Madras High Court

S.Rajeswari vs The Superintendent Of Police on 16 February, 2021

                                                                         C.M.A.No.4292 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 16.02.2021

                                                     CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                              C.M.A.No.4292 of 2019


                   1.S.Rajeswari
                   2.K.Sunder                                            .. Appellants

                                                         Vs.

                   1.The Superintendent of Police
                   Superintendent Office
                   Sathuvachari
                   Vellore-632 009
                   Vellore District.

                   2.The Collector of Vellore District
                   Sathuvachari, Vellore-632 009
                   Vellore District.                                     .. Respondents


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

                   Vehicles Act, 1988, against the judgment and decree dated 05.10.2015 made

                   in M.C.O.P.No.450 of 2011 on the file of Motor Accident Claims Tribunal, I

                   Additional District and Sessions Court, Vellore.



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https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.4292 of 2019

                                   For Appellants           : Mr.M.Sivakumar
                                                            for Mr.C.Prabakaran

                                   For Respondents         : Mr.S.Jaganathan
                                                          Government Advocate (CS)

                                                     JUDGMENT

The Civil Miscellaneous Appeal is filed challenging the portion of the

award fixing 50% contributory negligence on the part of the deceased as well

as for enhancement of compensation granted by the Tribunal in the award

dated 05.10.2015 made in M.C.O.P.No.450 of 2011 on the file of Motor

Accident Claims Tribunal, I Additional District and Sessions Court, Vellore.

2.The appellants are the claimants in M.C.O.P.No.450 of 2011 on the

file of Motor Accident Claims Tribunal, I Additional District and Sessions

Court, Vellore. They filed the said claim petition claiming a sum of

Rs.18,50,000/- as compensation for the death of their son viz., S.Tamilselvan,

who died in the accident that took place on 17.01.2011.

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

17.01.2011 at 4.30. p.m., while the deceased Tamilselvan was riding in his

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two wheeler along with his friend K.Venkatesan as a pillion rider at Velari

koot road, Timiri, Arcot taluk, Vellore District, on the extreme left side of the

road, the Inspector of Police, Timiri Police Station, who was employed under

the 1st respondent, drove the Police jeep in a rash and negligent manner,

dashed against the two wheeler driven by the deceased. Due to the said

impact, the said Tamilselvan fell down from the two wheeler and thus, the

accident has occurred. In the accident, the said Tamilselvan sustained fatal

injuries and died. Therefore, the appellants filed the above claim petition

claiming compensation against the respondents.

4.The 1st respondent, owner of the jeep filed counter statement denying

the averments made in the claim petition and stated that at the time of

accident, the deceased Tamilselvan rode the two wheeler along with one

Venkatesan as pillion rider in a rash and negligent manner with drunken

mood in the opposite direction. The Inspector of Police drove the Police jeep

slowly on the left side of the road and after noticing that the deceased was

riding the two wheeler in a drunken mood, slowed down his jeep to the

minimum speed to extreme left side of the road. Even then the deceased rode

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the two wheeler at high speed and dashed against the jeep and invited the

accident. So the accident has occurred only due to rash and negligent riding

by the deceased. The appellants are not entitled to any compensation for their

son's fault. The owner and insurer of the two wheeler driven by the deceased

were not made as parties to the claim petition. Therefore, the claim petition is

bad for non-joinder of necessary parties and hence, the 1 st respondent is not

liable to pay any compensation to the appellants. The 2nd respondent herein is

not connected with the alleged jeep belonging to the 1st respondent and he is

unnecessary party to the claim petition. In any event, the compensation

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

petition.

5.Before the Tribunal, the 2nd appellant, father of the deceased,

examined himself as P.W.1, one Venkatesan, pillion rider of the two wheeler

driven by the deceased, was examined as P.W.2 and 10 documents were

marked as Exs.P1 to P10. The respondents examined one Mr.Mathiyarasan,

Inspector of Police as R.W.1 and marked copy of the judgment in C.C.No.80

of 2011 on the file of the Judicial Magistrate's Court No.I, Walaja, as Ex.R1.

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6.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 jeep belonging to the 1st respondent and the deceased

Tamilselvan was also contributed to the accident, fixed 50 : 50 contributory

negligence on the part of the deceased as well as the driver of the jeep

belonging to the 1st respondent and directed the 1st respondent to pay a sum of

Rs.11,07,500/- after deducting 50% contributory negligence as compensation

to the appellants and dismissed the claim petition as against the 2 nd

respondent as he is no way responsible for the accident.

7.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.

8.The learned counsel appearing for the appellants contended that

F.I.R. was registered against the driver of the jeep belonging to the 1st

respondent. P.W.2, eye-witness to the accident has categorically deposed that

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the driver of the jeep is responsible for the accident. The Tribunal having held

so, erred in fixing 50% contributory negligence on the part of the deceased

merely on the arguments advanced by the learned counsel for the 1st

respondent. The learned counsel further contended that the Tribunal erred in

applying multiplier considering the age of the mother of the deceased. The

Tribunal ought to have applied multiplier '18' on the basis of the age 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.

9.The learned Government Advocate appearing for the respondents

made his submissions in support of the award passed by the Tribunal and

prayed for dismissal of the appeal.

10.Heard through video-conferencing the learned counsel appearing

for the appellants as well as the learned Government Advocate appearing for

the respondents and perused the entire materials available on record.

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11.From the materials on record, it is seen that the Tribunal considering

both oral and documentary evidence held that the accident has occurred only

due to rash and negligent driving by the driver of the jeep belonging to the 1 st

respondent and the appellants are entitled to compensation only from the 1st

respondent and dismissed the claim petition as against the 2nd respondent. The

appellant has come out with the present appeal contending that the Tribunal

having fixed entire negligence on the driver of the jeep, erroneously fixed

50% contributory negligence on the deceased after holding that the accident

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

belonging to the 1st respondent and 50% deduction from the compensation

arrived is unsustainable. The learned counsel further contended that the

Tribunal has taken age of the mother of the deceased for applying multiplier

and granted lesser amount as compensation towards loss of dependency.

12.From the award of the Tribunal, it is seen that the Tribunal fixed

negligence on the driver of the jeep belonging to the 1st respondent and

directed the 1st respondent to pay the compensation. In the conclusion

paragraph, the Tribunal while arriving at compensation, fixed notional

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income of the deceased at Rs.15,000/- per month, granted 50% enhancement

towards future prospects, applied multiplier '15' taking into age of the mother

of the deceased, deducted 50% towards personal expenses, arrived at a sum

of Rs.20,25,000/- (Rs.15,000/- + 7500 [Rs.15,000/- X 50%] X 12 X 15 X

50%) as compensation and awarded a sum of Rs.10,12,500/- as compensation

after deducting 50% towards contributory negligence.

13.From the award of the Tribunal, it is seen that the Tribunal has held

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

driver of the jeep belonging to the 1st respondent. Having held so, in the

operative portion of the award, the Tribunal has deducted 50% contributory

negligence from the total compensation arrived and awarded a sum of

Rs.10,12,500/- as total compensation towards loss of dependency. The

Tribunal without fixing any negligence on the deceased erroneously by non-

application of mind deducted 50% towards contributory negligence and

hence, the same is liable to be set aside and is hereby set aside. The appellants

are entitled to get the entire compensation awarded. The Tribunal applied

multiplier 15 taking into consideration the age of the mother of the deceased.

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Further, the Tribunal fixed notional income of the deceased at Rs.15,000/- per

month and granted 50% enhancement towards future prospects. The deceased

was aged 20 years at the time of accident as per Ex.P2/Post-mortem

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

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

Sethi), the age of the deceased is basis for applying multiplier and the

appellants are entitled to 40% enhancement towards future prospects. The

correct multiplier applicable for the age group of 21 years is '18'. In view of

the above, the compensation granted by the Tribunal towards loss of

dependency is modified to Rs.22,68,000/- (Rs.15,000/- + 6000 [Rs.15,000/-

X 40%] X 12 X 18 X 50%). The amounts awarded by the Tribunal towards

loss of love and affection to the appellants, loss of estate and funeral

expenses are meagre and hence, the same are hereby enhanced to Rs.80,000/-,

Rs.15,000/- and Rs.15,000/- respectively. A sum of Rs.25,000/- awarded by

the Tribunal towards loss of consortium is liable to be set aside and is hereby

set aside. A sum of Rs.5,000/- awarded by the Tribunal towards transportation

is just and reasonable and hence, the same is hereby confirmed.

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14.It is well settled that the Tribunal and the Courts have to award just

compensation. Though the claimants have claimed lesser compensation, the

Courts have power to grant just compensation more than the amount claimed

by the claimants. 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               10,12,500          22,68,000 Enhanced
                               dependency
                   2.          Loss of love             50,000             80,000 Enhanced
                               and affection
                   3.          Loss of estate            5,000             15,000 Enhanced
                   4.          Loss of                  25,000                   - Set aside
                               consortium
                   5.          Transportation            5,000              5,000 Confirmed
                   6.          Funeral                  10,000             15,000 Enhanced
                               expenses
                               Total                 11,07,500          23,83,000 Enhanced by
                                                                                  Rs.12,75,500/-

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

compensation awarded by the Tribunal at Rs.11,07,500/- is hereby enhanced

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to Rs.23,83,000/- 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. It is made clear

that the appellants are not entitled to any interest for the delay period on the

amount of Rs.12,75,500/- enhanced by this Court as per the order of this

Court dated 03.10.2019 made in C.M.P.No.9263 of 2019 in

C.M.A.SR.No.36070 of 2018. The 1st respondent is directed to deposit the

award amount now determined by this Court along with interest and costs,

less the amount if any, already deposited, within a period of six weeks from