Madras High Court

Suseela vs R.P.Sekar on 22 February, 2021

                                                                             C.M.A. No.3014 of 2019
                                                                                                  and
                                                                        Cross Objection No.45 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 22.02.2021

                                                     CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                               C.M.A. No.3014 of 2019
                                          and Cross Objection No.45 of 2019

                     C.M.A. No.3014 of 2019

                     1.Suseela
                     2.Ranganathan                                            .. Appellants

                                                        Vs.

                     1.R.P.Sekar

                     2.The Oriental Insurance Co. Ltd.,
                       146, 1st Floor, Kumar Complex, West Car Street,
                       Tiruchengode Town and Taluk, Namakkal District.
                       Branch Office: 1st Floor,
                       Ponnusamy Gounder Complex,
                       Tiruchengode Road, Sankari 637 301.                    .. Respondents

Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of

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

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

15.04.2019, made in M.C.O.P. No.36 of 2016, on the file of the Sub

Court, (Motor Accident Claims Tribunal), Sankari.

For Appellants : Mr.T.S.Arthanareeswaran for M/s.C.Paraneedharan

For Respondents : Mr.J.Chandran (For R2)

Cross Objection No.45 of 2019

The Oriental Insurance Co. Ltd., 146, 1st Floor, Kumar Complex, West Car Street, Tiruchengode Town and Taluk, Namakkal District. Branch Office: 1st Floor, Ponnusamy Gounder Complex, Tiruchengode Road, Sankari 637 301. .. Cross Objector Vs.

                     1.Suseela
                     2.Ranganathan
                     3.R.P.Sekar                                               .. Respondents

Prayer: This Cross Objection is filed under Order XLI Rule 22 of C.P.C

against the judgment and decree dated 15.04.2019, made in M.C.O.P.

No.36 of 2016, on the file of the Sub Court, (Motor Accident Claims

Tribunal), Sankari.

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

For Cross Objector : Mr.J.Chandran

For R1 & R2 : Mr.T.S.Arthanareeswaran for M/s.C.Paraneedharan COMMON JUDGMENT

This Civil Miscellaneous Appeal has been filed by the

appellants/claimants challenging the negligence fixed and for enhancement

of the compensation granted by the Tribunal in the award dated

15.04.2019, made in M.C.O.P. No.36 of 2016, on the file of the Sub

Court, (Motor Accident Claims Tribunal), Sankari.

Cross Objection No.45 of 2019 has been filed by the 2nd respondent-

Insurance Company to set aside the award dated 15.04.2019, made in

M.C.O.P. No.36 of 2016, on the file of the Sub Court, (Motor Accident

Claims Tribunal), Sankari.

2.The appellants/claimants filed M.C.O.P. No.36 of 2016, on the file

of the Sub Court, (Motor Accident Claims Tribunal), Sankari, claiming a

sum of Rs.25,00,000/- as compensation for the death of one Manikandan

who died in the accident that took place on 31.10.2015.

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

3.According to the appellants, on the date of accident, while the

deceased Manikandan was riding a TVS 50 Motorcycle bearing

Registration No.TN-28-W-9752 from East-West in Namakkal to

Tiruchengode Road, near Unjanai, carefully on the left side of the road, the

driver of a HGV Goods vehicle bearing Registration No.KA-01-9789

belonging to the 1st respondent negligently parked the vehicle on road

without any signal and hit against the Motorcycle rode by the deceased

and caused the accident. In the accident, the deceased Manikandan

succumbed to fatal injuries. Hence, the appellants filed the said claim

petition claiming compensation against the respondents as owner and

insurer of the offending vehicle respectively.

4.The 1st respondent remained exparte before the Tribunal.

5.The 2nd respondent-Insurance Company filed counter statement

and denied all the averments made by the appellants in the claim petition.

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

According to the 2nd respondent, the accident occurred only due to rash

and negligent riding of Motorcycle by the deceased Manikandan who rode

the vehicle without following the traffic rules and regulations and hit

against the parked Goods Vehicle belonging to the 1st respondent, fell

down and sustained injuries. A false complaint was given by the father of

the deceased before the Trichencode Rural Police on 01.11.2015 and

without proper enquiry, the Police registered a false case against the driver

of the Goods Vehicle. The appellants colluded with the 1st respondent and

filed the present claim petition. In any event, the deceased rode the

Motorcycle without wearing helmet and without possessing valid driving

license. For violation of policy conditions, the 2nd respondent is not liable

to pay any compensation to the appellants. The appellants have to prove

the age, avocation and income of the deceased to claim compensation and

prayed for dismissal of the claim petition.

6.Before the Tribunal, the 1st appellant examined herself as P.W.1,

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

examined eyewitness as P.W.2, employer of deceased as P.W.3 and

marked 11 documents as Exs.P1 to P11. The respondents did not examine

any witness, but marked ration card of the deceased as Ex.R1.

7.The Tribunal considering the pleadings, oral and documentary

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

driver of the Goods Vehicle and fixed 90% negligence on the driver of the

1st respondent vehicle and 10% contributory negligence on the part of the

deceased for not possessing valid driving license to ply the vehicle at the

time of accident and awarded a sum of Rs.31,65,000/- as compensation.

The Tribunal directed the 2nd respondent-Insurance Company to pay a sum

of Rs.28,50,000/- being 90% of the award amount, as compensation to the

appellants.

8.Challenging the portion of the award fixing 10% contributory

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

negligence on the part of the deceased as well as not being satisfied with

the amounts awarded by the Tribunal in the award dated 15.04.2019, made

in M.C.O.P. No.36 of 2016, the appellants have come out with the present

appeal.

9.To set aside the said award of the Tribunal, the 2nd respondent-

Insurance Company has filed Cross-Objection No.45 of 2019.

10.The learned counsel appearing for the appellants contended that

the Tribunal having rightly held that the accident occurred only due to rash

and negligent driving by driver of the Goods Vehicle belonging to the 1st

respondent, erred in fixing 10% contributory negligence on the part of the

deceased on the ground that the deceased did not possess driving license at

the time of accident. The learned counsel appearing for the appellants

further contended that at the time of accident, the deceased was aged 21

years, working as a Painter and was earning a sum of Rs.20,000/- per

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

month. The appellants lost their son who was the sole bread winner of the

family. The compensation granted by the Tribunal under different heads are

meagre and prayed for enhancement of compensation and for setting aside

the negligence fixed on the deceased.

11.Per contra, the learned counsel appearing for the 2nd respondent-

Insurance Company/Cross Objector contended that the accident occurred

only due to the negligent riding of Motorcycle by the deceased, who rode

the vehicle without wearing helmet and without possessing valid driving

license and dashed on the 1st respondent's parked vehicle. The Tribunal

ought to have fixed 50% contributory negligence on the part of the

deceased, instead of fixing 10%. The Tribunal without considering the

admission of P.W.3, co-worker of the deceased that there is no proof of

Painting job, erroneously fixed a sum of Rs.800/- per day and Rs.20,000/-

per month as notional income of the deceased. The total compensation

awarded by the Tribunal for the deceased person who was a bachelor,

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

aged 21 years is excessive and prayed for dismissal of the appeal and

setting aside the award of the Tribunal.

12.Heard the learned counsel appearing for the appellants through

video conference as well as the 2nd respondent and perused the materials

available on record.

13.In the present case, the 2nd respondent-Insurance Company has not

let in official from the Regional Transport Office to prove that the deceased

did not possess driving license at the time of accident. The Tribunal, in the

absence of any evidence in support of the case of the 2nd respondent,

erroneously held that the deceased did not possess valid driving license at the

time of accident and fixed contributory negligence on the part of the

deceased. In any event, in the judgment of the Hon'ble Apex Court reported

in 2018 (1) TN MAC 34 (SC) [Dinesh Kumar, J. @ Dinesh, J. Vs.

National Insurance Co. Ltd. and others], it has been held that mere

failure to produce driving license is not sufficient to draw adverse inference

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

in respect of contributory negligence and non-production of driving license

by the claimant is of no consequence and set aside the contributory

negligence fixed. The relevant paragraphs of the said judgment reads as

follows:

“7.Both the tribunal, and in appeal in the High Court, have found fault with the appellant for not having produced his driving licence. The tribunal noted that the appellant had admitted in the course of his cross-examination that the road where the accident took place was a two way road and that on each side, three vehicles could pass at a time. A suggestion was put to the appellant that while trying to overtake another vehicle, he had approached the offending lorry from the right side as a result of which the accident took place. The appellant denied the suggestion. The award of the tribunal indicates that absolutely no evidence was produced by the insurer to support the plea that there was contributory negligence on the part of the appellant.

8.Insofar as the judgment of the High Court is concerned, the Division Bench has placed a considerable degree of importance on the fact that there was no visible damage to the lorry but that it was the motor cycle which had suffered damage and that there was no eye-witness. We are in agreement with the submission which has been urged on behalf of the appellant that plea of contributory negligence was accepted purely on the basis

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

of conjecture and without any evidence. Once the finding that there was contributory negligence on 1 (2008) 12 SCC 436 the part of the appellant is held to be without any basis, the second aspect which weighed both with the tribunal and the High Court, that the appellant had not produced the driving licence, would be of no relevance. This aspect has been considered in a judgment of this Court in Sudhir Kumar (supra) where it was held as follows :

“9.If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence…

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

10. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.”

The ratio in the said judgment is squarely applicable to the facts of the

present case in respect of deceased not possessing driving license and the

10% contributory negligence fixed on the deceased is liable to be set aside

and is hereby set aside. The appellants are entitled to entire compensation

awarded by the Tribunal.

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

who are the parents of the deceased claimed that the deceased was aged 21

years, working as a Painter and was earning a sum of Rs.20,000/- per month,

at the time of accident. They failed to prove the same. In the absence of any

material evidence with regard to avocation and income of the deceased, the

Tribunal erroneously fixed the notional income of the deceased as

Rs.20,000/- per month, as claimed by the appellants. Considering the entire

materials, the monthly income fixed by the Tribunal is reduced and fixed at

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

Rs.15,000/-. The Tribunal considering the age of the deceased, rightly

granted 40% enhancement towards future prospects and applied multiplier

'18' and deducted ½ towards personal expenses of the deceased, as he was a

bachelor at the time of accident. Hence, by reducing the monthly income to

Rs.15,000/-, the amounts granted by the Tribunal towards future prospects is

modified as Rs.22,68,000/- {[Rs.15,000/- + Rs.6,000/- (40% of

Rs.15,000/-)] x 12 x 18 x ½}. The Tribunal has granted a sum of

Rs.1,00,000/- towards loss of love and affection to the appellants. The same

is excessive and hence, reduced to Rs.40,000/- each. The amounts awarded

by the Tribunal under 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 awarded Amount Award by Tribunal awarded by confirmed or (Rs) this Court (Rs) enhanced or granted

1. Future prospects 30,25,000/- 22,68,000/- Reduced

2. Funeral expenses 15,000/- 15,000/- Confirmed

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

3. Loss of estate 15,000/- 15,000/- Confirmed

4. Loss of love and 1,00,000/- 80,000/- Reduced affection

5. Transportation charges 10,000/- 10,000/- Confirmed Total 31,65,000/- 23,88,000/- Reduced by Rs.4,62,000/-

                                   90% of the award            28,48,500/-             -
                                   amount                   rounded off to                 (28,50,000 –
                                                               28,50,000/-                  23,88,000)

15.In the result, both the appeal and Cross Objection are partly allowed

and the amount awarded by the Tribunal at Rs.28,50,000/- is modified to

Rs.23,88,000/-, together with interest at the rate of 7.5% per annum from

the date of petition till the date of deposit. The 2nd 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 this judgment, to the credit of M.C.O.P. On

such deposit, the appellants are permitted to withdraw their share of the

award amount, now determined by this Court, along with proportionate

interest and costs, as per the ratio of apportionment fixed by the Tribunal,

after adjusting the amount, if any, already withdrawn, by filing necessary

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3014 of 2019 and Cross Objection No.45 of 2019

applications before the Tribunal. No costs.