Madras High Court
Tribunal With Regard To Minor ... vs Japeulla Baig on 14 August, 2023
CMA Nos. 1110 & 1117 of 2023
CMA No.1110 & 1117 of 2023
and C.M.P.Nos.10739 & 10810 of 2023
SUNDER MOHAN, J.
These appeals have been listed today under the caption 'for
being spoken to'.
2. It is seen that in the Judgment dated 14.08.2023 made in
CMA No.1110 & 1117 of 2023 at paragraph 21, direction to the
Tribunal with regard to minor share has been omitted.
3. In view of the above, Registry is directed to replace
paragraph No.21 as follows and issue a fresh order copy, forthwith.
“21.The appellant/Insurance Company is
directed to deposit the award amount in both the
appeals, now determined by this Court along with
interest and costs, less the amounts already
deposited, if any, within a period of six (6) weeks
from the date of a receipt of copy of this common
Judgment. On such deposit except the minor
claimants, the other respondents/claimants in both
the appeals are permitted to withdraw their share of
the award amount along with proportionate interest
and costs, as per the apportionment fixed by the
Tribunal, less the amount if any, already withdrawn.
The share of the minors is directed to be deposited
in any one of the Nationalised Bank in an interest
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
bearing scheme till the minor claimants attain
majority. However, the first respondent in
C.M.A.No.1117 of 2023/mother of the minor
claimants is permitted to withdraw the accrued
interest once in three months. The
appellant/insurance company is permitted to
withdraw the excess amount lying in the deposit, if
the entire award amount has already been deposited
by them. No costs. Consequently, connected
miscellaneous petitions are closed.
04.10.2023
dk
CMA No.1110 & 1117 of 2023
and C.M.P.Nos.10739 & 10810 of 2023
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
C.M.A.No.1110 & 1117 of 2023
and C.M.P.Nos.10739 and 10810 of 2023
SUNDER MOHAN, J.
Today, this appeal is listed under the caption 'For being spoken to'.
2. It is brought to the notice of this Court that in Para No.20 (ii) of
the Judgment of this Court dated 14.08.2023, the total amount of
compensation has been mentioned as Rs.1,78,000/- instead of
Rs.7,71,760/-.
3. In view of the above, paragraph No.20 (ii) of the Judgment of
this Court dated 14.08.2023 should reads as follows :
20.With the above modifications-
(ii) C.M.A.No. 1117 of 2023 is partly allowed
and the compensation awarded by the Tribunal at
Rs.9,93,450/- is reduced to Rs.7,71,760/- together
with interest and costs (excluding the default period, if
any) from the date of petition till the date of deposit.
4.Registry is directed to issue order copy after carrying out the above
corrections. The other contents of the judgment of this Court dated
14.08.2023 shall remain unaltered.
21.08.2023
dk
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
SUNDER MOHAN,J.
dk
C.M.A.No.1110 & 1117 of 2023
and C.M.P.Nos.10739 and 10810 of 2023
21.08.2023
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.07.2023
Pronounced on : 14.08.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal Nos. 1110 & 1117 of 2023
and C.M.P.Nos.10739 & 10810 of 2023
The Manager,
The New India Assurance Co. Ltd.,
No.1-17/D14, Ponnusamy Gounder Complex,
Thiruchengode Road,
Sankagiri.
.... Appellant in both the appeals
Versus
1.Japeulla Baig
2.Jabeenbegum
3.Shaubullabaig,
4.Nishad Begum ...1 To 4th
Respondents/Petitioners.
5.M/s.Sree Balaji Transports,
No.2, Marvampalayathankadu,
Padaveedu Post,
Thirchengode, Namakkal,
Salem District .... 5th Respondent/1st Respondent
in C.M.A.No.1110 of 2023
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
1.S.Gulzar
2.Thasthageer
3.T.Nageena
4.T.Haseena
5.Minor T.Dhania
6.Minor T.Kadar Basha
(5 & 6 are minors rep. by their mother and NFG Mrs.Gulzar)
...1 to 6th Respondents/Petitioners
7.M/s.Sree Balaji Transports,
No.2, Maravampalayathankadu,
Padaveedu Post,
Thirichengode, Namakkal, Salem District.
...7th Respondent/1st Respondent
in C.M.A.No.117 of 2023.
COMMON PRAYER : Civil Miscellaneous Appeals filed under Section
173 of the Motor Vehicles Act, 59 of 1988 against the Judgment and
decree dated 15.09.2022 made in M.C.O.P. Nos. 380 and 436 of 2019 on
the file of the Motor Accident Claims Tribunal and Additional District
Judge, MACT – Hosur.
For Appellants : Mr. P.Sankara Narayanan
For Respondents : Mr. C.Prabakaran
R1 to R6 in C.M.A.No.1117 of 2023
R7 – No Appearance
R1 to R5 – No Appearance
in C.M.A.No.1110 of 2023
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
COMMON JUDGMENT
These appeals have been filed by the 2nd respondent challenging
the common award passed by the Tribunal in M.C.O.P. Nos.380 and
436 of 2019 dated 15.09.2022 as regards the finding of the Tribunal on
contributory negligence fixed on them
[For the sake of convenience, parties are referred
as per their rank in the claim petition]
2. The claimants filed claim petitions stating that while the
deceased Siddhiqulla Baig and Ibrahim were travelling in a Suzuki Max
100 vehicle bearing Registration No. TN 29 B 8061 on Krishnagiri to
Hosur, near Melumalai Kanavai, at about 2.00 A.M., a gas tanker lorry
bearing Registration No. TN 34 Z 7466 belonging to the 1st respondent
which was driven by its driver in a rash and negligent manner in the
opposite direction dashed against the two wheeler and caused the
accident. In the said accident, the said Mr.Siddhiqulla Baig and
Mr.Ibrahim died on the spot. Thus, the claimants had filed two claim
petitions viz., M.C.O.P. Nos. 380 and 436 of 2019 claiming
compensation against the respondents.
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CMA Nos. 1110 & 1117 of 2023
3. The 1st respondent in both the claim petitions remained exparte
before the Tribunal.
4. The second respondent filed common counter denying all the
averments made in the claim petitions including the manner of accident.
The accident occurred only due to the negligent act of the rider of the
motor cycle. The rider of the motor cycle did not wear helmet at the time
of the accident. The final report was filed against the rider of the
motorcycle. There is no negligence on the part of the driver of the
1st respondent. The petition is bad for non joinder of necessary parties
being the owner and insurer of the motorcycle. The age, occupation and
monthly income of the deceased are denied. The amounts claimed as
compensation is excessive and prayed for dismissal of claim petitions.
5. The claimants in M.C.O.P.No.380 of 2019 examined two
witnesses as P.W.1 and P.W.2 and the claimants in M.C.O.P.No.436 of
2019 examined two witnesses as P.W.1 and P.W.2. Ex.P.1 to Ex.P.24
was marked by the claimants in M.C.O.P.No.380 of 2019 and Exs.P1 to
Exs.P2 were marked in M.C.O.P.No.436 of 2019 on the side of the
respondents. R.W.1 and R.W.2 were marked in examined in
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CMA Nos. 1110 & 1117 of 2023
M.C.O.P.No.380 of 2019 and R.W.1 and R.W.2 in M.C.O.P.No.436 of
2019. Exs.R.1 and Exs. R2 – copy of charge sheet and rough sketch were
marked in both the claim petitions.
6.The Tribunal after considering the oral and documentary
evidence filed on the side of the claimants and respondents held that the
accident occurred due to rash and negligent driving by both the rider of
the motorcycle as well as the driver of the 1st respondent and fixed 25%
contributory negligence on the deceased Ibrahim, 10 % negligence on the
deceased Siddiquallah Baig and 75% and 90% negligence on the driver
of the first respondent in M.C.O.P.Nos.380 & 436 of 2019 respectively.
The Tribunal awarded a sum of Rs.11,31,660/- as compensation after
deducting 10% contributory negligence on the deceased and a sum of
Rs.9,93,450/- in M.C.O.P.No.436 of 2019 after deducting 25%
contributory negligence on the deceased.
7. Aggrieved by the said common order, the
2nd respondent/Insurance company had preferred the instant appeals.
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
8. The claimants/respondents in the above appeals are the
dependants of the deceased involved in the same accident and hence,
both Civil Miscellaneous Appeals are disposed of by a common
Judgment.
9. The claimants in M.C.O.P.No.436 of 2019 are the dependants of
the rider of the motorcycle. The claimants in M.C.O.P.No.380 of 2019
are the dependants of the pillion rider of the motorcycle.
10. This Appeal is filed by the 2nd respondent/Insurance Company
challenging the contributory negligence fixed on the deceased.
11. The learned counsel for the 2nd respondent/Insurance Company
submitted that the Tribunal ought not to have fixed negligence on the
part of the driver of the 1st respondent since there is overwhelming
evidence on record to show that the rider of the motorcycle was guilty of
the negligence. The learned counsel pointed out the FIR/Ex.P1, the final
report/Ex.R.1 to substantiate his submission that the rider was found to
be guilty of negligence by the police and since he was deceased, the case
was closed. The learned counsel further pointed out that even from the
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CMA Nos. 1110 & 1117 of 2023
evidence of the witness cited on the side of the respondents, it is clear
that the driver of the alleged offending vehicle was moving slowly on the
correct side and the rider of the motorcycle came and dashed behind the
tanker lorry. This evidence is contrary to the version of the claimants in
the claim petition and the lorry had suddenly applied break and therefore,
the rider of the two wheeler lost control and rammed into the lorry.
The learned counsel further submitted that since the entire negligence is
on the rider of the two wheeler, the Tribunal erred in fixing only 25%
contributory negligence on the deceased who is the rider of the
motorcycle.
12. The learned counsel for the claimants in C.M.A.No.1117 of
2023 submitted that the evidence of eye-witness would clearly show that
the tanker lorry was driven in a rash manner and since the driver had
applied break suddenly, the rider of the motorcycle dashed behind the
lorry. The learned counsel further submitted that the Tribunal after
considering the evidence had finally held that the accident that took place
predominantly due to the negligence of the rider of the motorcycle as
well as driver of the tanker lorry and fixed contributory negligence of
25% on the rider of the two wheeler. The learned counsel further
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CMA Nos. 1110 & 1117 of 2023
submitted that the deceased was working as a mechanic in a puncher
shop and earning more than Rs.15,000/- per month.
The claimants produced Ex.P.10/salary certificate to prove the income of
the deceased. The notional income fixed by the Tribunal at Rs. 8,000/-
per month is meagre and in fact, the claimants are entitled to more
compensation than the amount awarded by the Tribunal.
13. Though notices have been sent to the seventh respondent in
C.M.A.No.1117 of 2023 and Respondents 1 to 5 in C.M.A.No.1110 of
2023, none has entered appearance on behalf of them.
14. The questions involved in the instant appeals are :
(a) Whether the Tribunal was correctly in fixing the contributory
negligence on the rider of the two wheeler?
(b) Whether the compensation awarded by the Tribunal is just and
reasonable ?
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
15. As regards the first question, it is seen that Ex.P.1/ FIR lodged
by the father of the deceased Ibrahim/rider of the motorcycle that the
offending vehicle namely the tanker lorry was moving and the deceased
in his bike had rammed into the said lorry. Ex.R.1/Final Report reveals
that pursuant to the investigation, it was found that the rider of the two
wheeler was guilty of negligence and hence, the case was closed.
However, this Court is conscious of the fact that the Tribunal has to
independently determine the question of negligence and not be bound by
the final report or the statements made before the Police.
16. Both the claimants examined eye-witness to the occurrence.
P.W.2 in M.C.O.P.No.436 of 2019 (C.M.A.No.1117 of 2023) had stated
that the offending vehicle had applied brake suddenly whereas,
the eye-witness, P.W.2 in M.C.O.P.No.380 of 2019/C.M.A.No.1110 of
2023 had stated that the two wheeler dashed from behind. There is
contradiction in the evidence of eye-witnesses examined on the side of
the claimants in their respective petitions. R.W.2, the driver of the
offending vehicle deposed that he was going slowly and he heard a
sound, and saw that a motorcycle hit the lorry from behind and that
several bikers were going on a race on that day. In the cross examination,
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CMA Nos. 1110 & 1117 of 2023
R.W.2 had admitted that he was driving the vehicle continuously from
10 A.M, the previous day. The accident occurred on 02.06.2019 at about
2.00 A.M. The driver also admitted that there was no other driver in the
lorry. The R.W.2/driver of the lorry had denied the suggestion that he
had dozed off because of continuous driving.
17. The Tribunal however, held that there was every possibility
that the driver/R.W.2 had slept while driving the lorry and hence, the
accident took place due to the negligent act of the driver of the lorry.
This Court is of the view that such an inference cannot be made in the
absence of any evidence. The rough sketch/Ex.R.2 shows that the lorry
went on the extreme left of the road. The evidence suggests that there is a
high probability of lapse in concentration of the driver in view of the
continuous driving. The evidence suggests that the lorry had slowed
down at the time of accident. However, on the consideration of the
evidence of eye-witnesses in both the claim petitions, the evidence of
R.W.2/the driver, rough sketch and the final report filed by the Police,
this Court is of the view that the accident did not occur predominantly
due to the negligence of the driver of the tanker lorry. The rider of the
two wheeler namely Ibrahim was mainly responsible for the accident. He
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CMA Nos. 1110 & 1117 of 2023
ought to have maintained safe distance and ought to have exercised due
care and caution, maintainted an average speed especially while riding
during night hours. On an overall consideration of the evidence, this
Court is of the view that both the driver of the lorry and the rider of the
two wheeler are guilty of negligence. This Court is of the view that the
contribution of the rider of the two wheeler is more than the contribution
of the lorry driver for the accident. Therefore, in the facts and
circumstances of this case, it would be just and reasonable to fix 60 %
contributory negligence on the rider of the two wheeler and 40 % on the
lorry driver. Since the liability of lorry driver is fixed as 40%, the
appellant is only liable to pay 40% of the compensation amount to the
respondents. However, the respondents in C.M.A.No.1110 of 2023 who
are the legal heirs of the pillion rider are entitled to recover the balance
60 % only from the insurer of the two wheeler subject to policy
conditions. However, since the insurer of the two wheeler is not a party,
no such directions can be issued by this Court in the instant appeals.
18. As regards quantum, this Court finds that the deceased in
C.M.A.No.1110 of 2023 was working as a Mechanic in a Puncher Shop.
The Tribunal had taken the notional income as Rs.8,000/- for an accident
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CMA Nos. 1110 & 1117 of 2023
which took place in the year 2019. Considering the age of the victim his
avocation prior to his death and the year of accident and in similar
circumstances, this Court had fixed between Rs.12,000/- to Rs.15,000/-
per month as notional income, this Court is of the view that it would be
reasonable to fix Rs.12,000/- per month as notional income of the
deceased.
19. Likewise, the deceased in C.M.A.No.1117 of 2023 also was
working as a Mechanic in Puncher Shop. For the aforesaid reasons,
the notional income has to be fixed as Rs.12,000/- per month even for
him. Thus, the amount awarded by the Tribunal towards loss of
dependency is calculated as follows:
C.M.A.No.1110 of 2023
12000 + 4800 (12000 X 40%) X 12 X 17 X ½ = 17,13,600/-
C.M.A.No.1117 of 2023
12000 + 4800 (12000 X 40%) X 12 X 18 X ½ = 18,14,400/-
The amounts awarded under other heads are just and reasonable.
Thus, the award of compensation awarded by the Tribunal in
M.C.O.P.Nos.380 of 2019 and 436/2019 are modified as follows:
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
C.M.A.No.1110 of 2023
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of 11,42,400/- 17,13,600/- enhanced
Dependency
2. Parental 80,000/- 80,000/- confirmed
Consortium
3. Transportation 5,000/- 5,000/- confirmed
4. Funeral 15,000/- 15,000/- confirmed
expenses
5. Loss of estate 15,000/- 15,000/- confirmed
6. Medical Bills --- --- ---
Total 12,57,400/- 18,28,600/-
Less: 10% Less: 60%
towards towards
contributory contributory
negligence negligence
Rs.1,25,740 Rs.10,97,160
Grand Total Rs.11,31,660/- Rs.7,31,440/- Reduced by
Rs.4,00,220/-
C.M.A.No.1117 of 2023
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of 12,09,600/- 18,14,400/- enhanced
Dependency
2. Parental 80,000/- 80,000/- confirmed
Consortium
3. Transportation 5,000/- 5,000/- confirmed
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CMA Nos. 1110 & 1117 of 2023
4. Funeral 15,000/- 15,000/- confirmed
expenses
5. Loss of estate 15,000/- 15,000/- confirmed
6. Medical Bills --- --- ---
Total 13,24,600/- 19,29,400/-
Less: 25% Less: 60 %
Contributory Contributory
Negligence Negligence
Rs.3,31,150/- 11,57,640/-
Grand Total Rs.9,93,450/- Rs.7,71,760/- Reduced by
Rs.2,21,690/-
20.With the above modifications-
(i) C.M.A. No. 1110 of 2023 is partly allowed and the
compensation awarded by the Tribunal at Rs.11,31,660/- is reduced to
Rs.7,31,440/- together with interest and costs (excluding the default
period, if any) from the date of petition till the date of deposit.
(ii) C.M.A.No. 1117 of 2023 is partly allowed and the
compensation awarded by the Tribunal at Rs.9,93,450/- is reduced to
Rs.1,78,000/- together with interest and costs (excluding the default
period, if any) from the date of petition till the date of deposit.
21.The appellant/Insurance Company is directed to deposit the
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CMA Nos. 1110 & 1117 of 2023
award amount in both the appeals, now determined by this Court along
with interest and costs, less the amounts already deposited, if any, within
a period of six (6) weeks from the date of a receipt of copy of this
common Judgment. On such deposit the respondents/claimants in both
the appeals are permitted to withdraw their share of the award amount
along with proportionate interest and costs, as per the apportionment
fixed by the Tribunal, less the amount if any, already withdrawn. The
appellant/insurance company is permitted to withdraw the excess amount
lying in the deposit, if the entire award amount has already been
deposited by them. No costs. Consequently, connected miscellaneous
petitions are closed.
14.08.2023
dk
Index : Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
https://www.mhc.tn.gov.in/judis
CMA Nos. 1110 & 1117 of 2023
SUNDER MOHAN, J
dk
To
1. The Additional District Judge,
MACT – Hosur.
2. The Section Officer,
VR Section
High Court of Madras.
Civil Miscellaneous Appeal Nos. 1110 & 1117 of 2023
and C.M.P.Nos.10739 & 10810 of 2023
Dated: 14.08.2023
https://www.mhc.tn.gov.in/judis
