Madras High Court
Chandra vs K.G.Sowrirajan on 1 October, 2021
C.M.A.Nos.2827 and 2831 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.10.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A.Nos.2827 and 2831 of 2021
CMA.No.2827 of 2021
1.Chandra
2.Harish (Minor)
3.Yogeshwaran (Minor)
(2nd and 3rd Minor are represented by their grandmother
and natural guardian 1st appellant)
4.Gowri
5.Devi
6.Sasikala
7.Viji
... Appellants
Vs.
1.K.G.Sowrirajan
2.National Insurance Company Limited,
1st Floor, Aruvi Block,
St.Paul Complex,
Bharathi Salai,
Tiruchirapalli.
...Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988, praying to enhance the award against the judgment and
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decree dated 30.01.2019 and made in M.A.C.T.O.P.No.9102 of 2015, on the
file of the Motor Accident Claims Tribunal, V Court of Small Causes,
Chennai.
For Appellants : Mr.A.G.F.Terry Chella Raja
For Respondents : Mr.S.Arunkumar for R2
CMA.No.2831 of 2021
1.Rose Mary
2.Dharson (Minor)
3.Rohit (Minor)
4.Rajambal
5.Rajagopal
... Appellants
Vs.
1.K.G.Sowrirajan
2.National Insurance Company Limited,
1st Floor, Aruvi Block,
St.Paul Complex,
Bharathi Salai,
Tiruchirapalli.
...Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988, praying to enhance the award against the judgment and
decree dated 30.01.2019 and made in M.A.C.T.O.P.No.9104 of 2015, on the
file of the Motor Accident Claims Tribunal, V Court of Small Causes,
Chennai.
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C.M.A.Nos.2827 and 2831 of 2021
For Appellants : Mr.A.G.F.Terry Chella Raja
For Respondents : Mr.S.Arunkumar for R2
COMMON JUDGMENT
[Judgment of the Court was delivered V.SIVAGNANAM, J]
These appeals are heard through video conferencing.
2.These appeals arise out of the common judgment dated 30.01.2019
passed in MCOP Nos.9102 and 9104 of 2015 respectively.
3.Both these Civil Miscellaneous Appeals are filed by the claimants
in MCOP Nos. 9102 and 9104 of 2015 respectively seeking enhancement of
the compensation.
4.MCOP No.9102 of 2015 was filed by the claimants who are the
legal heirs of the deceased Ramesh. He was riding pillion in the vehicle
driven by the deceased Murugan on the fateful. Similarly, MCOP No.9104
of 2015 was filed by the legal heirs of the deceased rider of the two wheeler
Murugan.
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5.As per the common averments made in the claim petitions, on the
fateful day on 08.11.2015 at about 1.30 am, the deceased Murugan was
riding the two wheeler bearing Registration No.TN-03-A-3137 with the
deceased Ramesh riding pillion, from Puducherry to Chennai. When the
two wheeler was driven near a place called Thirthavari Iyyanar Statute,
Marakkanam, ECR Road, the driver of the Omni bus bearing Registration
No.TN 60 D 1599, which is coming from Chennai to Pondicherry, was
driven in a rash and negligent manner and hit the two wheeler. In the
impact, both the driver as well as the pillion driver were thrown away from
the vehicle, sustained grievous injury and died on the spot.
6.According to the claimants, the deceased Ramesh (pillion driver)
was aged 36 years while the driver of the two wheeler Murugan was aged
32 years. It is stated that both of them were working as carpenter and
earning Rs.20,000/- each per month. For the loss of their income, the
claimants have filed the MCOP Nos.9102 and 9104 of 2015 before the
Tribunal claiming a sum of Rs.50 lakhs as compensation each.
7.The Original Petitions were resisted by the first respondent/owner
of the omni bus by contending that the driver of the bus had driven the
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vehicle in a careful and responsible manner but it was the driver of the two
wheeler who had recklessly driven it and caused the accident. In other
words, it is the defence of the owner of the omni bus before the Tribunal in
both the claim petitions that the driver of the two wheeler namely Murugan
had contributed for the accident in entirety.
8.The Insurance Company filed separate counter affidavit in both the
claim petitions. It is their defence that the claimants ought to have
impleaded the owner as well as insurer of the two wheeler and their
non-impleadment is fatal to the case of the claimants. It is also stated that
the two wheeler driver was negligent in driving the vehicle and it has led to
the accident. The Insurance Company also denied the age, avocation and
other particulars furnished in the claim petition and prayed for dismissal of
the claim petitions.
9.Before the Tribunal, common evidence was let in. The first
claimant in MCOP No.9102 of 2015 examined herself as PW1. The first
claimant in MCOP No.9104 of 2015 was examined as PW2 and one
Rajaram, a Carpenter by avocation was examined as PW3. The claimants
have marked Exs.P1 to P20 in support of the claim petition. On behalf of
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the respondents in the claim petition, neither any witness was examined nor
document was marked.
10.The Tribunal, on considering the oral and documentary evidence
concluded that the claimants in MCOP No. 9104 of 2015 have not produced
the driving licence of the deceased Murugan. It is also stated that the
claimants have simply stated that the deceased was in possession of a
driving licence but it was lost. The Tribunal therefore held that the
claimants ought to have obtained certified copy of the driving licence and
filed it as a document before the Tribunal to show that the deceased was in
possession of a valid driving licence at the time of accident and for non-
production of the same the Tribunal had taken an adverse inference and
fixed 10% contributory negligence on the part of the deceased Murugan.
11.As regards quantum of compensation, the Tribunal awarded a total
sum of Rs.23,36,000/- for the claimants in MCOP No.9102 of 2015 and
Rs.22,57,200/- for the claimants in MCOP No.9102 of 2015, after deducting
10% towards contributory negligence.
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12.As against the award passed by the Tribunal, neither the owner of
the Omni bus nor the Insurer has filed any appeal. These appeals are filed
only by the claimants seeking enhancement of the compensation amount
interalia to set aside the 10% contributory negligence fixed by the Tribunal
as against the deceased in MCOP No.9104 of 2015.
13.The learned counsel for the appellants in CMA No.2831 of 2021
would vehemently contend that for non-production of driving licence of the
deceased, the Tribunal ought not to have fixed 10% contributory
negligence. When the respondents in the claim petition did not adduce any
evidence to show the nature and extent of negligence on the part of the
driver of the two wheeler or in the absence of any other evidence, the
Tribunal ought not to have fixed 10% contributory negligence.
14.As far as the quantum of compensation is concerned, the learned
counsel for the appellants contended that the claimants claimed Rs.50 lakhs
each as compensation however, what was awarded by the Tribunal is
meagre. The Tribunal failed to take note of the age of the deceased, their
occupation and their ability to earn more. Even though the claimants
claimed that the deceased are Carpenters by occupation and earned
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Rs.20,000/-, the Tribunal fixed a sum of Rs.12,000/- per month as monthly
income. The Tribunal ought to have at least fixed Rs.15,000/- per month, as
the monthly income even going by the fact that a carpenter can earn at least
a sum of Rs.700/- per day and for 20 days, the deceased could have earned
more than Rs.15,000/- per month. Further, the Tribunal erred in deducting
1/3rd income towards personal expenses, when the deceased have their
respective wife, children and parents and therefore, the Tribunal ought to
have deducted 1/4th income towards personal expenses. It is also stated
that the amount awarded under various heads are not proportionate to the
evidence made available and therefore, the learned counsel prayed for
appropriate enhancement.
15.On the above submission of the learned counsel for the appellant
in these appeals, we have heard the learned counsel for the
respondents/Insurance Company and perused the materials placed.
16.Before the Tribunal, the respondents did not adduce either oral or
documentary evidence in support of their case. It is the definite case of the
claimants that the accident occurred when the Omni Bus was driven by its
driver in a rash and negligent manner. The case in Crime No.445 of 2015
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on the file of Marakkanam Police Station was registered against the driver
of the Omni bus, which is evident from Ex.P1. We also take note of the fact
that in the accident, two young lives were lost. Thus, there is no evidence
to conclude that it was the driver of the two wheeler who had driven the
vehicle in a rash and negligent manner. In the absence of any such
evidence, the Tribunal, in our opinion, ought not to have fixed 10%
negligence on the part of the driver of the Two wheeler on the only ground
that the claimants did not produce any documentary evidence to prove that
the deceased driver of the two wheeler was in possession of a valid driving
licence. Whether the deceased was in possession of a valid driving licence
or not is not a ground for the Tribunal to conclude that the deceased would
have contributed to the accident. Such a conclusion has been arrived at by
the Tribunal on mere surmises without any valid evidence. Therefore, we
are of the view that the Tribunal is not right in fixing 10% negligence on the
driver of the two wheeler and we are inclined to set aside the same.
17.As far as quantum, admittedly, there was no documentary evidence
produced to prove the income of the respective deceased. It is claimed by
the claimants that the deceased were Carpenters by avocation and they
earned Rs.20,000/- per month. In the absence of any documentary
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evidence, the Tribunal fixed Rs.12,000/- per month as monthly income of
the deceased in both the claim petitions and awarded the compensation
amount. Out of this amount, the Tribunal had taken 40% thereof towards
future prospects. The Tribunal also awarded a sum of Rs.40,000/- towards
loss of love and affection proportionate to number of dependents in each
case. That apart, the Tribunal awarded compensation under the head "loss
of estate", "Transportation" and "funeral expenses". In effect, we find that
the amount of compensation awarded by the Tribunal is fair and reasonable
and therefore we decline to interfere with the same.
18.In the result,
(i) CMA No.2827 of 2021 is dismissed by confirming the
judgment dated 30.01.2019 passed in MCOP No.9102 of 2015. The
Insurance Company is directed to deposit the compensation amount as
determined in this appeal with interest and costs, less the amount already
deposited, if any, within a period of eight weeks from the date of receipt of
a copy of this judgment. The apportionment made by the Tribunal is hereby
confirmed. On deposit being made by the appellants, the claimants 1, 4 and
5 are permitted to withdraw their respective shares, less the amount already
withdrawn, if any, together with interest and costs. Insofar as the second
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and third claimants/ minors are concerned, their shares shall be deposited by
the Tribunal in any Fixed Deposit Scheme in any one of the Nationalized
Banks and it shall be renewed periodically till they attain majority and the
interest accrued thereon shall be withdrawn by the first claimant/mother
once in three months. No costs.
(ii) CMA No.2831 of 2021 is partly allowed by setting aside the
Judgment dated 30.01.2019 passed in MCOP No.9104 of 2015 in so far as it
relates to fixation of 10% as contributory negligence fixed by the Tribunal
on the deceased Murugan, driver of the two wheeler alone and consequently
we hold that the claimants are entitled to a total sum of Rs.25,08,000/- as
compensation in their favour and they shall apportion the said amount as
directed by the Tribunal. The Insurance Company is directed to deposit the
compensation amount as determined in this appeal with interest and costs,
less the amount already deposited, if any, within a period of eight weeks
from the date of receipt of a copy of this judgment. The apportionment
made by the Tribunal is hereby confirmed. On deposit being made by the
appellants, the claimants 1, 4 and 5 are permitted to withdraw their
respective shares, less the amount already withdrawn, if any, together with
interest and costs. Insofar as the second and third claimants/ minors are
concerned, their shares shall be deposited by the Tribunal in any Fixed
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Deposit Scheme in any one of the Nationalized Banks and it shall be
renewed periodically till they attain majority and the interest accrued
thereon shall be withdrawn by the first claimant/mother once in three
months. No costs.
[M.K.K.S, J] [V.S.G., J]
01.10.2021
Index : Yes / No
Speaking order: Yes/No
ub
To
1.The Motor Accident Claims Tribunal,
V Court of Small Causes, Chennai.
2. The Section Officer
V.R. Section,
High Court, Madras.
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K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
ub
C.M.A.Nos.2827 and 2831 of 2021
01.10.2021
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