Madras High Court

The Manager vs Jayakodi on 25 March, 2022

                                                                              C.M.A.No.669 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 25.03.2022

                                                         CORAM

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

                                                 C.M.A.No.669 of 2018


                     The Manager,
                     National Insurance Company Ltd.,
                     No.74-A, Paramathy Road,
                     Namakkal – 637 001.                                      ... Appellant

                                                           Vs.

                     1.Jayakodi
                     2.Subramanian
                     3.V.Bhuvaneswari                                         ... Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988, against the Judgment and decree passed in
                     M.C.O.P.No.49 of 2016 on 05.07.2007, on the file of the Learned (III
                     Additional District and Sessions Judge) The Motor Accidents Claims
                     Tribunal at Virudhachalam, Cuddalore District.
                                     For Appellant     : Ms.A.Divya
                                                         for M/s.J.Chandran

                                     For Respondents : M/s.S.Saravanan
                                                       *****


                     1/10


https://www.mhc.tn.gov.in/judis
                                                                                  C.M.A.No.669 of 2018

                                                         JUDGMENT

The second respondent in M.C.O.P.No.49 of 2016 on the file of the

III Additional District Court/Motor Accidents Claims Tribunal,

Vridhachalam, Cuddalore, is the appellant herein.

2. M.C.O.P.No.49 of 2016 (claim petition) has been preferred by the

parents of Prabhakaran, who was aged about 23 years and was working as a

JCB Operator, when he died owing to an accident on 16.07.2015 at around

12.15 in the middle of the night. At that time, after finishing his office work,

he was riding his Hero Splendor Motorcycle bearing Registration No.TN 31

BV 8609 from Vridhachalam to his native place T.V.Puthur. He was

traveling on the Vridhachalam to Jayankondam main road. When he was on

the Northern side of the Vellar river bridge, a lorry belonging to the first

respondent bearing registration No.TN 28 AH 3732 said to have been

driven in a rash and negligent manner had dashed against the Motorcycle of

the deceased and due to the accident, he suffered multiple grievous injuries

and was taken to Government Hospital, Vridhachalam and then referred to

JIPMER Hospital, Pondicherry, but, unfortunately he died. Claiming that

https://www.mhc.tn.gov.in/judis C.M.A.No.669 of 2018

the said accident had occurred only due to the rash and negligent manner, in

which the lorry was driven, the parents had filed the aforementioned

M.C.O.P.No.49 of 2016.

3. The second respondent, National Insurance Company had filed a

counter and they claimed that there was no evidence that the deceased was

actually a JCB Operator and therefore, to prove his salary they stated that

the claimant should establish that he was having a valid driving license to

operate a JCB lorry. The first respondent remained ex-parte.

4. During the trial, on the side of the claimants, the first

claimant/mother of the deceased was examined as P.W.1 and two

independent witnesses were examined as P.W.2 and P.W.3. The claimants

have marked Exhibits, viz., Ex.P1 to Ex.P16 and among those documents,

the relevant documents would be Ex.P1, the copy of the First Information

Report, Ex.P2, the copy of the Motor Vehicle Inspector Report, Ex.P6 , the

copy of the driving license of the deceased, Ex.P10, the salary certificate of

the deceased and Ex.P15, copy of the Insurance Policy.

https://www.mhc.tn.gov.in/judis C.M.A.No.669 of 2018

5. On the side of the respondents, the Junior Assistant, Regional

Transport Office, Vridhachalam was examined as R.W.1 and he marked

Exhibits viz., Ex.R1 and Ex.R2. Ex.R2 was the copy of the driving license

of the deceased Prabhakaran.

6. The second respondent before Tribunal resisted the claim of

compensation primarily on the ground that the deceased had driving license,

which authorized him to drive only a light motor vehicle. It was however

stated that if there is a badge then he could be permitted to operate the JCB

machine and in absence of badge or authority, he cannot be permit to

operate the JCB. Therefore, they questioned the very employment of the

deceased.

7. It is observed that P.W.2 had been examined on behalf of the

claimants, who was an independent person, who had deposed as an eye

witness to the accident. The Tribunal also observed that the driver of the

lorry did not depose regarding the manner in which the accident had

occurred. Therefore, adverse interference was drawn against the driver of

the lorry. In view of the aforesaid reasons, the Tribunal held that the

https://www.mhc.tn.gov.in/judis C.M.A.No.669 of 2018

accident was caused only due to the rash and negligent manner in which the

lorry was driven. I would affirm that particular finding.

8. The Tribunal then proceeded to determine the compensation which

has to be granted and found that the lorry was insured with the second

respondent. It was therefore stated that the second respondent had an

obligation to indemnify the insured for any loss and that therefore, the

second respondent would be liable to pay the compensation awarded by the

Tribunal.

9. With respect to the compensation to be paid, the Tribunal had

observed that the deceased was aged about 23 years. The Tribunal was also

examined Ex.P3, the copy of the Postmortem Certificate, which showed that

the deceased was aged about 25 years at the time of his death.

10. It was stated by P.W.3 that he was owning a Chamber Brick

Industry and he was also owning a JCB and that the deceased Prabhakaran

was employed in the Industry. He had issued a salary certificate viz., Ex.P10

stating that the deceased was earning a sum of Rs.20,000/-. However, the

https://www.mhc.tn.gov.in/judis C.M.A.No.669 of 2018

Tribunal did not give much credence to that particular exhibit. With respect

to the authority of the deceased to actually drive the JCB, the evidence of

R.W.1 was examined by the Tribunal and during cross-examination R.W.1

had admitted that if the JCB was less than 7500 kgs then a driving license to

drive light motor vehicle is sufficient and the vehicle could be used for self

use without badge. The Tribunal held that the deceased was not employed

by P.W.3 cannot be accepted and by considering the evidence of P.W.3 and

R.W.1, the Tribunal held that the deceased was actually a JCB driver and

the income of the deceased was fixed at Rs.10,000/- per moth.

11. The learned counsel appearing for the appellant raised issues with

respect to the entitlement of the deceased, to actually drive the JCB. But, at

the same time, the evidence of R.W.1 was in favour of the appellant and

therefore, the said finding of the Tribunal is confirmed by this Court.

12. The Tribunal had taken 50% towards his future prospects and had

relied upon a judgment in the case of Rajesh and Others Vs. Rajbir Singh

and Others [2013 (2) TNMAC 55 (SC)]. But it is now established that 40%

of the monthly income alone can be taken for future prospects. The Tribunal

https://www.mhc.tn.gov.in/judis C.M.A.No.669 of 2018

had also deducted 50% towards personal expenses. The Tribunal had

granted Rs.50,000/- towards loss of love and affection. That amount has to

be interfered with by this Court and Rs.40,000/- alone can be granted. The

Tribunal had granted a sum of Rs.25,000/- towards funeral expenses and

transportation at Rs.10,000/- . In view of these findings, which this Court

affirms, except for the grant of loss of love and affection and the future

prospects, the compensation granted by the Tribunal is modified as follows :

Monthly income is at Rs.10,000/- + 40% of the future prospects i.e., 4,000/.

Therefore, the monthly income = Rs.10,000/- + Rs.4,000/- = Rs.14,000/- -

50% has to be deducted towards personal expenses. Therefore, the monthly

income is Rs.7,000/-.

                                   Notional income 7,000 x 12 x 18                   15,12,000/-
                                   Loss of love and affection 40,000/- x 2              80,000/-
                                   Funeral expenses and transportation                  35,000/-
                                   (25,000/- + 10,000/-)
                                   Total                                             16,27,000/-

13. In the result, this Civil Miscellaneous Appeal is allowed and the

compensation awarded by the Tribunal at Rs.17,55,000/- is hereby reduced

to Rs.16,27,000/- [Rupees Sixteen Lakhs Twenty Seven Thousand only]

https://www.mhc.tn.gov.in/judis C.M.A.No.669 of 2018

together with interest at the rate of 7.5% per annum from the date of the

appeal till the date of deposit. The Appellant/Insurance Company is directed

to deposit the award after adjusting the reduced amount, now determined by

this Court, along with interest and costs, less the amount already deposited,

if any, within a period of six weeks from the date of receipt of a copy of this

judgment to the credit of M.C.O.P.No.49 of 2016, on the file of the Motor

Accidents Claims Tribunal, Vridhachalam, Cuddalore District. On such

deposit, the respondents are permitted to withdraw the amount equally, now