Madras High Court
Banumathi vs Palanivel on 22 February, 2021
C.M.A.No.381 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.381 of 2021
1.Banumathi
2.Selvi
3.Manikandan .. Appellants
Vs.
1.Palanivel
2.The Reliance General Insurance Company Limited,
Reliance House,
Opp: Sasthiri Bhavan,
Nungampakkam,
Chennai – 600 034. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
01.10.2019 made in M.C.O.P.No.47 of 2019 on the file of the Motor
Accident Claims Tribunal, III Additional District Court, Kallakurichi,
Villupuram.
For Appellants : Mr.E.Duraivaiyapurai
for Mr.N.Manokaran
For R1 : No appearance
For R2 : Mr.E.Rajadurai
for M/s.M.B.Gopalan Associates
1/12
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C.M.A.No.381 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award dated
01.10.2019 made in M.C.O.P.No.47 of 2019 on the file of the Motor
Accident Claims Tribunal, III Additional District Court, Kallakurichi,
Villupuram.
2.The appellants are the claimants in M.C.O.P.No.47 of 2019 on the
file of the Motor Accident Claims Tribunal, III Additional District Court,
Kallakurichi, Villupuram. They filed the above said claim petition, claiming a
sum of Rs.50,00,000/- as compensation for the death of one Viswanathan,
who died in the accident that took place on 17.12.2018.
3.According to appellants on 17.12.2018, at about 11.10 A.M., while
the said Viswanathan was riding the TVS XL motorcycle bearing
Registration No.TN 31 AL 2823 along with one Punitha as pillion rider from
South to North on the extreme left side of the Chennai – Salem National
Highways towards Thenkeeranur and when he was about to turn the
motorcycle towards East side, the driver of the car bearing Registration
No.TN/38/TMP/2018/1378 belonging to the 1st respondent, who was driving
the car behind the deceased, came in a rash and negligent manner and dashed
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C.M.A.No.381 of 2021
against the motorcycle rode by the deceased and caused the accident. In the
accident, the said Viswanathan sustained fatal injuries and died in the
Hospital on 25.01.2019. Therefore, the appellants filed the above said claim
petition claiming a sum of Rs.50,00,000/- as compensation against the
respondents, being the owner and insurer of the car respectively.
4.The 1st respondent – owner of the car remained exparte before the
Tribunal.
5.The 2nd respondent-Insurance Company, insurer of the car filed
counter statement and denied all the averments made by the appellants. The
2nd respondent denied the manner of accident as alleged by the appellants.
According to the 2nd respondent, the deceased only rode his motorcycle in a
rash and negligent manner and crossed the road suddenly and invited the
accident, whereas the driver of the car was driving the car with great care and
attention. Hence, the accident has occurred only due to negligence on the part
of the deceased. The appellants have to prove that the car belonging to 1st
respondent was insured with the 2nd respondent at the time of accident and
also the driver of the car was possessing valid driving license. The owner and
insurer of the motorcycle rode by the deceased have to be impleaded as
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C.M.A.No.381 of 2021
necessary parties in the claim petition. The appellants have to prove that they
are the legal heirs of the deceased by producing valid documents. The 2 nd
respondent denied the age, avocation and income of the deceased. In any
event, the quantum of compensation claimed by the appellants is highly
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st appellant examined herself as P.W.1, one
Punitha @ Punithavalli, eyewitness to accident was examined as P.W.2 and
one Manikandan was examined as P.W.3 and 11 documents were marked as
Exs.P1 to P11. The 2nd respondent examined one Shanmugam, Assistant in
RTO, Kallakurichi as R.W.1 and 3 documents were marked as Exs.R1 to R3.
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 car belonging to 1st respondent, fixed 15% contributory
negligence on the part of the deceased for not wearing helmet at the time of
accident, awarded a sum of Rs.8,45,000/- as compensation and directed the
2nd respondent to pay a sum of Rs.7,18,250/- being 85% of the award amount
as compensation to the appellants at the first instance and recover the same
from the 1st respondent.
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C.M.A.No.381 of 2021
8.Challenging the portion of the award fixing 15% 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.
9.The learned counsel appearing for the appellants contended that the
deduction of 15% made from the total compensation as per the order in
C.M.A.(MD).Nos.887 & 988 of 2014 is not correct and the appellants are
entitled to entire award amount as compensation. At the time of accident the
deceased was aged 48 years, working as Mason and was earning a sum of
Rs.20,000/- per month. But the Tribunal fixed a meagre sum of Rs.7,000/- per
month as notional income of the deceased and awarded compensation
towards loss of dependency. The correct multiplier applicable is '13', but the
Tribunal erroneously applied multiplier '11' and awarded compensation. The
amounts awarded by the Tribunal towards loss of consortium to 1st appellant
and loss of love and affection to appellants 2 and 3 are meagre. The Tribunal
failed to award any amount towards loss of estate, transportation and prayed
for setting aside the portion of the award fixing 15% contributory negligence
on the part of the deceased and for enhancement of compensation.
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C.M.A.No.381 of 2021
10.Though notice has been served on the 1st respondent and his name is
printed in the cause list, there is no representation for him, either in person or
through counsel.
11.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the appellants have not produced any
material evidence to prove the avocation and income of the deceased. In the
absence of any material evidence with regard to avocation and income, a sum
of Rs.7,000/- per month fixed by the Tribunal as notional income of the
deceased is not meagre. The multiplier '11' applied by the Tribunal is proper.
The deceased, who was the rider of the motorcycle was not wearing helmet at
the time of accident. Hence, 15% contributory negligence fixed on the part of
the deceased is proper. The compensation awarded by the Tribunal is not
meagre and the appellants are not entitled to any amount towards loss of
estate and transportation. The appellants have not made out any case for
enhancement of compensation and prayed for dismissal of the appeal.
12.Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the 2nd respondent-Insurance Company and
perused the entire materials on record.
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C.M.A.No.381 of 2021
13.From the materials available on record it is seen that it is the case of
the 2nd respondent-Insurance Company that the deceased who was the rider of
the motorcycle was not wearing helmet at the time of accident. The 1st
appellant in her cross examination admitted that her husband, i.e., the
deceased, was not wearing helmet at the time of accident. Hence, the Tribunal
considering the evidence of P.W.1 in her cross examination, held that the
deceased was not wearing helmet at the time of accident and fixed 15%
contributory negligence on the part of the deceased following the judgment of
Madurai Bench of this Court in C.M.A.(MD).Nos.887 & 988 of 2014. The
reason given by the Tribunal for fixing 15% contributory negligence on the
part of the deceased is proper and hence, the same is not interfered with.
14.As far as quantum of compensation is concerned, it is the case of the
appellants that at the time of accident the deceased was aged 48 years,
working as Mason and was earning a sum of Rs.20,000/- per month. But they
failed to prove the said contention. In the absence of any material evidence
with regard to avocation and income, the Tribunal considering the year of
accident and nature of work done by the deceased, fixed a sum of Rs.7,000/-
per month as notional income of the deceased. The accident occurred in the
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C.M.A.No.381 of 2021
year 2018. The cost of living has increased enormously and salary of even
unskilled workers has increased substantially. Hence, a sum of Rs.14,000/-
per month is fixed as notional income of the deceased. The deceased was
aged 50 years as per Ex.P3/postmortem certificate and the Tribunal
erroneously applied multiplier '11'. The correct multiplier applicable as per
the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC
Supreme Court, [Sarla Verma & others Vs. Delhi Transport Corporation &
another], is '13'. The deceased was aged 50 years at the time of accident. The
Tribunal, following the judgment of the Hon'ble Apex Court reported in 2017
(2) TNMAC 609 (SC), [National Insurance Company Limited Vs. Pranay
Sethi and others], granted 25% enhancement towards future prospects and
the same is proper. There are three dependants of the deceased and the
Tribunal has rightly deducted 1/3rd towards personal expenses of the
deceased. Thus, the compensation awarded by the Tribunal towards loss of
dependency is modified to Rs.18,20,000/- {Rs.17,500/- [Rs.14,000/- +
Rs.3,500/- (25% of Rs.14,000/-)] X 12 X 13 X 2/3}. The amount awarded by
the Tribunal towards loss of consortium to 1st appellant and loss of love and
affection to appellants 2 and 3 are meagre and the same are enhanced to
Rs.40,000/- each. The Tribunal failed to award any amount towards loss of
estate and transportation. The appellants are entitled to a sum of Rs.15,000/-
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C.M.A.No.381 of 2021
and Rs.10,000/- towards loss of estate and transportation respectively. The
amount awarded by the Tribunal towards funeral expenses is just and
reasonable and hence, the same is hereby confirmed.
15.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. Description Amount Amount Award confirmed
No awarded by awarded by this or enhanced or
Tribunal Court granted
(Rs) (Rs)
1. Loss of dependency 7,70,000/- 18,20,000/- Enhanced
2. Funeral expenses 15,000/- 15,000/- Confirmed
3. Loss of love and 30,000/- 40,000/- Enhanced
affection to
appellants 2 & 3
4. Loss of consortium 30,000/- 40,000/- Enhanced
to 1st appellant
5. Loss of estate - 15,000/- Granted
6. Transportation - 10,000/- Granted
Total Rs.8,45,000/- Rs.19,40,000/- Enhanced by
85% of award Rs.7,18,250/- Rs.16,49,000/- Rs.9,30,750/-
amount (Rs.16,49,000/-
-
Rs.7,18,250/-)
16.In the result, this Civil Miscellaneous Appeal is allowed and the
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C.M.A.No.381 of 2021
total compensation awarded by the Tribunal at Rs.8,45,000/- is hereby
enhanced to Rs.19,40,000/- 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 85% of the award amount now
determined by this Court, i.e., Rs.16,49,000/- 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 to the credit of M.C.O.P.No.47
of 2019 on the file of the Motor Accident Claims Tribunal, III Additional
District Court, Kallakurichi, Villupuram, 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 award amount now determined by this
Court, as per the ratio of apportionment fixed by the Tribunal, along with
proportionate interest and costs, less the amount if any, already withdrawn by
making necessary applications before the Tribunal. The appellants are
directed to pay the necessary Court fee on the enhanced amount of
compensation. No costs.
22.02.2021
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Index : Yes / No
Internet : Yes / No
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C.M.A.No.381 of 2021
To
1.The III Additional District Judge,
Motor Accident Claims Tribunal,
Kallakurichi,
Villupuram.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
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C.M.A.No.381 of 2021
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C.M.A.No.381 of 2021
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