Madras High Court
National Insurance Company ... vs Muppidathi Thangam on 26 April, 2023
C.M.A. (MD)No.644 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD)No.644 of 2022
and
C.M.P.(MD)No.5517 of 2022
National Insurance Company Limited.,
Through its Divisional Manager,
No.37, C.S.N.High Road,
Tiruenlveli. ...Appellant/2nd Respondent
Vs.
1.Muppidathi Thangam
2.Esakkiammal ...Respondents 1 & 2/Petitioners
3.Kanagavallie ...3rd Respondent/1st Respondent
PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, to set aside the award in M.C.O.P.No.854 of 2016 dated
27.10.2021 on the file of the Motor Accidents Claims Tribunal, Special
Subordinate Court dealing with MCOP Cases, Tirunelveli.
For Appellant : Mr.J.S.Murali
For R1 & R2 : Mr.V.Sasikumar
For R3 : Exparte
1/8
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.644 of 2022
JUDGMENT
Challenging the quantum of compensation and the negligence fixed by the
Motor Accident Claims Tribunal/Special Subordinate Court dealing with MCOP
cases, Tirunelveli in M.C.O.P.No.854 of 2016, dated 27.10.2021, the present Civil
Miscellaneous Appeal has been filed.
2.For the sake of convenience, the parties herein are referred to as per their
rank before the Trial Court.
3.The brief facts, leading to the filing of the claim petition, are as follows:-
(i)On 07.04.2016 at about 12.00 noon, when the deceased was travelling in
a motorcycle bearing Registration No.TN-76-V-6951 as a pillion rider from north
to sougth on Tenkasi-Kadayam Main Road, a bus bearing Registration No.TN-76-
J-0445 came from the opposite direction in a rash and negligent manner dashed
against the motorcycle. As a result, the deceased sustained to injuries and
succumbed. The rider of the motorcycle also sustained injuries.
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C.M.A. (MD)No.644 of 2022
(ii)A case in crime No.94 of 2016 was also registered. The deceased was
aged about 19 years at the time of accident and he was a Engineering student. The
petitioners are the parents of the deceased. Hence, the claim petition was filed
seeking compensation.
(iii) The second respondent before the Tribunal took a stand that the rider of
the two wheeler drove the vehicle with two pillion riders, that too without any
valid driving license. Further, they were all in inebriated condition at the time of
accident. Hence, opposed the claim petition.
4.Before the tribunal, on the side of the claimants P.W.1 and P.W.2 were
examined and Ex.P1 to Ex.P10 were marked. On the side of the respondents
R.W.1 to R.W.3 were examined and Ex.R1 to Ex.R5 were marked.
5.The tribunal after considering the entire oral and documentary evidence on
record and also considering the fact that the deceased was an Engineering student,
had fixed the monthly income of the deceased at Rs.18,000/- and awarded the
compensation as follows:
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C.M.A. (MD)No.644 of 2022
S.No. Head Amount
1. Loss of dependency Rs.27,21,600/-
2. Loss of Consortium Rs. 40,000/-
3. Loss of Estate Rs. 15,500/-
4. Funeral Expenses Rs. 15,000/-
Total Rs.27,91,600/-
The total compensation amount is Rs.27,91,600/-. The tribunal had fixed 10%
negligence on the part of the deceased and 90% negligence on the part of the
driver of the offending vehicle/bus. Challenging the same, the present Civil
Miscellaneous Appeal had been filed by the Insurance Company.
6.The learned counsel for the appellant contended that carrying three
persons in a two wheeler itself is a violation. That apart, the rider and the pillion
riders were inebriated condition. The evidence of R.W.1 and R.W.2 also
establishes the same. The Tribunal without considering these factual aspects had
fixed only 10% contributory negligence on the part of the deceased and the same
has to be modified.
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C.M.A. (MD)No.644 of 2022
7.The learned counsel for the respondents would submit that the Tribunal
considering the evidence on record found that there is no evidence to show that the
deceased or the rider of the motorcycle were inebriated condition. Hence, the
Tribunal had rightly fixed the contributory negligence at 10% on the part of the
deceased, which does not require any interference.
8.In view of the above submissions, now the point arises for consideration
in this appeal is:
Whether the tribunal was right in fixing contributory negligence only at
10%?
9.The deceased along with two others were proceeding in a motorcycle, at
that time the accident had taken place. This aspect had not been disputed. The fact
remains that the deceased was proceeding in a motorcycle with three persons,
which itself is a violation of the provisions of the Motor Vehicles Act. Two
wheeler is meant for two persons only. If three persons are carried in a two
wheeler, it will lead to consequences of loosing the balance while riding the two
wheeler. Therefore, the Tribunal ought to have fixed contributory negligence on
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.644 of 2022
the part of the rider and the deceased also. This Court is of the view that 10%
contributory negligence has to be fastened on the rider of the two wheeler also.
Accordingly, 20% contributory negligence is fixed.
10. Merely because of three persons are travelling in a two wheeler, that will
not grant license to the offending driver to drive the vehicle casually without
sufficient caution to avert the accident. Therefore, 80% contributory negligence is
fixed on the driver of the offending bus.
11.Admittedly, the deceased was an engineering student. The Tribunal had
fixed sum of Rs.18,000/- as monthly income and adopted proper multiplier. It is
the contention of the learned counsel for the appellant that the Hon'ble Supreme
Court of India in the case of Meena Pawaia and others vs. Ashraf Ali and others
[2021 (2) TN MAC 790 (SC)], Rs.18,000/- was fixed as monthly income for an
Engineering graduate. That accident took place in the year 2012. Whereas in the
present case, the accident had taken place in the year 2016. Such view of the
matter, this Court is of the view that the notional income adopted by the Tribunal
does not require any interference. Hence, the compensation awarded under other
heads remains unaltered.
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C.M.A. (MD)No.644 of 2022
12.In such view of the matter, the appellant Insurance Company is directed
to pay a sum of Rs.22,33,280/- (Rupees Twenty Two Lakhs Thirtee Three
Thousand Two Hundred and Eight only) to the claimants as compensation.
Accordingly, this Civil Miscellaneous Appeal is allowed.
13.The appellant is directed to deposit the compensation amount
i.e., Rs.22,33,280/- (Rupees Twenty Two Lakhs Thirtee Three Thousand Two
Hundred and Eight only) as modified by this Court with interest and costs from the
date of petition till the date of realization to the credit of M.C.O.P.No.854 of 2016,
on the file of the Motor Accident Claims Tribunal /Special Subordinate Court,
Tirunelveli within a period of one month from the date of receipt of a copy of this
judgment, less the amount, if any already deposited. On such deposit, the claimant
is permitted to withdraw said amount, less the amount if any already withdrawn,
by making necessary application before the Tribunal. No costs.
26.04.2023
NCC : Yes / No
Index : Yes/No
Internet : Yes/No
ta
https://www.mhc.tn.gov.in/judis
C.M.A. (MD)No.644 of 2022
N.SATHISH KUMAR, J.
ta
To
1.The Motor Accident Claims Tribunal
Special Sub Court, Tirunelveli.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
C.M.A.(MD)No.644 of 2022
26.04.2023
https://www.mhc.tn.gov.in/judis
