Karuppaye vs Thendral
2022 Latest Caselaw 876 Mad

                                                                                   CMA.No.2748 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 20.01.2022

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                                CMA No.2748 of 2021

                     1.Karuppaye
                     2.Kuppu
                     3.Kalaiarasi
                     4.Elumalai                                                    ... Appellants

                                                            Vs
                     1.Thendral

                     2.Reliance General Insurance Company Limited,
                       No.6, Haddows Road,
                       Motor T.P.Hub, Nungambakkam,
                       Chennai-600 006.                                            ... Respondents

                     Prayer: This Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988, against the Judgment and Decree dated
                     08.04.2021 and made in M.A.C.T.O.P. No.1082 of 2019 on the file of the
                     Motor Accident Claims Tribunal, Chief Judge, Court of Small Causes,
                     Chennai.
                                          For Appellants         : Ms.A.Subadra

                                          For Respondents        : Mrs.C.Bhuvanasundari (for R2)
                                                                   R1 – Notice dispensed with vide
                                                                          order dated 12.11.2021

                     1/10


https://www.mhc.tn.gov.in/judis
                                                                                     CMA.No.2748 of 2021




                                                     JUDGMENT

The claimants, who were favoured with an award for a sum of

Rs.12,37,600/- for the death of one Murugan in a motor accident that

occurred on 31.12.2018, are on appeal terming the compensation as meagre.

2.It is the case of the claimants that the said Murugan was a B.Sc.,

B.Ed. graduate and was working as a Cashier in New Saravana Sweets and

Bakery, situated at No.12, Avadi Road, Karayanchavadi, Poonamallee. He

was earning a sum of Rs.18,000/- per month. Contending that as a result of

the accident, the first claimant mother of the deceased had lost financial

support and the claimants 2 to 4, who are the sisters and brother of the

deceased, who were also dependent on him, had also lost their only

breadwinner. Claiming taht the negligence on the part of the driver of the

offending vehicle, which was insured with the second respondent Insurance

Company, was the cause for the accident the claimants sought for a

compensation of Rs.25,00,000/-.

3.The said claim petition was resisted by the Insurance Company

contending that there was no negligence on the part of the driver of the two

https://www.mhc.tn.gov.in/judis CMA.No.2748 of 2021

wheeler bearing registration No.TN12-W-5005, which was insured with the

second respondent Insurance Company and the deceased by not wearing a

helmet had contributed to the accident. It was also claimed that the owner

and the insurer of the vehicle, in which the deceased was travelling as a

pillion rider bearing Registration No.TN20-BM-2626, are also necessary

parties to the claim petition. The qualification and earnings were also

disputed. In proof of the accident, the claimants had examined PW2

Kannaiyan, who was an eye witness to the accident. PW1 is the mother of

the deceased and PW3 is the employer. Neither oral nor documentary

evidence was let in by the Insurance Company or the owner of the vehicle.

The owner of the offending vehicle namely, registration No.TN12-W-5005,

remained exparte. The Insurance Company took permission of the Tribunal

under Section 170 of the Motor Vehicles Act to take the defences that are

available to the insurer.

4.The Tribunal on the assessment of the evidence held that the

rider of the motor cycle bearing Registration No.TN12-W-5005 was

responsible for the accident. The Tribunal relied upon the FIR which was

registered under Sections 279, 337 and 338 of IPC in Crime No.5 against

https://www.mhc.tn.gov.in/judis CMA.No.2748 of 2021

the rider of the motor cycle bearing Registration No.TN12-W-5005. The

Tribunal also held that the rider of the motor cycle in which the deceased

was travelling as a pillion rider would have contributed to the accident and

fixed the contributory negligence at 20% on the rider of the motor cycle

bearing Registration No.TN20-BM-2626. The Tribunal disbelieved the

evidence of PW3 and took the monthly income at Rs.10,000/-, added 40%

towards future prospects, deducted 50% towards personal expenses, the

deceased being a bachelor, arrived at the total loss of dependency at

Rs.15,12,000/- adopting a multiplier of 18. The Tribunal also awarded a

sum of Rs.15,000/- towards funeral expenses and Rs.20,000/- towards loss

of love and affection. In all, the Tribunal arrived at the compensation of

Rs.15,47,000/- deducting 20% towards contributory negligence. The

Tribunal awarded a sum of Rs.12,37,600/-.

5.Challenging the quantum, Ms.A.Subadra, learned counsel

appearing for the appellants would vehemently contend that the Tribunal

was not right in fixing the monthly income at Rs.10,000/- for the accident

that occurred on 31.12.2018. She would point out that a Division Bench of

this Court in M.Mohammed Azharudin vs. M.Rafee reported in 2021 (1)

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TNMAC 800 (DB) had taken the monthly notional income at Rs.18,000/- for

an accident that had occurred in the year 2013. She would also point out in

the case that the deceased was 19 years old Engineering student.

6.The learned counsel would submit that the Tribunal erred in not

accepting the evidence of PW3. According to her, in the absence of contra

evidence, the evidence of PW3 should have been accepted and the monthly

income should have been taken at Rs.18,000/-.

7.Faulting the Tribunal for deducting 20% towards contributory

negligence, Ms.A.Subadra would point out that there is total lack of

evidence on the side of Insurance Company regarding the contributory

negligence. She would also draw my attention to the evidence of PW2, the

eye-witness, particularly, the cross examination to contend that there is not

even a suggestion regarding contributory negligence.

8.Contending contra, Mrs.C.Bhuvanasundari, learned counsel

appearing for the Insurance Company would submit that the Tribunal was

right in disbelieving the evidence of PW3, as PW3 was not able to produce

any document in support of his version. The only document that was

produced to show that PW3 is running a business was Ex.P19, a certificate

https://www.mhc.tn.gov.in/judis CMA.No.2748 of 2021

issued by the Legal Metrology Department regarding the correctness of the

weights and measures used by New Saravana Sweets and Bakery. That by

itself, according to the learned counsel, would not afford any support to the

claim that the deceased was being paid a sum of Rs.18,000/- per month.

Supporting the findings of the Tribunal on contributory negligence, the

learned counsel would submit that the deceased was not wearing the helmet

and therefore, PW2 had stated that he has not seen the accident and heard

the noise and then only saw the vehicles had collaided. Therefore, according

to the learned counsel, the Tribunal was right in assuming that there was a

possibility of there being some contribution of the rider of the two wheeler

bearing Registration No.TN20-BM-2626.

9. I have considered the rival submissions.

10. On the monthly income, I am unable to accept the findings of

the Tribunal in fixing the monthly income at Rs.10,000/- for an accident that

had occurred in December 2018. Even if we take the wages that was paid to

the NMR employees in the State's PWD, it was around Rs.600/- per day

during the relevant time. Giving certain allowance for leave and absence, the

monthly income could be safely taken at Rs.15,000/-, the qualification of the

https://www.mhc.tn.gov.in/judis CMA.No.2748 of 2021

deceased namely, B.Sc. B.Ed., is also taken into account in fixing the

monthly notional income at Rs.15,000/-. If the monthly notional income is

taken at Rs.15,000/- and 40% is add towards future prospects, the total

monthly income would be Rs.21,000/-, deducting 50% for a personal

expenses,the deceased being a bachelor, the monthly loss of dependency

would be Rs.10,500/-. Applying the multiplier of 18 the total loss of

dependency would be Rs.22,68,000/-. The Tribunal has awarded a sum of

Rs.15,000/- towards funeral expenses and Rs.20,000/- towards loss of love

and affection. The first petitioner, who is a mother would be entitled for a

sum of Rs.40,000/- towards loss of love and affection. Therefore, a sum of

Rs.40,000/- is awarded towards loss of love and affection. The total

compensation workouts to Rs.23,23,000/-.

11. On the deduction of 20%, I find considerable force in the

argument of the learned counsel for the appellants. There is no evidence on

the side of the Insurance Company to show that the rider of the two wheeler

bearing registration No.TN20-BM-2626 was negligent or careless and it was

his negligence or carelessness that contributed to the accident. PW2 has

specifically deposed that it is the rider of the two wheeler bearing

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registration No.TN12-W-5005, who was riding in a rash and negligent

manner and dashed against the other vehicle. The FIR has also been lodged

against him. PW2 has also deposed that he has deposed before the Criminal

Court also. His evidence has not been diluted in any manner in cross

examination.

12. I do not find any suggestion to him to the effect that the rider

of the two wheeler in which the deceased was travelling as a pillion rider

was negligent and it was his negligence that caused the accident. The

Tribunal had decided on contributory negligence purely on assumptions. I

am unable to endorse the said procedure adopted by the Tribunal. If the

Insurance company wants to take the plea of contributory negligence, it is

for the Insurance Company to let in evidence on contributory evidence. The

Insurance Company cannot seek the Tribunal to fix contributory negligence

on assumptions without letting in any evidence. Therefore, the deduction of

20% towards contributory negligence in my opinion is liable to be set aside.

13.I fine, the Civil Miscellaneous Appeal stands allowed. The

compensation is enhanced to Rs.23,23,000/-. The interest awarded by the

Tribunal is confirmed. The deduction of 20% towards contributory

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negligence is set aside.

14. The first claimant would be entitled to the entire compensation

along with 7.5% interest and costs. The Insurance Company is required to

deposit the enhanced compensation, less the amount already deposited to the

credit of MCOP.No.1082 of 2019, within a period of six weeks from the date

of receipt of a copy of this order and on such deposit, the first claimant is

entitled to withdraw the entire amount. The direction for deposit made by

the Tribunal is also set aside. No costs.

20.01.2022 vs Index: No Speaking order

To

1.The Motor Accident Claims Tribunal, Chief Judge, Court of Small Causes, Chennai.

2.The Section Officer, VR Section, Madras High Court, Chennai.

https://www.mhc.tn.gov.in/judis CMA.No.2748 of 2021

R.SUBRAMANIAN, J.

vs

CMA No.2748 of 2021

20.01.2022

https://www.mhc.tn.gov.in/judis