Madras High Court
V.Uma vs V.Vijayarangan on 8 February, 2021
C.M.A.No.1076 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A. No.1076 of 2020
1.V.Uma
W/o.C.Velmurugan
2.C.Velmurugan
S/o.Chandrakasan .. Appellants
Vs.
1.V.Vijayarangan
S/o.Veeraragavan
2.The Divisional Manager,
The New India Assurance Co.Ltd.,
DO No.30, JN Street, Puducherry – 1. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the order and decree dated 10.02.2020
made in M.C.O.P. No.2210 of 2015 on the file of Motor Accident Claims
Tribunal, Principal District Judge, Cuddalore.
1/9
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C.M.A.No.1076 of 2020
For Appellants : M/s.Ramya V.Rao
For R2 : Mr.J.Michael Visuvasam
JUDGMENT
(Order of the Court was made by SATHI KUMAR SUKUMARA KURUP,J.)
The Civil Miscellaneous Appeal is filed by the appellants seeking
enhancement of compensation granted by the Tribunal in the award dated
10.02.2020 made in M.C.O.P. No.2210 of 2015 on the file of Motor Accident
Claims Tribunal, Principal District Court, Cuddalore.
2.The appellants are claimants in M.C.O.P. No.2210 of 2015 on the file
of Motor Accident Claims Tribunal, Principal District Court, Cuddalore. The
appellants filed the said claim petition claiming a sum of Rs.50,00,000/- as
compensation for the death of their son viz., Vignesh, who died in the
accident that took place on 08.02.2015.
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C.M.A.No.1076 of 2020
3.Facts of the Case:-
According to the appellants, on 08.02.2015 at about 19.30 hours, the
deceased Vignesh travelled as a Pillion rider in the TVS Star City Motorcycle
bearing registration No.TN-01-Z-6075, which was driven its rider at a
moderate speed, keeping extreme left of OMR Road, from Mamallapuram to
Chennai, opposite to PBEL City Apartment. At that time, the 1st respondent's
Tourister Van bearing registration No.TN-19-D-0631 came from behind, at a
great speed, in a rash and negligent manner, without making horn, without
following the rules and regulations and dashed against the deceased
motorcycle and caused the accident. Due to the said accident, the deceased
thrown out of the motorcycle and sustained fatal injuries. Immediately he was
taken to Chettinad Hospital, Chennai where he was declared dead. The
accident occurred only due to rash and negligent driving by driver of the
Tourister Van belonging to the 1st respondent. A case was registered against
the driver of the 1st respondent's Tourister Van. Hence, they claimed a sum of
Rs.50,00,000/- as compensation.
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C.M.A.No.1076 of 2020
4.The 2nd respondent/Insurance Company filed statement of objection
and denied all the averments made by the appellants. As per F.I.R, three
persons are travelled in the motorcycle at the time of accident, place of
accident sketch clearly mentioned the accident place was center portion of the
tar road. As per police sketch clearly mentioned the 1st respondent's vehicle
driver was driven the vehicle with due care and diligence and caution and
followed the traffic rules and regulations at that time three persons had
travelled including the deceased, in rash and negligent manner and
unbalanced driving and not followed the traffic rules and regulations and
suddenly crossing the road and invited the accident. There were three persons
including the deceased travelled in the motorcycle at the time of accident and
it is sheer breach of policy conditions and also the provisions of M.V. Act.
Hence, claim petition is liable to be dismissed for non-joinder of necessary
parties.
5.The 1st respondent was called absent and set ex-parte before the
Tribunal.
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C.M.A.No.1076 of 2020
6.Before the Tribunal, the 1st appellant/mother of the deceased
examined herself as P.W.1, and examined one more witness as P.W.2 and
marked Ex.P1 to P12. The 2nd respondent examined one Jayalakshmi as
R.W.1 and marked Ex.R1.
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 Tourister Van belonging to the 1st respondent and fixed 20%
contributory negligence on the part of the deceased for travelling of 3 persons
in a motor cycle and awarded a sum of Rs.12,33,000/- as compensation and
directed the 2nd respondent Insurance Company to pay a sum of
Rs.12,33,000/- as compensation to the appellants at the first instance and
recover the same from the 1st respondent.
8.Challenging the portion of the award fixing 20% contributory
negligence on the part of the deceased and for enhancement of compensation,
the appellants have come out with the present appeal.
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C.M.A.No.1076 of 2020
9.M/s.Ramya V.Rao, learned counsel appearing for the appellants
contended that the deceased was aged 19 years at the time of accident and
was studying 2nd year B.Tech (Aeronautical Engineering) at Hindustan
University. The notional income fixed by the Tribunal is very meagre. The
Tribunal has not awarded any amount towards Transportation Expenses and
loss of Love and Affection. The amounts awarded by the Tribunal under
different heads are also meagre and hence prayed for enhancement of
compensation.
10.Per contra, Mr.J.Michael Visuvasam, learned counsel appearing for
the 2nd respondent/Insurance Company contended that the deceased was a
student and a non-earning member. The appellants have failed to prove that
the deceased would have got salary more than Rs.10,000/- per month. The
notional income fixed by the Tribunal is not meagre. The amounts awarded
by the Tribunal are just compensation and appellants have not made out any
case for setting aside the negligence fixed on the part of the deceased and for
enhancement of compensation and prayed for dismissal of the appeal.
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C.M.A.No.1076 of 2020
11.Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the 2nd respondent/Insurance Company and
perused the materials available on record.
12.From the evidence available on record, it is seen that the accident
occurred only due to rash and negligent driving by the driver of the 1 st
respondent's van. After having held so, the Tribunal erroneously fixed 20%
contributory negligence on the part of the deceased on the ground that there
are three persons travelled in a motorcycle in violation of statutory provision.
In a two wheeler only two persons can travel. If more than two persons travel
in violation of rules, this Court had held that they were made contributed
negligence for the accident. The Division Bench of this Court held that when
three persons travelled in a two wheeler, the rider of the two wheeler is
cramped so much and he has no full control over the bike and in certain cases
he is almost sitting on the petrol tank of the bike. Whether a plea of
contributory negligence is taken and proved or not, when more than two
persons traveled in a two wheeler, they are automatically liable for
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C.M.A.No.1076 of 2020
contributory negligence and 20% of contributory negligence is fixed.
Applying the said principle, admittedly, in this case, three persons including
the deceased had travelled and no doubt, 20% contributory negligence can be
attributed. However, since the deceased happened to be a pillion rider among
three persons travelled in the bike, this Court is of the considered view that
10% of the contributory negligence for the accident can be attributed against
the deceased. In view of the same, the 2nd respondent/Insurance Company is
liable to pay 90% of the award amount as compensation to the appellants. The
deceased Vignesh travelled in the motorcycle as a pillion rider only, hence
20% negligence fixed by the Tribunal on the part of the deceased is
excessive. Considering the materials available on record in its entirety, this
Court fixes 10% contributory negligence on the part of the deceased and 90%
contributory negligence on the part of the driver of the Tourister van
belonging to the 1st respondent.
13.As far as quantum of compensation is concerned, the appellants
have contended that the deceased was studying 2nd year B.Tech (Aeronautical
Engineering) at Hindustan University, at the time of accident. This Court is
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C.M.A.No.1076 of 2020
inclined to fix notional income of the deceased at Rs.15,000/- per month
instead of Rs.10,000/- per month fixed by the Tribunal. The deceased was
aged 19 years at the time of accident. The Tribunal has awarded 40%
enhancement towards future prospects which is proper. Since the deceased
was a Bachelor, aged 19 years at the time of accident, the Tribunal applied the
multiplier '18' and deducted 1/2 towards personal expenses of the deceased.
In view of the same, the amount awarded by the Tribunal towards loss of
dependency is enhanced to Rs.22,68,000/- [(Rs.15,000/- + 6,000 (Rs.15,000/
x 40%) x 12 x 18 x 1/2)]. The Tribunal has not awarded any amount towards
loss of love & affection and Transportation charges. The appellants who have
lost their son, at young age, are entitled to a sum of Rs.40,000/- each towards
loss of love & affection and Rs.10,000/- is granted towards Transportation
charges respectively. The Tribunal has awarded a sum of Rs.30,000/- towards
conventional heads like loss of Estate and Funeral Expenses and the same is
confirmed by this Court. Thus, the compensation awarded by the Tribunal is
modified as follows:
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C.M.A.No.1076 of 2020
S.No Description Amount Amount awarded by Award
awarded by this Court confirmed or
Tribunal (Rs) enhanced or
(Rs) granted
1. Loss of 15,12,000 22,68,000 Enhanced
dependency
2. Loss of love & - 80,000 Granted
affection
3. Loss of Estate 30,000 30,000 Confirmed
and Funeral
expenses
4. Transportation - 10,000 Granted
charges
Total Award Rs.15,42,000/- Rs.23,88,000/-
80% of the 90% of the award
award amount amount comes to
comes to Rs.21,49,200/- payable
Rs.12,33,600/- by Insurance Company
(Rounded off to and 10% of the award
Rs.12,33,000/-) amount comes to
payable by Rs.23,880/- towards
Insurance contributory negligence
Company and
10% of the
award amount
comes to
Rs.12,33,000/-
towards
contributory
negligence
9.In the result, this Civil Miscellaneous Appeal is partly allowed and the
compensation awarded by the Tribunal at Rs.12,33,000/- is hereby enhanced
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C.M.A.No.1076 of 2020
to Rs.21,49,200/- together with interest at the rate of 8% 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 2 nd
respondent/Insurance Company is directed to deposit the enhanced 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 of
receipt of a copy of this judgment at the first instance and recover the same
from the 1st respondent. On such deposit, the appellants are permitted to
withdraw their respective share of the enhanced award amount on the basis of
apportionment fixed by the Tribunal along with proportionate interest and
costs, less the amount if any, already withdrawn by filing necessary
applications before the Tribunal. No costs.
(R.P.S.J.) (S.S.K.J.)
gbi
01.02.2021
Index : Yes / No
Internet : Yes/ No
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1076 of 2020
R.SUBBIAH, J.,
AND
SATHI KUMAR SUKUMARA KURUP, J.,
gbi
To
1.The Principal District Judge,
The Motor Accident Claims Tribunal,
Cuddalore.
2.The Section Officer,
V.R.Section,
High Court, Chennai.
C.M.A. No. 1076 of 2020
08.02.2021
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