Madras High Court

Malliga vs Saroja Udatha on 25 June, 2021

                                                      C.M.A.No.1938 of 2020
            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                           DATED: 25.06.2021

                                CORAM:

            THE HONOURABLE MRS.JUSTICE S.KANAMMAL

                         C.M.A.No.1938 of 2020


1.Malliga

2.Radhika

3.Vasudevan

4.Baskar                                               .. Appellants


                                  Vs.

1.Saroja Udatha

2.M/s.Reliance General Insurance Company Limited,
 Sri Lakshmi Complex,
 1st Floor, Bharathi Street, Omalur Main Road,
 Swarnapuri, Salem - 636 004.                  .. Respondents

(R1 remained exparte before the
Lower Court. Hence service of notice
may be dispensed with)




Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
1/10
                                                        C.M.A.No.1938 of 2020
Vehicles Act, 1988, against the judgment and decree dated 27.04.2017 made
in M.C.O.P.No.210 of 2016 on the file of the Motor Accident Claims
Tribunal, learned Special District Court, Salem.


                   For Appellants       : Mr.P.Jagadeesan

                   For R2                : Ms.C.Bhuvanasundari


                              JUDGMENT

The Civil Miscellaneous Appeal is filed by the appellants seeking

enhancement of compensation granted by the Tribunal in the award dated

27.04.2017 made in M.C.O.P.No.210 of 2016 on the file of the Motor

Accident Claims Tribunal, learned Special District Court, Salem.

2.The appellants are the claimants in M.C.O.P.No.210 of 2016 on the

file of the Motor Accident Claims Tribunal, learned Special District Court,

Salem. The appellants are the wife and sons of the deceased. They filed the

said claim petition, claiming a sum of Rs.15,00,000/- as compensation for the

death of one Rathinam, who died in the accident that took place on

27.12.2015.

3.The Tribunal, considering the pleadings, oral and documentary

C.M.A.No.1938 of 2020 evidence, held that the accident occurred due to rash and negligent driving by

st nd

the driver of the lorry belonging to the 1 respondent and directed the 2

respondent/Insurance Company to pay a sum of Rs.6,52,110/- as

compensation to the appellants.

4.Not being satisfied with the amount awarded by the Tribunal, the

appellants have come out with the present appeal seeking enhancement of

compensation.

5.The learned counsel appearing for the appellants contended that the

deceased was running a grocery shop and also doing milk vending business

and was earning a sum of Rs.25,000/- per month. The Tribunal erroneously

fixed a meager sum of Rs.6,500/- per month as notional income of the

deceased. The deceased was aged 50 years at the time of the accident. The

Tribunal has not awarded any compensation towards future prospects. Also

the Tribunal has not awarded any amount towards loss of estate and prayed

for enhancement of compensation.

6.Per contra, the learned counsel appearing for the 2nd

C.M.A.No.1938 of 2020 respondent/Insurance Company contended that the accident has occurred due

to negligence on the part of the deceased. The deceased was not possessing

any valid driving license at the time of accident. The appellants have not filed

any documents to prove the avocation and income of the deceased. The

amounts awarded by the Tribunal under different heads are excessive. The

appellants have not made out any case for enhancement of compensation and

prayed for dismissal of the appeal.

7.Heard the learned counsel appearing for the appellants as well as

learned counsel appearing for the 2nd respondent/Insurance Company and

perused all the materials available on record.

8.From the materials available on record, it is seen that the appellants

have contended that the deceased was running a grocery shop and doing milk

vending business and was earning a sum of Rs.25,000/- per month. The

appellants have not filed any documents to prove their contention. In the

absence of any material evidence, the Tribunal fixed a sum of Rs.6,500/- per

month as notional income of the deceased. The accident is of the year 2015.

The notional income fixed by the Tribunal is meager. A sum of Rs.9,000/- per

C.M.A.No.1938 of 2020 month is fixed as notional income of the deceased. The deceased was aged 52

years at the time of the accident. The Tribunal has not awarded any amount

towards future prospects. Hence, the appellants are entitled to 10% towards

future prospects. Considering the age of the deceased, the Tribunal rightly

applied multiplier '11'. The amount granted by the Tribunal towards loss of

income is modified to Rs.8,71,200/- (Rs.9,000/- +900/- (10% X Rs.9,000) x

12 x 11 x 2/3). The amounts awarded by the Tribunal towards loss of

consortium and loss of love & affection are meager and hence, the same are

hereby enhanced to Rs.40,000/- to the 1 appellant towards loss of

consortium, Rs.40,000/- each to the appellants 2, 3 & 4 towards loss of love

& affection. The amount awarded by the Tribunal towards funeral expenses is

excessive and hence, the same is hereby reduced to Rs.15,000/-. The Tribunal

has not awarded any amount towards loss of estate. A sum of Rs.15,000/- is

granted towards loss of estate. Thus, the compensation awarded by the

Tribunal is modified as follows:

 S.No    Description        Amount               Amount            Award
                           awarded by         awarded by this   confirmed or
                            Tribunal              Court         enhanced or
                              (Rs)                 (Rs)           granted
1.      Loss of income             5,72,110            8,71,200 Enhanced


                                                            C.M.A.No.1938 of 2020
2.       Loss of                     25,000            40,000 Enhanced
         consortium to
              st

         the 1 appellant
3.       Loss of love                30,000          1,20,000 Enhanced
         and affection to
         the appellants 2
         to 4 each
         Rs.40,000/-
4.       Funeral                     25,000            15,000 Reduced
         expenses
5.       Loss of estate                     -          15,000 Granted
         Total              Rs.6,52,110/-       Rs.10,61,200/- Enhanced by
                                                               Rs.4,09,090/-

9.The learned counsel for the 2nd respondent/Insurance Company would

contend that since the deceased did not possess any valid driving license at the

time of accident 10% liability is to be fixed against him. But this Court is of

the view that without any material evidence for negligence on the part of the

deceased, liability can not be fixed against the deceased merely for the reason

of non possession of driving license. As per 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], the relevant passage of which is

extracted hereunder:

"7.Both the Tribunal, and in Appeal in the High Court, have found fault with the Appellant for not having

C.M.A.No.1938 of 2020 produced his Driving License. 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 Motorcycle which had suffered damage and that there was no Eyewitness. 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 of conjecture and without any evidence. Once the finding that there was Contributory Negligence on 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

C.M.A.No.1938 of 2020 the Appellant had not produced the Driving License, 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 License, he commits an offence. The same, by itself, in our opinion, may not led 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 License 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 License, he would be held to be guilty of Contributory Negligence....