Madras High Court
K. Usha vs M/S. Sri Ganapathy Steel Private ... on 23 June, 2022
CMA.No.1367 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.06.2022
CORAM:
THE HONOURABLE MS. JUSTICE P.T.ASHA
CMA.No.1367 of 2018
1. K. Usha
W/o. Late. Kuppu Udaiyar @ Chinnathambi.
2. K. Vetrivel
S/o. Late. Kuppu Udaiyar @ Chinnathambi
3. K. Geetha
D/o. Late Kuppu Udaiyar @ Chinnathambi ..
Appellants
vs.
1. M/s. Sri Ganapathy Steel Private Limited,
S. No. 106/1, Attur Main Road,
Udaiyarpalayam,
Thammampatti Post,
Gangavalli Taluk.
2. M/s. New India Insurance Co. Ltd.,
Zonal Office-III,
151-A, Kizhakku Valli Road,
Madurai. ..Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the award and judgment dated
07.10.2017 passed by the Motor Accident Claims Tribunal/III Additional
District Court, Salem, in M.C.O.P. No.315 of 2015 for enhancement of
the award amount.
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CMA.No.1367 of 2018
For Appellants : Mr.P. Jagadeesan
For R1 : Notice served, no appearance.
For R2 : Ms. R. Sree Vidhya
JUDGMENT
The appellants/claimants have filed this present Civil Miscellaneous
Appeal seeking enhancement of the award granted in M.C.O.P. No.315 of
2015 passed by the learned III Additional District Judge, Motor Accident
claims Tribunal, Salem.
2. The facts in brief are as follows:-
2.1. The appellants/claimants had sought a compensation of a sum
of Rs.25,00,000/- for the death of one Kuppu Udaiyar, the husband of the
1st appellant and the father of the appellants 2 and 3 in a road accident.
2.2. It is their case that the said Kuppu Udaiyar was aged about 54
years at the time of his death and he was earning a monthly income of
Rs.25,000/- through agricultural work and milk vending business. On
03.11.2014, at about 5 p.m., when the said Kuppu Udaiyar @
Chinnathambi tried to cross the Salem-Athur Main Road, the lorry
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CMA.No.1367 of 2018
belonging to the 1st respondent driven by its driver in a rash and negligent
manner and at a uncontrollable speed, had hit the deceased and on
account of the impact, the said Kuppu Udaiyar died on the spot.
Therefore, the appellants filed the claim petition before the Tribunal.
2.3. The 1st respondent, owner of the lorry, had not entered
appearance and was set ex-parte. The Insurance Company had filed its
counter alleging that the deceased Kuppu Udaiyar had contributed to the
accident as he had crossed the four lane road, which he was not supposed
to cross. The Insurance Company had denied the age, occupation and the
income of the deceased Kuppu Udaiyar. The Insurance Company had
stated that the act of the deceased in crossing the road suddenly was
contrary to the Motor Vehicle Rules for pedestrians and therefore, the
lorry driver cannot be singled out for negligence.
2.4. The Tribunal, after considering the evidence on record, held
that the deceased was also negligent and therefore, apportioned the
negligence equally on the deceased as well as the driver of the lorry. The
Tribunal had fixed the notional monthly income of the deceased as
Rs.5,000/- and after deducting 1/3rd towards personal expenses and
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CMA.No.1367 of 2018
adopting a multiplier of 11 considering the age of the deceased, had
arrived at a loss of income of Rs.4,40,000/-. After awarding amounts
under the other conventional heads, a total sum of Rs.5,85,000/- has been
awarded to the claimants. Since the deceased had also contributed to the
accident, 50% contributory negligence was mulcted on him and after
deducting the same, the Tribunal has awarded a sum of Rs.2,92,500/-.
Aggrieved by this award, the appellants/claimants are before this Court.
3. Mr. P. Jagadeesan, learned counsel appearing on behalf of the
appellants would question the correctness of the award on two grounds.
One the mulcting of equal negligence on the deceased who was a
pedestrian and also fixing just a sum of Rs.5,000/- as notional monthly
income of the deceased, totally overlooking the fact that the deceased
owns about 5 acres of land in which he was doing agricultural work and
also the fact that he owns about 10 cows and was vending milk and milk
products there from.
4. Per contra, Ms.R. Sree Vidya, learned counsel appearing on
behalf of the Insurance Company would contend that the deceased by
crossing the four lane track, where vehicles ply at a great speed, has been
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CMA.No.1367 of 2018
very negligent and this has caused the accident. Therefore, the
apportionment of the negligence equally on both the deceased and the
driver of the 1st respondent lorry was very much in order. Further, though
the appellants had contended that the deceased Kuppu Udaiyar owns 5
acres of land and owns 10 cows, there was nothing produced to prove the
same. Therefore, fixing of the notional income at Rs.5,000/- was well in
order.
5. Heard the learned counsel on both sides.
6. The unfortunate accident in which Kuppu Udaiyar died had
taken place at about 5 p.m. It is no doubt true that the deceased had been
very negligent in trying to cross the highway, where the vehicles'
movement is very high. However, vehicles plying on the highway are also
required to maintain a speed limit and the drivers plying on these roads
have to be extra cautious about the persons and the cattle crossing the
road all of a sudden. Apparently the driver of the lorry was driving at such
a speed that he was not able to stop the vehicle, as a result of which, he
had hit the deceased. The deceased by crossing the road at a place where
no crossing was permitted has also contributed to the accident. However,
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CMA.No.1367 of 2018
the apportionment of the negligence equally on both the deceased and the
lorry driver is without any basis. The deceased being a pedestrian, a
contributory negligence of 10% can be fixed upon him.
7. The appellants had pleaded that the deceased was carrying on
agricultural activities and also doing milk business. The said factum has
been denied by the respondents. The Tribunal has arrived at a notional
income of Rs.5,000/- only on the basis of the age of the deceased. The
accident has taken place in the year 2015. The wife of the deceased, who
adduced evidence, has stated that her husband was engaged in
Agricultural activities. Therefore, the notional income can be fixed at a
sum of Rs.7,500/- per month, to which, 1/3 has to be deducted towards
personal expenses. The loss of income, therefore, would be
Rs.6,60,000/- (7500 x 12 x 11 x 2/3). It is also brought to the notice of
this Court that the Tribunal has awarded a sum of Rs.50,000/- towards
the loss of consortium for the wife, which has to be reduced to
Rs.40,000/-. The compensation for the loss of love and affection to the 2nd
petitioner has to be increased to Rs.40,000/- from Rs.25,000/- and the
compensation under the head of love and affection to the 3rd petitioner has
to be reduced to Rs.40,000/- from Rs.50,000/-. The Tribunal has not
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CMA.No.1367 of 2018
awarded any amount under the head of loss of estate and a sum of
Rs.15,000/- should be added under this head. Therefore, the modified
award would be as follows:
S. Description Amount Amount Award
No awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of Income 4,40,000/- 6,60,000/- enhanced
2. Funeral Expenses 15,000/- 15,000/- confirmed
3. Loss of consortium to 50,000/- 40,000/- Reduced
the 1st petitioner
4. Loss of love and 25,000/- 40,000/- Enhanced
affection to the 2nd
petitioner
5. Loss of love and 50,000/- 40,000/- Reduced
affection to the 3rd
petitioner
6. Transport charges 5,000/- 5,000/- Confirmed
7. Loss of estate - 15,000/- freshly granted
TOTAL 5,85,000/-- 8,15,000/-
Contributory 50% on 90% on Enhanced by
negligence Rs.5,85,000/- is Rs.8,15,,000/- Rs.4,41,000/-
Rs.2,92,500/- is Rs.7,33,500/-
Since the negligence has to be apportioned between the appellants and the
Insurance Company in the ratio 10:90, the amount of compensation
payable by the Insurance Company would be a sum of Rs.7,33,500/-.
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CMA.No.1367 of 2018
8. Therefore, the Civil Miscellaneous Appeal is allowed and the
award of the Tribunal be and hereby is enhanced to a sum of
Rs.7,33,500/- (Rupees Seven lakhs thirty three thousand five hundred
only) from Rs.2,92,500/- together with interest @ 7.5 % per annum from
the date of petition till the date of deposit. In all other aspects the award
of the Tribunal is confirmed. The 2nd respondent/ insurance company is
directed to deposit the said amount (Rs.7,33,500/-) to the credit of
M.C.O.P.No.315 of 2015 on the file of the Motor Accident Claims
Tribunal/III Additional District Court, Salem, together with interest @
7.5% per annum from the date of claim petition till the date of deposit
and costs as awarded by the Tribunal, less, the amount, if any already
deposited, within a period of eight weeks from the date of receipt of a
copy of this Judgment and thereafter recover the same from the owner of
the vehicle. On such deposit, the appellants are permitted to withdraw
the award amount so deposited, as per the ratio of apportionment fixed
by the Tribunal, along with proportionate interest and costs, less the
amount if any, already withdrawn by making necessary applications
before the Tribunal. The Tribunal shall not disburse the amounts until
proof of payment of the Court fee is produced by the claimant failing
which the Tribunal shall get a confirmation from this Court that the Court
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CMA.No.1367 of 2018
fee has been paid. No costs.
23.06.2022
bga
Index : Yes/No
Speaking / Non-speaking order
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CMA.No.1367 of 2018
P.T.ASHA, J.
bga
To,
Motor Accident Claims Tribunal (III Additional District Court),
Salem.
CMA.No.1367 of 2018
23.06.2022
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