Madras High Court

Parvathy vs S.Gunasekaran on 14 December, 2021

                                                                                  C.M.A.No.87 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 14.12.2021

                                                        CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                C.M.A.No.87 of 2014

                  1.Parvathy
                  2.Subramaniam
                  3.Velmurugan
                  4.Sathasivam                                                  .. Appellants
                                                        Vs.

                  1.S.Gunasekaran

                  2.The Branch Manager
                  United India Insurance Company Ltd.
                  Tiruchengode.                                                 .. Respondents

                  Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
                  Vehicles Act, 1988, against the judgment and decree dated 13.10.2003 made
                  in M.C.O.P.No.109 of 1997 on the file of Motor Accident Claims Tribunal,
                  Additional Sub Court, Tindivanam.


                                   For Appellants             : Mr.S.R.Sundaram

                                   For R1                     : No appearance

                                   For R2                     : Mr.J.Chandran


                  1/12


https://www.mhc.tn.gov.in/judis
                                                                                C.M.A.No.87 of 2014

                                                   JUDGMENT

The Civil Miscellaneous Appeal is filed challenging the portion of the

award fixing 50% contributory negligence on the part of the deceased and for

enhancement of compensation granted by the Tribunal in the award dated

13.10.2003 made in M.C.O.P.No.109 of 1997 on the file of Motor Accident

Claims Tribunal, Additional Sub Court, Tindivanam.

2.The appellants are claimants in M.C.O.P.No.109 of 1997 on the file

of Motor Accident Claims Tribunal, Additional Sub Court, Tindivanam.

They filed the said claim petition claiming a sum of Rs.2,00,000/- as

compensation for the death of one Rajangam, who died in the accident that

took place on 10.09.1996.

3.According to the appellants, on the date of accident i.e., on

10.09.1996 at about 8.00 a.m., while the deceased Rajangam was riding in a

bi-cycle on Tindivanam - Kaveripakkam Main Road, the driver of the lorry

belonging to the 1st respondent drove the same in a rash and negligent

manner, from Chennai to Villupuram Road, dashed against the bi-cycle and

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caused the accident. Due to the said impact, the deceased sustained injuries

and died in the hospital. Therefore, the appellants filed the above claim

petition claiming compensation against the respondents, who are owner and

insurer of the lorry respectively.

4.The 1st respondent, owner of the lorry remained exparte before the

Tribunal.

5.The 2nd respondent/Insurance Company, insurer of the lorry filed

counter statement denying the averments made in the claim petition and

stated that the accident has occurred only due to negligence on the part of the

deceased. The driver of the lorry belonging to the 1st respondent is not

responsible for the accident. The driver of the lorry did not possess valid

driving license and the lorry was not insured with the 2nd respondent at the

time of accident. Therefore, the 2nd respondent/Insurance Company is not

liable to pay any compensation to the appellants. The 2 nd

respondent/Insurance Company has also denied the age, avocation and

income of the deceased. In any event, the compensation claimed by the

appellants is excessive and prayed for dismissal of the claim petition.

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6.Before the Tribunal, the 2nd appellant, son of the deceased, examined

himself as P.W.1, one Poonjolai, was examined as P.W.2, one Maran, eye-

witness to the accident was examined as P.W.3 and 6 documents were marked

as Exs.P1 to P6. The 2nd respondent/Insurance Company did not let in any

oral and documentary evidence.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

the driver of the lorry belonging to the 1st respondent as well as negligence

on the part of the deceased, fixed 50% contributory negligence on the part of

both the deceased as well as 1st respondent, owner of the lorry, awarded a sum

of Rs.75,000/- as compensation and directed both the 1st respondent as well as

2nd respondent/Insurance Company being insurer of the said lorry to jointly

and severally pay a sum of Rs.37,500/- after deducting 50% contributory

negligence, as compensation to the 1st appellant and did not grant any

compensation to the appellants 2 to 4, who are sons of the deceased, as they

are not dependants of the deceased.

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8.Challenging the portion of the award fixing 50% contributory

negligence on the part of the deceased and not being satisfied with the

amounts awarded by the Tribunal, the appellants have come out with the

present appeal seeking enhancement of compensation.

9.The learned counsel appearing for the appellants contended that the

accident has occurred only due to rash and negligent driving by the driver of

lorry belonging to the 1st respondent. The Tribunal erroneously fixed 50%

contributory negligence on the part of the deceased. At the time of accident,

the deceased was a reputed Sthapathy recognised by the Government of Tamil

Nadu and was earning a sum of Rs.5,000/- per month. To prove the same, the

appellants have marked the certificate issued by H.R. and C.E. Board as

Ex.P6. The 1st appellant, wife of the deceased was depending only on the

income of the deceased and she has no other income. The Tribunal without

considering the same, fixed only a meagre sum of Rs.1,500/- per month as

notional income of the deceased. The amounts awarded by the Tribunal under

different heads are meagre and prayed for setting aside 50% contributory

negligence fixed on the part of the deceased and for enhancement of

compensation.

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10.Per contra, the learned counsel appearing for the 2nd

respondent/Insurance Company contended that the accident has occurred only

due to negligence of the deceased. The Tribunal has rightly fixed 50%

negligence on the part of the deceased. The appellants have failed to produce

any document to prove the income of the deceased. In the absence of any

material evidence with regard to monthly income, the notional income fixed

by the Tribunal is not meagre. The total compensation awarded by the

Tribunal is also not meagre. The appellants have not made out any case for

enhancement of compensation and prayed for dismissal of the appeal.

11.Though notice has been served on the 1st respondent and his name

is printed in the cause list, there is no representation for the 1st respondent

either in person or through counsel.

12.Heard the learned counsel for the appellants, who appeared before

this Court physically as well as the learned counsel appearing for the 2nd

respondent/Insurance Company through Video-conferencing/Hybrid mode

and perused the entire materials available on record.

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13.From the materials on record, it is seen that it is the case of the

appellants that while the deceased Rajangam was riding in a bi-cycle on

Tindivanam - Kaveripakkam Main Road, the driver of the lorry belonging to

the 1st respondent drove the same in a rash and negligent manner, from

Chennai to Villupuram Road, dashed against the cycle and caused the

accident. In the accident, the said Rajangam sustained injuries and died. To

prove the said contention, the appellant examined P.W.1 to P.W.3 and marked

6 documents as Exs.P1 to P6 including F.I.R., which was registered against

the driver of the lorry. From Ex.P5/the judgment of the criminal Court, it is

seen that the driver of the lorry pleaded guilty and paid fine. The 1 st

respondent, owner of the lorry remained exparte before the Tribunal. It is the

case of the 2nd respondent/Insurance Company that deceased suddenly

crossed the road without seeing the lorry and invited the accident. The driver

of the lorry was not responsible for the accident and the accident has occurred

only due to negligence of the deceased. To prove their case, the 2nd

respondent did not examine the driver of the lorry or any eye-witness. From

the award of the Tribunal, it is seen that the appellants have examined P.W.3,

eye-witness to the accident. The Tribunal did not accept the evidence of P.W.3

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due to certain discrepancies in his evidence and Ex.P4/rough sketch. Further,

P.W.3 is known person to the son of the deceased and held that he is an

interested witness. The said reasoning of the Tribunal is not correct. P.W.3

denied suggestion put to him that accident occurred in the middle of the road.

The Tribunal ought to have considered the evidence of P.W.3 along with

Ex.P1/F.I.R., Ex.P5/judgment of the criminal Court and the fact that the

respondents have not let in any evidence to disprove the case of the

appellants. Even though the contents of F.I.R. and criminal Court proceedings

are not binding on the Tribunal, the same can be taken into account along

with evidence let in by the parties. Considering the entire materials on record,

this Court is of the view that reasoning given by the Tribunal for fixing 50%

negligence on the part of the deceased, is only based on assumption and

surmises and the same is not correct and is erroneous. Hence, the award of the

Tribunal fixing 50% contributory negligence on the part of the deceased is

liable to be set aside and is hereby set aside. The entire negligence is fixed on

the driver of the lorry belonging to the 1st respondent. Both the 1st respondent

as well as 2nd respondent are jointly and severally liable to pay entire

compensation to the 1st appellant.

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14.As far as quantum of compensation is concerned, it is the contention

of the appellants that at the time of accident, the deceased was a Sthapathy

recognised by the Government of Tamil Nadu and was earning a sum of

Rs.5,000/- per month. To prove the avocation of the deceased, the appellants

have marked the certificate issued by H.R. and C.E. Board as Ex.P6. The

appellants have not filed any document to prove the income of the deceased.

The Tribunal taking into consideration that the deceased will not have work

on all the 30 days, fixed a sum of Rs.1,500/- per month as notional income of

the deceased. The accident is of the year 1996. The notional income fixed by

the Tribunal is meagre. Hence, a sum of Rs.2,000/- per month is fixed as

notional income of the deceased. As per Ex.P3/post-mortem certificate, the

deceased was aged 70 years at the time of accident. The Tribunal applied

multiplier '5' and deducted 1/3rd towards personal expenses of the deceased,

which are proper. Thus, the compensation awarded by the Tribunal towards

loss of dependency is modified to Rs.80,000/- (Rs.2,000/- X 12 X 5 X 2/3).

The sum of Rs.10,000/- and Rs.5,000/- awarded by the Tribunal towards loss

of consortium and funeral expenses are meagre and hence, the same are

hereby enhanced to Rs.40,000/- and Rs.15,000/- respectively. The Tribunal

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has not awarded any amount towards transportation and loss of estate and

hence, Rs.2,500/- and Rs.15,000/- are awarded towards transportation and

loss of estate respectively. Thus, the compensation awarded by the Tribunal is

modified as follows:

                    S.No          Description     Amount          Amount awarded    Award
                                                 awarded by        by this Court confirmed or
                                                  Tribunal             (Rs)      enhanced or
                                                    (Rs)                          granted or
                                                                                   reduced
                   1.         Loss of                  60,000             80,000 Enhanced
                              dependency
                   2.         Loss of                  10,000             40,000 Enhanced
                              consortium
                   3.         Funeral                   5,000             15,000 Enhanced
                              expenses
                   4.         Transportation                  -            2,500 Granted
                   5.         Loss of estate                  -           15,000 Granted
                              Total                    75,000            1,52,500 Enhanced by
                                                   50% of the                     Rs.1,15,000/-
                                                award amount                      [Rs.1,52,500/-
                                                       37,500                     - Rs.37,500]

15.In the result, this Civil Miscellaneous Appeal is allowed and the

compensation awarded by the Tribunal at Rs.75,000/- is hereby enhanced to

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Rs.1,52,500/- together with interest at the rate of 9% per annum from the date

of petition till the date of deposit. The appellants are directed to pay the

necessary Court fee if any, on the enhanced award amount. The respondents

are jointly and severally directed to deposit the award amount now

determined by this Court along with interest and costs, less the amount

already deposited, if any, within a period of eight weeks from the date of

receipt of a copy of this judgment. On such deposit, the 1st appellant is

permitted to withdraw the entire amount awarded by this Court along with

interest and costs, less the amount if any, already withdrawn. No costs.