Madras High Court
Kanmani vs K.R.Hariharan on 17 February, 2021
1
,BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 17.02.2021
CORAM
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
C.M.A(MD)No.776 of 2016
1.Kanmani
2.Ragupathy
3.Minor Sinthiya
4.Minor Vikram
(Appellants 3 and 4 are
Represented by their
Mother and Guardian the
1st Appellant Kanmani) : Appellants/Claimants
Vs.
1.K.R.Hariharan
2.The Branch Manager,
Royal Sundaram Alliance Insurance Co., Ltd.,
No.46, Sundaram Towers,
Whites Road,
Royapettai,
Chennai. : Respondents/Respondents
(R1 set- exparte before the tribunal.
Hence, notice may be given up against
R1)
PRAYER:- Civil Miscellaneous Appeal has been filed under
Section 173 of the Motor Vehicles Act, 1988 against the award
passed in MCOP No.217 of 2012, dated 14.12.2015 by the Motor
Accident Claims Tribunal (III Additional District and Sessions
Court) Thanjavur at Pattukkottai.
https://www.mhc.tn.gov.in/judis/
2
For Appellants : Mr.S.Deenadhayalan
For 1st Respondent : Ex-parte
For 2nd Respondent : Mr.M.Jerin Mathew
JUDGMENT
This Civil Miscellaneous Appeal is preferred by the claimants
against the award passed in MCOP No.217 of 2012, dated
14.12.2015 by the Motor Accident Claims Tribunal (III Additional
District and Sessions Court), Thanjavur at Pattukkottai.
2.The brief facts of the case is that on 25.03.2012 at about
02.30 pm, the deceased Amaran was riding the motor cycle TN-01-
AD-6130 along with one Siva and his mother as pillion riders and
when they were proceeding near Kurichi Poovalur branch
Pannavayal, the Maruthi Car TN-55-V-6647 came in a rash and
negligent manner and hit against the two wheeler. In that process,
the rider of the motor cycle thrown away from the motor cycle and
sustained grievous injuries all over the body, while the pillion riders
sustained injuries. Immediately, they were taken to Pattukottai
Government Hospital and then, they were referred to Thanjavur
Medical College Hospital, where the Amaran died in-spite of
treatment. The legal heirs of the deceased Amaran filed a claim
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petition seeking compensation of Rs.20,00,000/- on the ground that
the driver of the offending vehicle was responsible for the accident.
3.The claimants have stated that the deceased was 22 years
at the time of accident and he was doing Mason work and thereby
he earning Rs.12,000/- per month. It is alleged that the said
Amaran died only due to the negligence on the part of the driver of
the offending vehicle.
4.In the counter filed by the 2nd Respondent Insurance
Company, they disputed the manner of accident and their liability
to pay compensation.
5.Before the tribunal, on the side of the claimants, 2
witnesses were examined and marked 8 documents. On the side of
the 2nd respondent Insurance Company, 1 witness was examined
and no document was marked.
6.The Tribunal, on consideration of oral and documentary
evidence adduced by the parties, came to the conclusion that both
the deceased as well as the the driver of the offending vehicle
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responsible for the accident and fixed the negligence at the ratio of
50:50 and awarded compensation of Rs.2,60,000/- together with
interest @ 7.5% p.a, to the 1st claimant alone and dismissed the
claim petition in respect of the claimants 2 to 4 holding that they
are not the dependants of the deceased Amaran.
7.Heard both sides and perused the materials available on
record.
8.The learned counsel appearing for the appellants/claimants
argued that the tribunal has erroneously fixed 50% contributory
negligence on the part of the deceased without any basis and the
tribunal awarded very meagre amount of compensation for the
death of the 1st appellant's son and the tribunal has not applied
proper multiplier for calculating the loss of income of the deceased
and that the tribunal has failed to appreciate the fact that the
dependants and claimants are 4 in number, hence, strict
interpretation with regard to beneficial legislation would adversely
affect the rights of the claimants and prays that the Civil
Miscellaneous Appeal has to be allowed. On the other hand, the
learned counsel appearing for the 2nd respondent Insurance
Company argued in support of the findings given by the tribunal.
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9.It is not in dispute that at the time of accident, the deceased
Amaran was doing Mason work and he was a bachelor. It is also not
in dispute that the deceased died at the age of 22 years. Since no
reliable document has been produced to prove the income of the
deceased, the tribunal has rightly fixed the monthly income of the
deceased at Rs.6,000/-. By applying multiplier '14' and after
deducting 50% from the salary of the deceased for his personal
expenses, the tribunal has awarded Rs.5,04,000/- towards loss of
income. Further, the tribunal has awarded Rs.10,000/- towards loss
of love and affection and Rs.6,000/- towards funeral expenses. In
total the tribunal has awarded Rs.5,20,000/- together with interest
at the rate of 7.5% p.a. As the deceased also contributed 50%
negligence, the tribunal has awarded Rs.2,60,000/- to the 1st
claimant alone, being the mother of the deceased and dismissed the
claim petition in respect of the claimants 2 to 4 as they are not the
dependants of the deceased.
10.In this case, the dispute is with regard to negligence. On
careful perusal of records, it reveals that the accident took place
due to the composite negligence on the part of the drivers of both
the vehicles. Even though, both the rider of the two wheeler and
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the driver of the offending vehicle responsible for the accident,
considering the facts and circumstances of this case, this court
fixed the negligence at 70% on the part of the driver of the
offending vehicle and 30% on the part of the deceased, who is the
rider of the two wheeler.
11.It is to be noted that the learned counsel appearing for the
2nd respondent Insurance Company has not disputed the quantum
award by the tribunal and he has challenged this appeal on the
basis of the negligence. Hence, this court fixed the negligence at
the ratio of 70% on the side of the driver of the offending vehicle
and 30% on the part of the deceased. Accordingly, the 2nd
respondent Insurance Company is liable to pay their share of
compensation at Rs. 3,64,000/- together with interest at the rate of
7.5% p.a from the date of petition till the date of realization.
12.In the result, this Civil Miscellaneous Appeal is partly
allowed. The negligence is fixed at 70% on the part of the driver of
the offending vehicle and 30% on the part of the deceased. The 2 nd
Respondent Insurance Company is directed to deposit their
apportionment of negligence amount fixed by this court before the
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tribunal together with interest at the rate of 7.5% p.a. from the
date of petition, till the date of deposit. On such deposit, the 1st
appellant/1st claimant is entitled to withdraw the entire amount
without filing any formal petition before the tribunal. The
appellants/claimants shall pay the additional court fee for the
enhanced amount. No costs. Consequently, connected
Miscellaneous Petition is closed.
Index:Yes/No 17.02.2021
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis/
T.KRISHNAVALLI,J
er
To,
1.The Motor Accident Claims Tribunal/
III Additional District and Sessions Court,
Thanjavur @ Pattukkottai.
2.The Record Keeper,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
C.M.A(MD)No.776 of 2016
17.02.2021
https://www.mhc.tn.gov.in/judis/
https://www.mhc.tn.gov.in/judis/
