Madras High Court

Palanisamy vs Ashokkumar on 5 February, 2021

                                                                           C.M.A.No.66 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 05.02.2021

                                                    CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                               C.M.A.No.66 of 2021

                   1.Palanisamy

                   2.Chitra                                                    .. Appellants

                                                      Vs.

                   1.Ashokkumar

                   2.Selvaraj

                   3.Maithili

                   4.The United India Insurance Co. Ltd.
                   3rd Arjunaa Tower, 248/164
                   Cherry road, Salem-636 007.                                .. Respondents


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

                   Vehicles Act, 1988, against the judgment and decree dated 30.09.2020 made

                   in M.C.O.P.No.1380 of 2018 on the file of Motor Accident Claims Tribunal,

                   Special District Court, Salem.



                   1/13


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                                                                                 C.M.A.No.66 of 2021

                                   For Appellants     : Mr.T.S.Arthanareeswaran
                                                      for Mr.C.Paraneedharan

                                   For R4             : Ms.I.Malar


                                                    JUDGMENT

This matter is heard through 'Video-conferencing'.

The Civil Miscellaneous Appeal is filed challenging the portion of the

award fixing 20% contributory negligence on the part of the deceased and for

enhancement of compensation granted by the Tribunal in the award dated

30.09.2020 made in M.C.O.P.No.1380 of 2018 on the file of Motor Accident

Claims Tribunal, Special District Court, Salem.

2.The appellants are claimants in M.C.O.P.No.1380 of 2018 on the file

of Motor Accident Claims Tribunal, Special District Court, Salem. They

filed the said claim petition claiming a sum of Rs.25,00,000/- as

compensation for the death of their son Sasikumar, who died in the accident

that took place on 24.06.2018.

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

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24.06.2018 at 1.45 p.m., while the deceased Sasikumar was riding in his

Splendor Plus motorcycle on Narasimma Chetty Road – Sitthar Koil Road

near Vattakinaru Water Service from West to East direction, the 1 st

respondent, the driver of the swaraj mazda medium goods vehicle belonging

to the 2nd respondent coming in the opposite direction, drove the same in a

rash and negligent manner from Sevvapet to Kandhampatti bye-pass road,

dashed against the motorcycle of the deceased and caused the accident. In

the accident, the said Sasikumar sustained fatal injuries and inspite of

treatment, died in the hospital on 02.07.2018. Therefore, the appellants filed

the above claim petition claiming compensation against the respondents 1 to

4, driver, owner of the goods vehicle holding Registration Certificate, owner

of the goods vehicle holding policy and the insurer of the vehicle

respectively.

4.The 1st respondent, driver of the goods vehicle and the respondents 2

and 3, owners of the goods vehicle holding Registration Certificate and

policy, remained exparte before the Tribunal.

5.The 4th respondent/Insurance Company insurer of the goods vehicle

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filed counter statement denying the averments made in the claim petition and

stated that there is no fault on the part of the driver of the goods vehicle and

he drove the vehicle in a careful manner. The deceased Sasikumar took his

friend Boopathy's motorcycle, rode the motorcycle along with his friend one

minor Kasilingam in a rash and negligent manner, came on the extreme right

side of the road to overtake the vehicle, which was proceeding in front of him

and came right in front of the vehicle belonging to the 2nd respondent, hit

against the vehicle and invited the accident. The deceased did not possess

valid driving license to ride the motorcycle. The 3 rd respondent sold the

goods vehicle to the 2nd respondent on 12.04.2018 and Registration

Certificate was transferred in the name of the 2nd respondent. But the 2nd

respondent has not still changed the name in the insurance policy. The policy

period is from 23.02.2018 to 22.02.2019. But the 2nd respondent has not given

intimation within 14 days regarding change of name in the insurance policy.

Therefore, the 4th respondent/Insurance Company is not liable to pay any

compensation to the appellants. In any event, the compensation claimed

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

6.Before the Tribunal, the 1st appellant, father of the deceased,

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examined himself as P.W.1, one Mani, eye-witness to the accident was

examined as P.W.2, one Gopinath, co-worker of the deceased was examined

as P.W.3 and 16 documents were marked as Exs.P1 to P16. The 4th

respondent/Insurance Company examined one Mr.Sankar, Sub-Inspector of

Police as R.W.1, one Mr.Thiagarajan as R.W.2 and marked copy of Aadhar

card of the deceased as Ex.R1. Copy of final report, rough sketch and Motor

Vehicle Inspector's report and R.T.O. reports were marked as Exs.C1 and C2

respectively.

7.The Tribunal considering the pleadings, oral and documentary

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

the 1st respondent, the driver of the goods vehicle belonging to the 2nd

respondent, fixed 20% contributory negligence on the part of the deceased for

not possessing valid driving license and fixed 80% contributory negligence

on the part of the 1st respondent, directed the respondents 2 and 3, owner of

the goods vehicle as well as the 4th respondent/Insurance Company being

insurer of the said goods vehicle to jointly and severally pay a sum of

Rs.15,82,690/- after deducting 20% contributory negligence as compensation

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to the appellants and dismissed the claim petition as against the 1 st

respondent, the driver of the goods vehicle.

8.Challenging the portion of the award fixing 20% 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

the goods vehicle, the 1st respondent herein. The Tribunal erroneously fixed

20% contributory negligence on the part of the deceased. The deceased was

working as a loadman in TATA Ace vehicle and was earning a sum of

Rs.16,000/- per month. The Tribunal without considering the same, fixed

only a meagre sum of Rs.9,000/- per month as notional income of the

deceased. The appellants 1 and 2 are parents of the deceased and the Tribunal

failed to grant any amount towards loss of love and affection and prayed for

setting aside 20% contributory negligence fixed on the part of the deceased

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and for enhancement of compensation.

10.Per contra, the learned counsel appearing for the 4th

respondent/Insurance Company contended that the accident has occurred only

due to negligence of the deceased. The 4th respondent examined

Sub-Inspector of Police as R.W.1, one Mr.Thiagarajan as R.W.2 and marked

copy of final report, rough sketch and Motor Vehicle Inspector's report and

R.T.O. reports as Exs.C1 and C2 respectively and proved that the accident has

occurred only due to rash and negligent riding of the vehicle by the deceased.

The appellants have failed to prove the avocation and income of the

deceased. In the absence of any material evidence with regard to monthly

income, the notional income fixed by the Tribunal is excessive. The total

compensation awarded by the Tribunal is not meagre and prayed for dismissal

of the appeal.

11. Heard the learned counsel appearing for the appellants as well as

the learned counsel appearing for the 4th respondent/Insurance Company and

perused the entire materials available on record.

12.It is the case of the appellants that while their son Sasikumar was

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riding the motorcycle with one Kasilingam as pillion rider, the 1st respondent,

the driver of the goods vehicle, drove the same in a rash and negligent

manner, dashed on the motorcycle driven by the deceased and caused the

accident. In the accident, he sustained injuries and inspite of treatment given

for 9 days, he died in the hospital. To substantiate their case, the 1st

respondent examined himself as P.W.1, one Mani, eye-witness to the accident

as P.W.2 and marked F.I.R. as Ex.P1. On the other hand, it is the case of the

4th respondent/Insurance Company that the accident has occurred only due to

negligence of the deceased. The Tribunal ought to have fixed entire

negligence on the deceased. In support of their case, the 4th respondent

examined the Sub-Inspector of Police as R.W.1 and marked Copy of final

report, rough sketch and Motor Vehicle Inspector's report and R.T.O. reports

as Exs.C1 and C2 respectively. The Tribunal considering the pleadings, oral

and documentary evidence let in by both sides, held that P.W.2 would not

have seen the accident. The appellants have not examined the said pillion

rider Kasilingam, who lodged the complaint. The Tribunal held that the

appellants have not explained as to why the complainant was not examined

and the deceased Sasikumar who was coming from West to East direction,

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crossed the centre median and the accident has occurred on the Southern side

i.e., right side of the deceased, held that the deceased also contributed to the

accident. The Tribunal further held that had the driver of the goods vehicle

driven the same carefully, he could have avoided the accident. Based on the

above conclusion, the Tribunal fixed 20% negligence on the part of the

deceased and 80% negligence on the part of the driver of the goods vehicle.

There is no reason to interfere with the said finding of the Tribunal.

13.As far as the quantum of compensation awarded by the Tribunal is

concerned, it is the case of the appellants that at the time of accident, the

deceased was working as a loadman in TATA Ace vehicle and was earning a

sum of Rs.16,000/- per month. To substantiate the same, the appellants have

examined one Gopinath, co-worker of the deceased as P.W.3. According to

the appellants, the deceased was doing loading and un-loading work along

with P.W.3. The appellants have not examined the person engaged them as

loadmen and failed to prove the avocation and income of the deceased. In the

absence of any material evidence with regard to income, the Tribunal

considering the age and avocation of the deceased, fixed a sum of Rs.9,000/-

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per month as notional income of the deceased. The accident is of the year

2018 and the notional income fixed by the Tribunal is meagre. The deceased

was aged only 19 years at the time of accident. Hence, a sum of Rs.14,000/-

per month is fixed as notional income of the deceased. The Tribunal has

granted 40% enhancement towards future prospects, applied multiplier '18'

and deducted 1/2 towards personal expenses, which are proper. Thus, the

compensation awarded by the Tribunal towards loss of dependency is

modified to Rs.21,16,800/- (Rs.14,000/- + 5600 [Rs.14,000/- X 40%] X 12 X

18 X 1/2). After deducting 20% for contributory negligence, the loss of

dependency comes to Rs.16,93,440/- (Rs.21,16,800/- - Rs.4,23,360/-). The

Tribunal has not awarded any compensation towards loss of love and

affection to the appellants, who are parents of the deceased. Hence, a sum of

Rs.40,000/- each is awarded towards loss of love and affection to the

appellants. The amounts awarded by the Tribunal under all other heads are

just and reasonable and hence, the same are hereby confirmed. Thus, the

compensation awarded by the Tribunal is modified as follows:

                    S.No           Description   Amount    Amount awarded         Award




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                                                                                   C.M.A.No.66 of 2021

                                                  awarded by       by this Court    confirmed or
                                                   Tribunal            (Rs)         enhanced or
                                                     (Rs)                            granted or
                                                                                      reduced
                    1.         Loss of               10,88,640          16,93,440 Enhanced
                               dependency
                    2.         Loss of estate           30,000             30,000 Confirmed
                               and funeral
                               expenses
                    3.         Medical                4,64,050           4,64,050 Confirmed
                               expenses
                    4.         Loss of love                    -           80,000 Granted
                               and affection to
                               the appellants
                               Total                 15,82,690          22,67,490 Enhanced by
                                                                                  Rs.6,84,800/-

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

the compensation awarded by the Tribunal at Rs.15,82,690/- is hereby

enhanced to Rs.22,67,490/- together with interest at the rate of 7.5% per

annum from the date of petition till the date of deposit. The appellants are

directed to pay necessary Court fee, if any, on the enhanced compensation.

The respondents 2 to 4 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 six weeks from the date

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of receipt of a copy of this judgment. On such deposit, the appellants are

permitted to withdraw their respective share of the award amount now

determined by this Court as per the apportionment fixed by the Tribunal