherry Road,
Salem – 613 001. ... Respondent
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Award and Decree dated 09.01.2017 made in
M.C.O.P.No.1914 of 2014, on the file of the Motor Accidents Claims
Tribunal, III Additional District Court, Salem.
For Appellants : Mr.Yuaraj
For R1 : Mr.Dr.P.Jagadeesan
For R2 : Mr.C.Paranthaman
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C.M.A.No.419 of 2018
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the portion
of the award dated 09.01.2017, passed in M.C.O.P.No.1914 of 2014, on the
file of the Motor Accident Claims Tribunal, III Additional District Court,
Salem in so far as it relates to fixing 50% contributory negligence on the part
of the driver cum owner of the two wheeler in which the fifth appellant herein
was riding pillion as well as for enhancement of compensation.
2. The appellants are the claimants in M.C.O.P.No.1914 of 2014, on
the file of the Motor Accidents Claims Tribunal, III Additional District Court,
Salem. They have filed the above said claim petition, claiming a sum of
Rs.20,00,000/- as compensation for the death of Idumban, husband of the first
and fifth appellants herein in the accident that took place on 10.06.2014.
3. According to the appellants, on 10.06.2014, at about 18.10 hours,
the fifth appellant along with one Arumugam were traveling pillion in TVS
XL Moped, bearing Registration No.TN 54 E 6991, which was driven by the
deceased Idumban on the extreme left side of the road in Valasaiyur to
Veeranam Main Road. When the said vehicle was nearing Thailanoor bus
stop, a lorry bearing registration No.TN 54 2900 owned by the first
respondent and insured with the second respondent was proceeding in front of
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the two wheeler. According to the appellants, the driver of the lorry, due to
rash and negligent driving of the vehicle had applied sudden brake without any
reasonable cause. As a result of such act of the driver of the lorry, the
deceased, who was driving TVS XL Moped, caught unaware and dashed
against the rear side of the lorry. In the impact, the deceased sustained fatal
injuries and died on the spot. Therefore, the appellants have filed the said
claim petition claiming a sum of Rs.20,00,000/- as compensation against the
respondents, being the owner and insurer of the lorry respectively.
4. The 2nd respondent/Insurance Company, being the insurer of the
lorry belonging to first respondent, filed counter statement before the Tribunal
and denied all the averments made by the appellants. According to the second
respondent, the accident had not occurred as alleged by the appellants. The
driver of the lorry drove the vehicle slowly and carefully. However, the rider
of the TVS XL Moped bearing Registration No.TN 54 E 6991, being the
deceased, driven it negligently. In fact, at the time of accident, apart from the
driver, two other persons inluding the fifth appellant herein were occupants of
the vehicle (triples). In view of the same, when the driver of the lorry applied
brake, the driver of the two wheeler could not exercise reasonable control or
caution to stop the vehicle. Therefore, due to the negligent driving of the
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driver of the two wheeler, the accident had occurred. Further, it is stated that
the driver of the lorry belonging to first respondent did not hit either the
occupants of the two wheeler or the deceased who had driven the vehicle.
Therefore, the driver of the lorry owned by the first respondent has not
involved in the said accident and hence, the second respondent is not liable to
pay any compensation to the appellants. Further, the driver of the lorry
belonging to first respondent as well as the deceased Idumban were not
possessing valid driving licence at the time of accident. In any event, the
quantum of compensation claimed by the appellants is excessive and hence,
the Insurance Company prayed for dismissal of the claim petition.
5. Before the Tribunal, the fifth appellant examined herself as P.W.1
and one Dr.K.V.Srinivasan was examined as P.W.2 and 11 documents were
marked as Exs.P1 to P11. On the side of the respondents, R.W.1 to R.W.3
were examined and one document was marked as Ex.R1. In addition to that,
Exs.X1 and X2 were marked as Court documents.
6. The Tribunal, considering the pleadings, oral and documentary
evidence, held that both the deceased as well as the driver of the lorry
belonging to first respondent, are responsible for the accident, and
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accordingly, the Tribunal fixed the contributory negligence in the ratio of 50%
each. The Tribunal, on appreciation of the material evidence awarded a sum
of Rs.10,01,000/- as compensation to the appellants and directed the second
respondent/Insurance Company to deposit Rs.5,00,500/-, being 50% of the
award amount, as compensation to them at the first instance and thereafter to
recover it from the owner of the Lorry being the first respondent herein.
7. Not being satisfied with the award of the Tribunal in so far as it
relates to fixation of 50% of liability on the deceased and for enhancement of
compensation, the appellants have come out with the present appeal seeking
enhancement of compensation. It is noteworthy to mention that the second
respondent/Insurance Company has not filed any appeal questioning the 50%
liability imposed on them.
8. The learned counsel appearing for the appellants/claimants
contended that the Tribunal erred in fixing 50% contributory negligence on the
part of the deceased. The accident occurred only due to the rash and negligent
driving of the driver of the lorry, who, without reasonable or sufficient cause,
abruptly applied sudden brake to bring the vehicle to a grinding halt. Due to
such an act of the driver of the lorry, the deceased was caught unaware and hit
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the rear side of the lorry. In such a circumstances, the Tribunal ought not to
have fixed contributory negligence at all. Therefore, the findings rendered by
the Tribunal to that effect required to be interfered with by this Court.
9. According to the counsel for the appellants, at the time of
accident, the deceased was 44 years old and engaged in manufacturing of
bricks and supplying the same. The deceased was earning a sum of
Rs.25,000/- per month out of such avocation. However, the Tribunal fixed a
meager sum of Rs.5,000/- per month as notional income of the deceased.
Further, there are nine dependants to the deceased and the Tribunal ought to
have given 1/5 deductions towards personal expenses, instead of making 1/3
deduction. The Tribunal also failed to award any amount towards loss of
estate. The compensation awarded under the various heads are mesley and
they warrant enhancement.
10. Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that the deceased, who was the
rider of TVS XL Moped, had driven the vehicle with two other occupants
(triples) including his fifth appellant, who is his second wife at the time of
accident. While so, it cannot be gainsaid that the accident had occurred due to
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the sudden brake applied by the driver of the lorry. As the deceased was
riding the two wheeler with two other occupants, he could not exercise control
over the vehicle and hit the rear side of the lorry. While so, the Tribunal is
wholly justified in fixing 50% negligence on the deceased.
11. As regards quantum, the appellants did not produce any material
evidence to prove the avocation and income of the deceased. In the absence of
any material evidence to prove the income, a sum of Rs.5,000/- per month was
fixed by the Tribunal as notional income of the deceased and that by itself is
excessive. In any event, the Tribunal, considering the entire materials on
record, has awarded compensation under different heads, which are not
meagre but they are just and proper. The learned counsel therefore prayed for
dismissal of the appeal.
12. Heard the learned counsel appearing for the appellants as well as
the learned counsel appearing for the respondents and perused the entire
materials available on record.
13. At the outset, it must be mentioned that in the accident, the
deceased died on the spot while the fifth appellant herein (one of the pillion
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riders) sustained grievous injuries in the very same accident. Therefore, two
Original Petitions were filed before the Tribunal namely M.C.O.P.Nos.1913
and 1914 of 2014. This appeal is focused as against the award passed in
M.C.O.P.No.1914 of 2014 relating to the death of the deceased Idumban.
14. It is the case of the appellants that the accident has occurred while
the deceased Idumban was riding the two wheeler with one Arumugam and the
fifth appellant as occupants (triples). While the two wheeler was proeeding
from Valasaiyur to Veeranam Main Road the lorry bearing registration No.TN
54 2900 owned by the first respondent and insured with the second respondent
said to applied sudden brake. In that process, the deceased, hit the lorry in the
rear side and died on the spot, while the fifth appellant sustained injuries.
15. The Tribunal, considering the evidence of P.W.1, held that the
accident had occurred due to rash and negligent driving by the driver of the
lorry owned by first respondent as well as the deceased. In a case of this
nature, especially when the two wheeler driven by the deceased hit the lorry in
the rear side, it can reasonably presumed that the contribution has to be fixed
equally. In fact, at the time of accident, the deceased was riding the two
wheeler with two pillion rider namely one Arumugam and the fifth appellant
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herein. Therefore also, it can be sufficiently presumed that the deceased, due
to unauthorised riding of the vehicle, could not exercise effective control over
the vehicle driven by him. In such event, the contributory negligence fixed by
the Tribunal is proper and this Court finds no reason to interfere with the
same. Further the Tribunal after considering the fact that the first respondent
vehicle was driven without Fitness Certificate in violation of policy condition
ordered, the second respondent/Insurance Company to pay the award amount
at the first instance and recover the same from the first respondent. This Court
does not find any infirmity in the award passed by the Tribunal.
16. As far as quantum of compensation is concerned, it is the case of
the appellants that at the time of accident, the deceased was aged about 44
years and doing manufacturing bricks and supply work and was earning a sum
of Rs.25,000/- per month. The appellants have not produced any documents to
prove the avocation and income of the deceased. In the absence of any
acceptable material evidence to prove the avocation and income, the Tribunal
fixed a sum of Rs.5,000/- per month as notional income of the deceased, which
is meagre. This is more so that the deceased left nine persons as his
dependants. It can be reasonably presumed that the deceased would have
contributed atleast Rs.10,000/- to his family while he was alive. Therefore, a
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sum of Rs.10,000/- per month is fixed as notional income of the deceased. The
Tribunal wrongly applied multiplier '13' instead of '14' as per the judgment of
the Hon'ble Apex Court reported in 2009 (2) TN MAC 1 SC, [Sarla Verma &
others Vs. Delhi Transport Corporation & another].
17. The Tribunal has not granted any compensation towards future
prospects. At the time of accident, the deceased was aged about 44 years and
as per the judgment of the Hon'ble Apex Court reported in 2017 (2) TN MAC
609 (SC), [National Insurance Company Limited Vs. Pranay Sethi and
others], 40% compensation towards future prospects has to be fixed. Taking
note of the facts and circumstances of the case, this Court fix 25% of the
monthly contribution of the deceased towards future prospects. There are nine
dependants of the deceased, but the Tribunal erroneously deducted 1/3rd
towards personal expenses, instead of deducting 1/5th. Thus, the compensation
awarded by the Tribunal towards loss of income is modified to Rs.16,80,000/-
{Rs.12,500/- [Rs.10,000/- + Rs.2,500/- (25% of Rs.10,000/-)] X 12 X 14 X
4/5 }.
18. The Tribunal failed to award any amount towards loss of estate
and hence, this Court grants Rs.15,000/- towards loss of estate, which would
be proper in the circumstances of this case. The Tribunal has awarded a sum of
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Rs.25,000/- towards funeral expenses which is highly excessive and hence the
same is hereby reduced to Rs.15,000/-. The Tribunal has awarded a sum of
Rs.5,000/- towards transportation which is meagre and the same is hereby
enhanced to Rs.15,000/-. The Tribunal has awarded a sum of Rs.75,000/-
towards loss of consortium to the 1st appellant, which is highly excessive and
hence the same is hereby reduced to Rs.40,000/.
19. The Tribunal has awarded a sum of Rs.3,50,000/- towards loss of
love and affection to the appellants 2 to 4 and 6 to 9 which are also highly
excessive and hence, this Court fixes Rs.40,000/- towards loss of love and
affection to each of the appellants 2 to 4 and 6 to 9 and which would come to
Rs.2,80,000/-. Thus, the compensation awarded by the Tribunal is modified as
follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of Income Rs.5,46,000/- Rs.16,80,000/- Enhanced
2. Funeral expenses Rs.25,000/- Rs.15,000/- Reduced
3. Loss of consortium to the 1st Rs.75,000/- Rs.40,000/- Reduced
appellant
4. Loss of love and affection to Rs.3,50,000/- Rs.2,80,000/- Reduced
the appellants 2 to 4 and 6 to
9 (each Rs.40,000/-)
5. Transportation Rs.5,000/- Rs.15,000/- Enhanced
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6. Loss of estate --- Rs.15,000/- Granted
Total Rs.10,01,000/- Rs.20,45,000/- Enhanced by
50% of compensation Rs.5,00,500/- Rs.10,22,500/- Rs.10,44,000/-
20. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.10,01,000/- is hereby
enhanced to Rs.20,45,000/- [Rupees Twenty Lakhs and Forty Five Thousand
only] together with interest at the rate of 7.5% per annum from the date of
petition till the date of deposit. The 2nd respondent/Insurance Company is
directed to deposit 50% of the award amount now determined by this Court
(i.e., Rs.10,22,500/-) along with accrued interest and costs, as awarded by the
Tribunal less the amount if any already deposited, within a period of six weeks
from the date of receipt of a copy of this judgment to the credit of
M.C.O.P.No.1914 of 2014 on the file of the Motor Accident Claims Tribunal,
III Additional District Judge, Salem at the first instance and recover the same
from the 1st respondent/owner of the lorry.
21. On such deposit, the first appellant, who is the first wife is
entitled to a sum of Rs.2,50,000/-. The appellants 2 to 6 shall withdraw a sum
of Rs.1,00,000/- each. The balance amount shall be awarded to the minor
appellants equally and it shall be deposited in their name in any one of the
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Nationalized Banks, in any interest bearing Fixed Deposit Scheme till they
attains majority. On such deposit, the fifth appellant, being the mother of the
minor claimants is permitted to withdraw the accrued interest once in three
months for the welfare of the minor claimants. The appellants are directed to
pay the necessary Court fee if any, for the enhanced amount of compensation.
It is made clear that the appellants are not entitled to any interest for the delay
period as per the order of this Court dated 16.02.2018 made in C.M.P.No.1448
of 2018 in C.M.A.SR.No.99718 of 2017. There shall be no order as to costs in
the present appeal.
07.12.2021
(2/2)
ssi/rsh
Index : Yes / No
Speaking Order : Yes / No
To:
1.The III Additional District Judge,
Motor Accidents Claims Tribunal,
Salem.
2.The Section Officer,
VR Section, High Court,
Madras.
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C.M.A.No.419 of 2018
S.KANNAMMAL, J.
ssi
C.M.A.No.419 of 2018
07.12.2021
(2/2)
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