Madras High Court
Rajendran vs Baskaran on 21 January, 2021
C.M.A.No.5 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.5 of 2021
1.Rajendran
2.Sakthivel
3.Keerthiga .. Appellants
Vs.
1.Baskaran
2.Rekha
3.The Branch Manager,
The Oriental Insurance Company Limited,
Office at 1st Floor, Gopal Rao Library Building,
Town Hall Road,
Kumbakonam. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
22.10.2019 made in M.C.O.P.No.137 of 2016 on the file of the Motor
Accident Claims Tribunal, District Court, Karaikal.
For Appellant : Mr.K.Varadhakamaraj
For R3 : Mr.J.Chandran
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C.M.A.No.5 of 2021
JUDGMENT
The matter is heard through “Video Conferencing”.
2.This Civil Miscellaneous Appeal has been filed against the award
dated 22.10.2019 made in M.C.O.P.No.137 of 2016 on the file of the Motor
Accident Claims Tribunal, District Court, Karaikal.
3.The appellants are the claimants in M.C.O.P.No.137 of 2016 on the
file of the Motor Accident Claims Tribunal, District Court, Karaikal. They
filed the above said claim petition, claiming a sum of Rs.25,00,000/- as
compensation for the death of one Vijayakumari, who died in the accident
that took place on 04.04.2016.
4.According to the appellants, on 04.04.2016 at about 09.10 A.M.,
while the deceased Vijayakumari was travelling as a pillion rider in the TVS
Scooty Zest motorcycle bearing Registration No.PY 02 P 7414 rode by her
son Sakthivelu at Bharathiar Main Road, Varichikudi opposite to
Drobathaiamman Koil Street from North to South on the extreme left side of
the road, the 1st respondent who was riding the motorcycle bearing
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C.M.A.No.5 of 2021
Registration No.TN 82 B 2035 on the same direction rash and negligently,
overtook the motorcycle in which the deceased was travelling as pillion rider
and without making any signal by hand or illuminating the signal / indicator
light, suddenly turned to left side due to which the 1 st respondent's
motorcycle dashed the motorcycle in which the deceased was travelling and
caused the accident. Due to the said impact, the said Vijayakumari fell down
from the motorcycle and sustained serious injuries. Immediately after the
accident, the said Vijayakumari was taken to General Hospital, Karaikal. In
spite of treatment, the said Vijayakumari succumbed to injuries on the same
day. Therefore, the appellants filed the said claim petition claiming a sum of
Rs.25,00,000/- as compensation against the respondents, being the rider,
owner and insurer of the motorcycle bearing Registration No.TN 82 B 2035
respectively.
5.The respondents 1 and 2, being the rider and owner of the motorcycle
bearing Registration No.TN 82 B 2035 remained exparte before the Tribunal.
6.The 3rd respondent-Insurance Company, filed counter statement and
denied all the averments made by the appellants. According to 3rd respondent,
both the 1st respondent as well as the 2nd appellant were not possessing valid
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C.M.A.No.5 of 2021
driving license at the time of accident. The TVS Scooty Zest motorcycle
bearing Registration No.PY 02 P 7414 was not having valid insurance policy.
If the rider of the motorcycle bearing Registration No.PY 02 P 7414, viz.,
Sakthivelu, 2nd appellant herein was careful enough while riding the
motorcycle, he would have avoided the accident that occurred at morning
09.00 A.M. The said Sakthivelu was not well trained in riding the motorcycle
and he only rode his motorcycle at a high speed in a zig zag manner without
caring about other vehicles. Therefore, the accident has occurred only due to
the negligence on the part of the rider of the motorcycle bearing Registration
No.PY 02 P 7414 and hence, the 3rd respondent is not liable to pay any
compensation to the appellants. The appellants have to prove that they are the
legal heirs of the deceased Vijayakumari by producing valid documents. The
3rd 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.
7.Before the Tribunal, the 1st appellant examined himself as P.W.1 and
one Thirumani, eyewitness to the accident was examined as P.W.2 and 9
documents were marked as Exs.P1 to P9. The 3rd respondent-Insurance
Company examined one R.Kumaresan, Assistant Motor Vehicle Inspector as
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C.M.A.No.5 of 2021
R.W.1 and marked one document as Ex.R1.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held both the 1st respondent as well as the 2nd appellant are
responsible for the accident, fixed negligence in the ratio 85% on the part of
the 1st respondent and 15% on the part of the 2nd appellant, awarded a sum of
Rs.11,45,032/- as compensation to the appellants and directed the 3rd
respondent-Insurance Company to pay a sum of Rs.9,73,277/- being 85% of
the award amount as compensation to the appellants.
9.Questioning the portion of the award fixing 15% contributory
negligence on the part of the 2nd appellant as well for enhancement of
compensation in the award dated 22.10.2019 made in M.C.O.P.No.137 of
2016, the appellants have come out with the present appeal.
10.The learned counsel appearing for the appellants contended that the
accident has occurred only due to rash and negligent riding by the 1st
respondent. The appellants examined one Thirumani, eyewitness to the
accident as P.W.2 and marked F.I.R. as Ex.P1 and proved the negligence on
the part of the 1st respondent. The 3rd respondent has not let in any contra
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C.M.A.No.5 of 2021
evidence to the evidence of P.W.2. In the absence of any contra evidence, the
Tribunal erroneously fixed 15% contributory negligence on the part of the 2nd
appellant-rider of the TVS Scooty Zest motorcycle bearing Registration
No.PY 02 P 7414 in which the deceased traveled on the ground that 2nd
appellant was not possessing driving license at the time of accident when
there is no contra evidence. The learned counsel appearing for the appellants
further contended that the deceased was aged 42 years, a Tailor and was
earning a sum of Rs.500/- per day. The Tribunal erroneously fixed meagre
sum of Rs.6,500/- per month as notional income of the deceased. The
deceased was aged 42 years at the time of accident and the Tribunal failed to
grant any enhancement towards future prospects. There are three dependents
of the deceased and the Tribunal erroneously deducted 50% instead of
deducting 1/3rd towards personal expenses of the deceased. The Tribunal
failed to award any amount towards loss of love and affection. The total
compensation awarded by the Tribunal is meagre and prayed for setting aside
the portion of the award fixing 15% contributory negligence on the part of
the 2nd appellant and for enhancement of compensation.
11.Per contra, the learned counsel appearing for the 3rd respondent-
Insurance Company contended that the 2nd appellant, who was the son of the
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C.M.A.No.5 of 2021
deceased and rider of the TVS Scooty Zest motorcycle bearing Registration
No.PY 02 P 7414 in which the deceased traveled as pillion rider did not
possess driving license at the time of accident and did not know how to ride
the motorcycle. The Tribunal considering the materials placed before it, held
that 2nd appellant could have avoided the accident had he been careful in
riding the motorcycle and fixed 15% contributory negligence on the part of
the 2nd appellant. The deceased was a non-earning member and the Tribunal
erroneously fixed a sum of Rs.12,798/- per month as notional income of the
deceased. The monthly income fixed by the Tribunal is excessive and 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 appellant as well as the
learned counsel appearing for the 3rd respondent-Insurance Company and
perused the entire materials available on record.
13.From the materials available on record, it is seen that it is the case
of the appellants that while the 2nd appellant was riding the TVS Scooty Zest
motorcycle bearing Registration No.PY 02 P 7414 along with the deceased
Vijayakumari as pillion rider, the 1st respondent rode the motorcycle bearing
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C.M.A.No.5 of 2021
Registration No.TN 82 B 2035 in a rash and negligent manner, overtook the
TVS Scooty Zest motorcycle rode by the 2nd appellant and suddenly turned to
left side and hit on the TVS Scooty Zest motorcycle rode by the 2nd appellant
and caused the accident. To substantiate their case, the appellants examined
P.W.2/eyewitness and marked F.I.R. which was registered against the 1st
respondent as Ex.P1. On the other hand, it is the case of the 3 rd respondent-
Insurance Company that 2nd appellant did not possess driving license and did
not know how to ride the TVS Scooty Zest motorcycle and he is solely
responsible for the accident. The 3rd respondent did not examine the 1st
respondent or any eyewitness to prove their case that accident has occurred
only due to the negligence on the part of the 2nd appellant. The Tribunal
considered the fact that 2nd appellant who was the rider of the TVS Scooty
Zest motorcycle at the time of accident did not enter the witness box and
depose as to the manner of accident as alleged in the claim petition. On the
other hand, the appellants examined only P.W.2 as eyewitness. The
appellants have not given any reason for not examining the 2nd appellant. The
Tribunal considering all the materials placed before it, held that had the 2nd
appellant was careful while riding the motorcycle, he could have avoided the
accident and fixed 15% negligence on the part of the 2nd appellant and 85%
negligence on the part of the 1st respondent. The Tribunal has given valid
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C.M.A.No.5 of 2021
reason for fixing 15% contributory negligence on the part of the 2 nd appellant.
There is no error in the said finding of the Tribunal warranting interference
by this Court.
14.As far as quantum of compensation is concerned, the appellants
claimed that the deceased was a Tailor and was earning a sum of Rs.500/- per
day. The appellants failed to prove the said contention. The Tribunal in the
absence of any materials, fixed notional income of the deceased at
Rs.12,798/- per month. The monthly income fixed by the Tribunal is not
meagre. The deceased was aged 42 years at the time of accident and married.
The Tribunal has not granted any enhancement towards future prospects of
the deceased. As per the judgment of the Hon'ble Apex Court reported in
2017 (2) TNMAC 609 (SC), [National Insurance Company Limited Vs.
Pranay Sethi and others], the appellants are entitled to 25% enhancement
towards future prospects of the deceased. The multiplier '14' adopted by the
Tribunal is proper. The Tribunal has deducted 50% towards personal
expenses of the deceased instead of deducting 1/3rd. After granting 25%
enhancement towards future prospects and deducting 1/3rd towards personal
expenses of the deceased, the compensation granted by the Tribunal towards
loss of dependency is modified to Rs.17,91,720/- {Rs.15,997.5/- [Rs.12798/-
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C.M.A.No.5 of 2021
X Rs.3199.5/- (25% of Rs.12,798/-)] X 12 X 14 X 2/3}. The Tribunal has not
awarded any amount towards loss of love and affection. The appellants are
entitled to a sum of Rs.40,000/- towards loss of love and affection. The
amounts awarded by the Tribunal towards loss of consortium, loss of estate
and funeral expenses are just and reasonable and hence, the same are hereby
confirmed. Thus, the compensation awarded by the Tribunal is modified as
follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of dependency 10,75,032/- 17,91,720/- Enhanced
2. Loss of love and affection - 40,000/- Granted
3. Loss of consortium 40,000/- 40,000/- Confirmed
4. Funeral expenses 15,000/- 15,000/- Confirmed
5 Loss of estate 15,000/- 15,000/- Confirmed
Total Rs.11,45,032/- Rs.19,01,720/- Enhanced by
85% of compensation Rs.9,73,277/- Rs.16,16,462/- Rs.6,43,185/-
(Rs.16,16,462/-
-
Rs.9,73,277/-)
15.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.11,45,032/- is hereby
enhanced to Rs.19,01,720/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 3 rd respondent-
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C.M.A.No.5 of 2021
Insurance Company is directed to deposit 85% of the award amount now
determined by this Court (i.e., Rs.16,16,462/-) along with interest and costs,
less the amount if any already deposited, 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.137
of 2016 on the file of the Motor Accident Claims Tribunal, District Court,
Karaikal. On such deposit, the appellants are permitted to withdraw the
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. No costs.
21.01.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The District Judge,
Motor Accident Claims Tribunal,
Karaikal.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.5 of 2021
V.M.VELUMANI, J.
krk
C.M.A.No.5 of 2021
21.01.2021
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