Madras High Court
Kasthuri @ Nallammal vs M/S.Vasantha Raja Bus Services on 17 June, 2022
C.M.A.No.3229 of 2017
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED : 17.06.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.No.3229 of 2017
1.Kasthuri @ Nallammal
2.Ambiga
3.Minor Ganesan
S/O.LateSakthivel
(Minor represented by his mother
next friend/1st petitioner ) ... Appellants
Vs.
1.M/s.Vasantha Raja Bus Services,
rep.by its Proprietor,
Puducherry.
2.M/s.National Insurance Company Limited,
rep. by its Divisional Manager,
Puducherry. … Respondents
1/13
https://www.mhc.tn.gov.in/judis
C.M.A.No.3229 of 2017
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act against the Award and Decree dated 13.04.2017
in M.C.O.P.No.124 of 2010 on the file of the learned II Additional
District Judge, Motor Accidents Claims Tribunal, Puducherry.
For Appellants : Mr.N.M.Elumalai
For Respondents : Mr.P.Veeraraghavan for R1
Ms.R.Sreevidhya for R2
JUDGMENT
Seeking an enhancement of the Award passed by the learned II
Additional District Judge, Motor Accidents Claims Tribunal,
Puducherry, in M.C.O.P.No.124 of 2010, the claimants are the
appellants before this Court.
2.The appellants who are the legal representatives of one
Sakthivel had filed the above claim petition seeking compensation of a
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C.M.A.No.3229 of 2017
sum of Rs.10 lakhs for the death of the said Sakthivel in a road
accident. It is their case that on 01.09.2009 at 21.15 hours, when the
deceased was travelling in the bus belonging to the 1st respondent and
insured with the 2nd respondent, the driver of the bus drove the said
vehicle in a rash and negligent manner and at an uncontrollable speed,
by reason of this, the vehicle dashed against the tree, when proceeding
on the Villianur Main road from South to North direction. Due to the
impact, the deceased was hit on his head and had succumbed to his
injury.
3.The 1st respondent owner of the bus remained absent and was
set ex parte.
4.The Insurance Company had taken a defence that the deceased
was also negligent. He was travelling as a passenger on the roof of
the bus. He had climbed the roof of the vehicle knowing fully well the
risks involved. By reason of this negligence, the accident had
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C.M.A.No.3229 of 2017
occurred. The 2nd respondent had further denied the age and the
income projected by the appellants. In the light of the negligence of
the deceased, the 2nd respondent sought for dismissal of the claim
petition.
5.The Tribunal after considering the evidence rightly held that
the deceased had also contributed to the accident by travelling on the
roof and fixed 25% of contributory negligence on him and the
remaining on the 1st respondent's driver. The Tribunal has arrived at a
compensation of Rs.9,71,200/- to the claimants.
6.The appellants have challenged the said Award on the
following grounds:
(a)Fixing of contributory negligence on the
deceased was erroneous.
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C.M.A.No.3229 of 2017
(b)The age of the deceased has been wrongly fixed
at 49 years. and
(c)The notional income was very low.
7.The learned counsel for the appellants has reiterated the above
and contended that as per the Post-mortem Report which is a scientific
document, the age of the deceased was 45 years and therefore, the
Tribunal ought to have fixed as 45 years and not 49 years as adopted
by it. He would further contend that the deceased was working as a
Tailor and earning considerably well. Further, the Tribunal's order
fixing the daily income at Rs.200/- per day is very low. He would
therefore contend that the Award has to be enhanced.
8.Per contra, Ms.R.Sreevidhya, learned counsel for the 2nd
respondent would submit that the Tribunal has adopted the age as
given in Ex.P.13 – Election Identity Card. She would also submit that
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C.M.A.No.3229 of 2017
the Tribunal has rightly fixed negligence on the deceased as he has
travelled on the roof of the bus being fully aware of the risk involved.
Therefore, there is no necessity to reconsider the Award or enhance
the compensation.
9.Heard the learned counsel appearing on either side and
perused the papers.
10.As regards the issue of negligence, it is an admitted fact that
the deceased was travelling on the roof of the bus. Such a travel is
absolutely reckless and the person so travelling is fully aware of the
risk involved. The negligence of the deceased cannot be brushed
aside. Had he not travelled so he would not have been injured.
Therefore, the Award of the Tribunal in mulcting 25% of the liability
on the deceased is perfectly in order.
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C.M.A.No.3229 of 2017
11.As regards the age of the deceased Ex.P.13 which is the
Election Identity Card shows the date of birth as 1960. This is the
Card which is issued on the information supplied by the deceased
himself. The deceased has given his year of birth as 1960. The age
shown in the Post-mortem Report is filled up with the details provided
by the person who brings the body. Therefore, considering the fact
that year of birth of the deceased is shown as 1960 in Ex.P.13, the
Award of the Tribunal in fixing the age of the deceased at 49 years
cannot be found fault with. It is an admitted fact that the deceased
was employed as a Tailor (The 2nd respondent Insurance Company
has not been able to controvert this statement).
12.The Tribunal has fixed just a sum of Rs.200/- per day. The
said sum has to be enhanced to a sum of Rs.300/- per day. Therefore,
the notional monthly income would be a sum of Rs.9,000/-. To this,
30% to be added towards future prospects taking into account the age
of the deceased which was 49 years and from out of this, 1/3 has to be
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C.M.A.No.3229 of 2017
deducted towards the personal expenses of the deceased. Therefore,
the amount under the head of loss of income would be a sum of
Rs.12,16,800/-. [Rs.7,800/- x 12 x 13= Rs.12,16,800/-]
13.As rightly pointed out by the learned counsel for the 2nd
respondent, the amounts under the head loss of consortium to the 1st
petitioner and the loss of love and affection to the petitioners 2 and 3
has to be reduced to a sum of Rs.40,000/- each by following the
decision in 2017 (16) SCC 680 [National Insurrance Company v.
Pranaya Sethi and another]. Under the head of funeral expenses
only a sum of Rs.10,000/- has been awarded, this is enhanced to a sum
of Rs.15,000/-. No amounts has been awarded under the head loss of
estate and therefore, a sum of Rs.15,000/- has to be awarded under the
head loss of estate. Therefore, the revised compensation and the
existing compensation would be as follows:
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C.M.A.No.3229 of 2017
S.No Description Amount Amount Award
awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted or
reduced
1. loss of income Rs.8,11,200/- Rs.12,16,800/- Enhanced
2. Loss of consortium Rs.50,000/- Rs.40,000/- Reduced
3. Loss of love and Rs.1,00,000/- Rs.80,000/- Reduced
affection to the
petitioners 2 and 3
4. Funeral expenses Rs.10,000/- Rs.15,000/- Enhanced
5. Loss of estate - Rs.15,000/- Enhanced
Total Rs.9,71,200/- Rs.13,66,800/- -
Less 25% Less 25%
contributory contributory
negligence on negligence on
the part of the the part of the
deceased = deceased
Rs.2,42,800/- =Rs.3,41,700/-
Rs.7,28,400/- Rs.10,25,100/-
The petitioner is entitled to 75% of the compensation amount which
comes to Rs.10,25,100/-[Rs.13,66,800 - Rs.3,41,700/-]
14.The 2nd respondent Insurance Company is directed to deposit
the enhanced compensation amount of Rs.10,25,100/- with interest
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C.M.A.No.3229 of 2017
@7.5% per annum from the date of petition till the date of payment,
less the amount already deposited, with proportionate accrued interest
and costs, to the credit of M.C.O.P.No.124 of 2019 on the file of the
learned II Additional District Judge, Motor Accidents Claims
Tribunal, Puducherry, within a period of six weeks from the date of
receipt of a copy of this order, if not deposited earlier and thereafter,
recover the enhanced compensation amount from the 1st
respondent/owner of the vehicle. On such deposit, the petitioners 1
and 2/claimants are permitted to withdraw the their share with
proportionate accrued interest and costs as apportioned by the
Tribunal, by making necessary applications. The share of the minor/3rd
claimant shall be deposited in any one of the Nationalised Banks in
fixed deposit under the reinvestment scheme initially for a period of
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C.M.A.No.3229 of 2017
three years. The interest accruing on the share of the minor/3 rd
respondent shall be paid to the mother/1st claimant of the minor, once
in three months, till he attains majority.
The claimants are directed to pay the Court fee for the enhanced
compensation amount, if required. The Tribunal below shall not
disburse the award amount till such time as the certified copy showing
proof of payment of Court Fee has been produced by the claimants.
No costs. Consequently, connected Miscellaneous Petition is closed.
17.06.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
The II Additional District Judge,
Motor Accidents Claims Tribunal,
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C.M.A.No.3229 of 2017
Puducherry.
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C.M.A.No.3229 of 2017
P.T. ASHA, J,
mps
C.M.A.No.3229 of 2017
17.06.2022
https://www.mhc.tn.gov.in/judis
