Madras High Court

Valliammal vs Rukmani on 19 April, 2022

                                                                                C.M.A.No.3340 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 19.04.2022

                                                           CORAM

                                  THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN

                                                 C.M.A.No.3340 of 2017

                1.Valliammal
                2.Ponnusamy
                3.Chandrasekar                                               ... Appellants
                                                            Vs.

                1.Rukmani
                (R1 remained ex-parte before Tribunal.
                Hence notice to R1 dispensed with)

                2.The Manager,
                  National Insurance Company Limited,
                  No.19/B, S.R.Complex, Rajamani Thottam,
                  Bhavani Main Road,
                  Sankarai, Salem District – 637 301.                        ...Respondents

                Prayer: The Civil Miscellaneous Appeal filed under Section 173 of the
                Motor Vehicles Act, 1988, against the award and Decree made in
                M.C.O.P.No.461 of 2015, dated 11.08.2017, on the file of the Motor
                Accidents Claims Tribunal cum Principal District Judge, Namakkal.


                                    For Appellants     : Mr.C.Kulanthaivel
                                    For R2             :   Ms.N.B.Surekha




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                                                                               C.M.A.No.3340 of 2017



                                                   JUDGMENT

The claimants in M.C.O.P.No.461 of 2015 which was on the file of the

Motor Accidents Claims Tribunal/Principal District Court at Namakkal, are

the appellants herein.

2. They are aggrieved by the quantum of compensation granted for the

death due to accident of the husband of the first claimant/father of the second

and third claimants.

3. Basic facts required are that, Ramasamy was the husband of the first

claimant and the father of the second and third claimants. He was aged about

70 years and was doing an agricultural work. It was claimed that he was

earning a sum of Rs.15,000/- per month. On 08.01.2015, at around 4.50 in

the evening, according to P.W.2, who had witnessed the accident, the

deceased was waiting in the corner of the Karur to Salem National Highways

at Velayutham palayam, Pugazhi Mandabam to cross the road, when a tanker

lorry bearing registration No.TN52 W 5181 had dashed against him. He had

unfortunately died of the injuries caused.

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4. The Tribunal, by Judgment dated 11.08.2017, had stated that the

claimants are entitled to a total compensation of Rs.2,56,688/-. But the

Tribual had further observed that the accident had occurred owing also to the

negligence of the deceased and therefore, had determined that particular

negligence at 50% of contribution and had granted a compensation of

Rs.1,28,344/-.

5. Assailing the quantum of compensation granted and also the

determination of 50% as contributory negligence, the claimants have filed the

present appeal.

6. Heard Mr.C.Kulandhaivel, learned counsel for the appellants and

Ms.N.B.Surekha, learned counsel for the second respondent/Insurance

Company.

7. The nature of the accident had been stated briefly above. To reiterate

that, on 08.01.2015, around 4.50 p.m., the deceased Ramasamy who was

aged 70 years, was waiting to cross the National Highways Road between

Karur and Salem at Velayutham Palayam, Pugazhi Mandabam. It is stated

that, at that particular point of time, the offending lorry tanker bearing

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Registration No.TN 52 W 5181 had dashed against him and caused grievous

injuries which ultimately led to his death.

8. The disputed fact is whether he was standing in the corner of the

road or was actually crossing the road. The Tribunal had found that he was

crossing the road and therefore held that he had contributed to the accident

and therefore deducted 50% of compensation determined.

9. In this connection, the documents filed have to be examined. It is

seen from the impugned award that before the Tribunal, during the course of

trial, the first claimant Valliammal had examined herself as P.W.1 and an eye

witness Shanmugam was examined as P.W.2. The driver of the lorry tanker

was examined as R.W.1. On the side of the claimants, Exs.P1 to P11 were

marked. Ex.P1 was the copy of the First Information Report and Ex.P2 was

the Accident Registrar, Ex.P5 was the report of the Motor Vehicle Inspector

and Ex.P6 was the Copy of the Charge sheet.

10. On the basis of the aforementioned documents, the Tribunal came

to a conclusion particularly, on the basis of the evidence of R.W.1/lorry

driver that the deceased had crossed the road and on seeing a lorry coming,

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had turned back and at that particular point of time, the offending lorry had

dashed against him. It was therefore observed by the Tribunal that the

accident had occurred owing to this particular negligent act of crossing the

road by the deceased.

11. This particular finding is assailed by Mr.C.Kulanthaivel, learned

counsel for the appellant who stated that the said finding is based on the

evidence of R.W.1 who was an interested witness and naturally, tried to state

that the accident had occurred only owing to the negligence of the deceased

and not owing to his own driving.

12. The learned counsel pointed out that even otherwise, deduction of

50% as contributory negligence is unwarranted. It was stated that this finding

of the Tribunal is therefore to be interfered with.

13. Ms.N.B.Surekha, learned counsel for the second respondent on the

other hand, pointed out that the lorry driver had been acquitted of the offence

of causing the accident before the Magistrate Court and that fact had also

been observed by the Tribunal.

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14. I have carefully considered the arguments on that particular aspect.

15. It is a fact that the deceased was hit by the lorry tanker. The only

issue to be considered is whether he was standing on the side of the road as

asserted by P.W.2 or was crossing the road and turned back when the

accident occurred as asserted by R.W.1.

16. Ex.P1, the First Information Report is the first statement as to the

nature or the manner in which the accident occurred. It had been stated that

the accident had occurred when he attempted to cross the road.

17. The fact that the lorry driver was acquitted of the criminal offence,

would not come to the rescue of R.W.1, since strict proof is required for

conviction and if it is made probable that the accident occurred also owing to

negligence by the other party, then the benefit will only be given to the driver

of the vehicle. I would therefore not give much credence to the acquittal of

R.W.1, which was on appreciation of evidence adduced during that trial.

18. In view of this particular reasoning, I hold that 50% deduction

towards contributory negligence fixed by the Tribunal is little excessive. I

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would reduce the contributory negligence to 25% and grant it the ratio of

75% : 25%. It must be kept in mind that the lorry driver, R.W.1 should also

have taken care when he had seen a aged man crossing the road and he was

the last person who could have prevented the accident from occurring.

19. The issue of compensation was then determined by the Tribunal

and in this connection, the Tribunal had determined the income of the

deceased at Rs.6,000/- per month. On the other hand, the Tribunal had

deducted 1/3rd towards personal expenses and had retained 2/3rd towards his

contribution to the family. I would interfere with the income determined and

I would determine the notional income of the deceased at Rs.6,500/- per

month and deduct 1/3rd towards personal and medical expenses, which would

mean that he would contribute a sum of Rs.4,334/- @ Rs.4,400/- to the

family [6,500 X 1/3]. Thus, loss of income per annum can be determined as

Rs.2,64,000/- by taking a multiplier of 5, in view of the age of the deceased

[Rs.4,400 X 12 X 5].

20. For loss of estate, I would grant a sum of Rs.15,000/-. For funeral

expenses I would retain the same as awarded by the Tribunal. For Loss of

consortium, I would grant a sum of Rs.30,000/-. For transport expenses, I

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would grant a sum of Rs.2,000/-For medical bills, I would retain the same.

For love and affection I would grant a sum of Rs. 10,000/- each for the two

children and grant Rs.20,000/- under the head of loss of love and affection.

21. The total compensation now calculated is as under:

                    Sl.                       Description                 Amount awarded by this
                    No                                                         Court (Rs)
                    1      Loss of Income                                      Rs.2,64,000/-
                    2      Loss of Consortium to the first appellant            Rs.30,000/-
                    3      Loss of Love and affection to the second and         Rs.20,000/-
                           third respondents (each Rs.10,000/-)
                    4      Loss of estate                                       Rs.15,000/-
                    5      Funeral Expenses                                     Rs.5,000/-
                    6      Transportation                                       Rs.2,000/-
                    7      Medical bills                                        Rs.5,688/-
                           Total                                               Rs.3,41,688/-
                           75% Contributory negligence                         Rs.2,56,266/-

22. In the result, this Civil Miscellaneous Appeal is allowed.

The compensation awarded by the Tribunal at Rs.1,28,344/- (being the 50%

contributory negligence) is hereby enhanced to Rs.2,56,266- [Rupees Two

lakhs Fifty Six Thousand Two Hundred and Sixty Six only] (being the 75%

contributory negligence) together with interest at the rate of 7.5% per annum

from the date of filing of claim petition till the date of deposit. The 2nd

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respondent/Insurance Company is directed to deposit the award amount, now

determined by this Court, along with interest and costs, as awarded by the

Tribunal less the amount already deposited, if any, within a period of eight

weeks from the date of receipt of a copy of this judgment to the credit of

M.C.O.P.No.461 of 2015, on the file of the Motor Accidents Claims