Madras High Court

Dhavamani vs Karthikeyan on 10 February, 2021

                                                              C.M.A.Nos.4393 of 2019 and 154 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 10.02.2021

                                                      CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                        C.M.A.Nos.4393 of 2019 and 154 of 2021
                                             and C.M.P.No.1043 of 2021

                   C.M.A.No.4393 of 2019

                   Dhavamani                                                    .. Appellant


                                                        Vs.

                   1.Karthikeyan
                   (R1 remained exparte before the Tribunal
                   and hence, notice to R1 is dispensed with)

                   2.TATA AIG General Insurance Co. Ltd.
                   3rd floor, Jaya enclave, 1057
                   Avinasi salai, Coimbatore.

                   3.Yoganandhini

                   4.TATA AIG General Insurance Co. Ltd.
                   3rd floor, Jaya enclave, 1057
                   Avinasi salai, Coimbatore.

                   5.Kaliyannan                                                 .. Respondents

(R3 to R5 remained exparte before the Tribunal and hence, notice to R3 to R5 is dispensed with)

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.4393 of 2019 and 154 of 2021

C.M.A.No.154 of 2021

1.TATA AIG General Insurance Co. Ltd.

3rd floor, Jaya enclave, 1057 Avinasi salai, Coimbatore.

2.TATA AIG General Insurance Co. Ltd.

                   3rd floor, Jaya enclave, 1057
                   Avinasi salai, Coimbatore.                                  .. Appellants

                                                       Vs.

                   1.Dhavamani
                   2.Karthikeyan
                   3.Yoganandhini
                   4.Kaliannan                                               .. Respondents

Common Prayer: These Civil Miscellaneous Appeals are filed under Section

173 of Motor Vehicles Act, 1988, against the judgment and decree dated

19.06.2017 made in M.C.O.P.No.498 of 2012 on the file of the Motor

Accidents Claims Tribunal, Sub-Court, Sangagiri.



                                       In C.M.A.No.4393 of 2019


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

                                       For R4          : Mr.K.Vinod






https://www.mhc.tn.gov.in/judis/
                                                              C.M.A.Nos.4393 of 2019 and 154 of 2021

                                         In C.M.A.No.154 of 2021

                                         For Appellant     : Mr.K.Vinod

                                         For R1            : Mr.T.S.Arthanareeswaran
                                                           for Mr.C.Paraneedharan (caveator)

                                           COMMON JUDGMENT

C.M.A.No.4393 of 2019 is filed by the claimant for enhancement of

compensation granted by the Tribunal in the award dated 19.06.2017 made in

M.C.O.P.No.498 of 2012 on the file of the Motor Accidents Claims Tribunal,

Sub-Court, Sangagiri.

C.M.A.No.154 of 2021 is filed by the Insurance Company to set aside

the award dated 19.06.2017 made in M.C.O.P.No.498 of 2012 on the file of

the Motor Accidents Claims Tribunal, Sub-Court, Sangagiri.

2.Both the appeals arise out of the same accident and same award and

hence, they are disposed of by this common judgment. Parties in these

appeals are referred to by their respective ranks in the claim petition for the

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sake of convenience.

3.The claimant filed M.C.O.P.No.498 of 2012 on the file of the Motor

Accidents Claims Tribunal, Sub-Court, Sangagiri, claiming a sum of

Rs.10,00,000/- as compensation for the death of her son viz., Sathishkumar,

who died in the accident that took place on 11.03.2012.

4.According to the claimant, on the date of accident i.e., on 11.03.2012

at about 4.00 p.m., while the deceased Sathishkumar was riding in his Hero

Honda Passion Pro motorcycle bearing Registration No.TN-34-M-2265 near

Malarkkudai, Sellamariamman koil opposite, Appurpalayam Road, the rider

of the Hero Honda Splendor motorcycle bearing Registration No.TN-34-M-

5089 rode the same in a rash and negligent manner, hit against the motorcycle

of the deceased and caused the accident. In the accident, the said

Sathishkumar sustained fatal injuries and died on the spot. Therefore, the

claimant has filed the above claim petition claiming compensation as against

the respondents 1 and 2, owner and insurer of the Hero Honda Passion Pro

motorcycle bearing Registration No.TN-34-M-2265 and the respondents 3

and 4, owner and insurer of the Hero Honda Splendor motorcycle bearing

Registration No.TN-34-M-5089 respectively. The 5th respondent is the father

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of the deceased.

5.The 1st respondent, owner of the Hero Honda Passion Pro motorcycle

bearing Registration No.TN-34-M-2265, the respondents 3 and 4, owner and

insurer of the Hero Honda Splendor motorcycle bearing Registration No.TN-

34-M-5089 respectively and the 5th respondent, father of the deceased,

remained exparte before the Tribunal.

6.The 2nd respondent/Insurance Company insurer of the Hero Honda

Splendor motorcycle bearing Registration No.TN-34-M-5089 filed counter

statement denying the averments made by the claimant and stated that the

accident has occurred only due to rash and negligent riding of the Hero

Honda Passion Pro motorcycle bearing Registration No.TN-34-M-2265 by

the deceased. F.I.R. was registered against the deceased, he was the tort-

feasor and hence, the tort-feasor himself cannot maintain the claim petition

under common law. The deceased did not possess valid driving license to ride

the motorcycle at the time of accident. Therefore, the 2nd

respondent/Insurance Company is not liable to pay any compensation to the

claimant. The 2nd respondent/Insurance Company has also denied the age,

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avocation and income of the deceased. In any event, the compensation

claimed by the claimant is excessive and prayed for dismissal of the claim

petition.

7.Before the Tribunal, the claimant, mother of the deceased examined

herself as P.W.1, one Selvaraj, eye-witness to the accident, was examined as

P.W.2, one Saravanan, co-worker of the deceased was examined as P.W.3 and

nine documents were marked as Exs.P1 to P9. The 2nd respondent/Insurance

Company did not let in any oral and documentary evidence.

8.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident has occurred due to rash and negligent riding

by the rider of the Hero Honda Splendor motorcycle bearing Registration

No.TN-34-M-5089 belonging to the 3rd respondent and directed the 4th

respondent/Insurance Company being insurer of the said motorcycle to pay a

sum of Rs.16,37,000/- as compensation to the claimant.

9.To set aside the said award dated 19.06.2017 made in

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M.C.O.P.No.498 of 2012, the respondents 2 and 4/Insurance Company have

come out with C.M.A.No.154 of 2021. Not being satisfied with the amounts

awarded by the Tribunal, the claimant has come out with C.M.A.No.4393 of

2019 seeking enhancement of compensation.

10.The learned counsel appearing for the claimant contended that the

accident occurred only due to rider of the motorcycle belonging to the 3 rd

respondent, who is wife of the rider of the motorcycle and taking advantage

of the injuries caused to the deceased, the rider of the motorcycle lodged false

complaint against the deceased. The 4th respondent has not proved that the

accident occurred only due to negligence of the deceased. The claimant

examined the eye-witness as P.W.2 and proved that the accident occurred only

due to negligent riding by the rider of the motorcycle belonging to the 3rd

respondent. The claimant examined co-worker of the deceased as P.W.3 and

proved that the deceased was earning a sum of Rs.10,000/- per month by

doing painting work at the time of accident. The Tribunal erroneously fixed a

meagre amount of Rs.7,000/- per month as notional income of the deceased.

The total compensation granted by the Tribunal is meagre and prayed for

dismissal of the appeal filed by the Insurance Company and for enhancement

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of compensation.

11.The learned counsel appearing for the respondents 2 and 4

contended that the accident occurred only due to rash and negligent riding by

the deceased. F.I.R. was registered against the deceased. At the time of

accident, there was a pillion rider in the motorcycle driven by the deceased

and the said pillion rider or the alleged eye-witness P.W.2 have not lodged

any complaint against the rider of the offending vehicle. P.W.2 is the stock

witness. The Tribunal merely relying on evidence of P.W.2, erroneously fixed

negligence on the rider of the Hero Honda Splendor motorcycle bearing

Registration No.TN-34-M-5089 belonging to the 3rd respondent. The Tribunal

ought to have drawn adverse inference for not examining the pillion rider. In

the claim petition, the claimant has claimed that the deceased was a painter

and was earning a sum of Rs.5,000/- per month at the time of accident. The

Tribunal erroneously fixed a sum of Rs.7,000/- and granted 50%

enhancement towards future prospects. The deceased was a bachelor at the

time of accident. The Tribunal erred in deducting 1/3rd instead of 50%

towards personal expenses. Further, the amount granted by the Tribunal for

loss of love and affection is excessive and prayed for setting aside the award

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of the Tribunal and for dismissal of the appeal filed by the claimant.

12.Heard through “Video-Conferencing” the learned counsel appearing

for the claimant as well as the learned counsel appearing for the respondents

2 and 4 and perused the entire materials on record.

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

claimant that while her son was riding the Hero Honda Passion Pro

motorcycle bearing Registration No.TN-34-M-2265 belonging to the 1st

respondent, the rider of the Hero Honda Splendor motorcycle bearing

Registration No.TN-34-M-5089 belonging to the 3rd respondent rode the

same in a rash and negligent manner, dashed against the motorcycle driven by

the deceased Sathishkumar and caused the accident. In the accident, the said

Sathishkumar died and the claimant filed the claim petition claiming

compensation for her son's death. To substantiate her case, the claimant

examined herself as P.W.1 and one Selvaraj, eye-witness to the accident was

examined as P.W.2. She marked F.I.R., which was registered against the

deceased as Ex.P1. On the other hand, it is the case of the respondents 2 and

4 that the accident occurred only due to rash and negligent riding by the

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deceased. While the deceased Sathishkumar was overtaking a car, came and

dashed against the motorcycle rode by the husband of the 3 rd respondent. The

respondents 2 and 4 have not let in any evidence to substantiate their case.

F.I.R. was registered against the deceased based on the statement given by the

rider of the motorcycle viz., Thangavel, the husband of the 3rd respondent.

The Tribunal took note of the contents of the F.I.R., wherein it has been stated

that while the rider of the motorcycle belonging to the 3rd respondent was

riding the motorcycle with water cane, the accident occurred. P.W.2, who is

an eye-witness confirmed the same and deposed that the rider of the

motorcycle belonging to the 3rd respondent lost his control and dashed on the

motorcycle driven by the deceased. The rider of the motorcycle belonging to

the 3rd respondent did not appear before the Tribunal to deny the evidence of

P.W.2. The Tribunal considering the evidence of P.W.2, pleadings, documents

marked and in the absence of any contra evidence to the evidence of P.W.2 let

in by the respondents 2 and 4, held that the accident occurred only due to rash

and negligent riding by the rider of the motorcycle belonging to the 3rd

respondent and directed the 4th respondent, insurer of the said motorcycle to

pay compensation to the claimant. There is no error in the said finding of the

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Tribunal warranting interference by this Court.

14.As far as quantum of compensation is concerned, in the claim

petition, the claimant has stated that at the time of accident, the deceased was

aged 22 years, he was a painter and was earning a sum of Rs.5,000/- per

month. P.W.3, co-worker of the deceased in his evidence deposed that he was

working with the deceased and used to earn a sum of Rs.10,000/- per month.

The claimant failed to prove her case that the deceased was earning

Rs.10,000/- per month at the time of accident. In the absence of any material

evidence with regard to income of the deceased, the Tribunal fixed a sum of

Rs.7,000/- per month as notional income of the deceased. The accident is of

the year 2012 and the notional income fixed by the Tribunal is not excessive.

The claimant herself claimed that the deceased was earning only a sum of

Rs.5,000/- per month. The Tribunal considering the evidence of P.W.3 and

averments made in the claim petition, fixed a sum of Rs.7,000/- per month as

notional income of the deceased. In view of the same, the notional income

fixed by the Tribunal is not interfered with. The deceased was aged 22 years

at the time of accident. The Tribunal granted 50% enhancement towards

future prospects. As per the judgment of the Hon'ble Apex Court reported in

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2017(2)TNMAC 609 (SC) (National Insurance Company v. Pranay

Sethi), the appellants are entitled to only 40% enhancement towards future

prospects. The deceased was a bachelor at the time of accident. The Tribunal

erred in deducting 1/3rd instead of 50% towards personal expenses. By

granting 40% enhancement towards future prospects and deducting 50%

towards personal expenses, the compensation awarded by the Tribunal

towards loss of dependency is modified to Rs.10,58,400/- (Rs.7,000/- + 2800

[Rs.7,000/- X 40%] X 12 X 18 X 1/2). The claimant is the mother and 5 th

respondent is the father of the deceased. The 5th respondent did not appear

before the Tribunal, failed to prove that he is one of the legal heirs of the

deceased and hence, he was set exparte before the Tribunal. The Tribunal

awarded a sum of Rs.1,00,000/- towards loss of love and affection to the

parents, which is excessive and hence, the same is hereby reduced to

Rs.80,000/-. A sum of Rs.25,000/- awarded by the Tribunal towards funeral

expenses is also excessive and hence, the same is hereby reduced to

Rs.15,000/-. The Tribunal has not awarded any compensation towards loss of

estate and hence, a sum of Rs.15,000/- is awarded towards loss of estate.

Thus, the compensation awarded by the Tribunal is modified as follows:





https://www.mhc.tn.gov.in/judis/
                                                                  C.M.A.Nos.4393 of 2019 and 154 of 2021




                    S.No           Description    Amount            Amount           Award
                                                 awarded by       awarded by      confirmed or
                                                  Tribunal         this Court     enhanced or
                                                    (Rs)              (Rs)          granted
                   1.         Loss of              15,12,000         10,58,400 Reduced
                              dependency
                   2.         Loss of love           1,00,000           80,000 Reduced
                              and affection
                   3.         Funeral                 25,000            15,000 Reduced
                              expenses
                   4.         Loss of estate                  -         15,000 Granted
                              Total                16,37,000         11,68,400 Reduced by
                                                                               Rs.4,68,600/-

15.In the result, C.M.A.No.4393 of 2019 filed by the claimant is

dismissed and C.M.A.No.154 of 2021 filed by the respondents 2 and

4/Insurance Company is partly allowed and the compensation of

Rs.16,37,000/- awarded by the Tribunal is hereby reduced to Rs.11,68,400/-

together with interest at the rate of 7.5% per annum from the date of petition

till the date of deposit. The 4th respondent/Insurance Company is directed to

deposit the award amount now determined by this Court along with interest

and costs within a period of six weeks from the date of receipt of a copy of

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this judgment. On such deposit, the claimant is permitted to withdraw the

entire award amount now determined by this Court along with interest and

costs, after adjusting the amount if any, already withdrawn. The 4th