Madras High Court

A. Thirunavukkarasu vs S. Sheik Mohideen on 24 August, 2023

                                                                                  C.M.A.No.1951 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 24.08.2023

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                C.M.A.No.1951 of 2023

                     1.A. Thirunavukkarasu
                     2.T. Kasturi                                                   ... Appellants

                                                           Vs

                     1.S. Sheik Mohideen

                     2.The Divisional Manager,
                       The New India Assurance Co. Ltd.,
                       DO III Floor, No.179, JN Street,
                       Puducherry – 605 001.                                      ... Respondents

                     Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
                     Vehicles Act, 1988, against the judgment and decree dated 23.04.2022 in
                     MCOP.No.3421 of 2017 on the file of the Motor Accident Claims Tribunal,
                     (Special Sub Judge for LAOP Cases), Cuddalore.

                                        For Appellants          : Mrs.Ramya V. Rao

                                        For Respondents         : Mrs.R. Sree Vidhya, for R2
                                                                  R1 – Ex parte




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                                                                                 C.M.A.No.1951 of 2023

                                                    JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellants

challenging the quantum of compensation granted by the Tribunal in the

award dated 23.04.2022 made in M.C.O.P.No.3421 of 2017 on the file of

the Motor Accident Claims Tribunal, (Special Sub Judge for LAOP Cases),

Cuddalore.

2. The appellants filed M.C.O.P. No.3421 of 2017 on the file of

the the Motor Accident Claims Tribunal (Special Sub Judge for LAOP

Cases), Cuddalore claiming a sum of Rs.25,00,000/- as compensation for

the death of one Kabilar @ Kabil, who died in the accident that took place

on 23.07.2017.

3. According to the appellants, on 23.07.2017 at about 10.45

hours, while the deceased Kabilar was riding a two wheeler bearing

Registration No.TN-37-AE-7085 on the Tiruchengode to Erode road, near

Murasukuttai Diversion road, Kuchipalayam, the car bearing Registration

No.TN-86-A-9981, which was coming in opposite direction, driven by its

https://www.mhc.tn.gov.in/judis C.M.A.No.1951 of 2023

driver in a rash and negligent manner, hit against the motorcycle and caused

the accident; that in the above said accident; the deceased Kabilar sustained

grievous injuries; that immediately he was admitted in the Government

Hospital, Erode and died on the same day. Hence, the appellants filed claim

petition claiming compensation against the respondents.

4. The first respondent remained ex parte before the Tribunal.

5. The second respondent filed counter statement denying all the

averments made by the appellants in the claim petition. According to the

second respondent, the rider of the two wheeler rode the motorcycle in a

rash and negligent manner along with three pillion riders and invited the

accident; and in any case the compensation claimed by the appellants is

excessive and prayed for dismissal of the claim petition.

6. The 2nd appellant examined herself as PW1 and marked Ex.P.1

to Ex.P.8. The second respondent, did not examine any witness or marked

any document.

https://www.mhc.tn.gov.in/judis C.M.A.No.1951 of 2023

7. The Tribunal after considering the evidence and documents

filed on the side of the appellants, held that the accident occurred due to

rash and negligent driving by the driver of the car and directed the second

respondent to pay a sum of Rs.14,30,100/- as compensation to the

appellants.

8. Aggrieved by the said award, the appellants have preferred the

present appeal seeking enhancement of compensation.

9. The learned counsel for the appellants submitted that though

the appellants had stated that the deceased was employed in a Spinning

Mill, the Tribunal had taken a very meagre notional income of Rs.10,000/-

per month. The learned counsel further submitted that the filial consortium

was awarded to the only one appellant and both are entitled to Rs.40,000/-

each. The learned counsel further submitted that the Tribunal had

erroneously fixed 10% contributory negligence on the deceased without any

basis and prayed for enhancement of the compensation.

https://www.mhc.tn.gov.in/judis C.M.A.No.1951 of 2023

10. Since the first respondent remained ex parte before the

Tribunal, the learned counsel for the appellants prayed for dispensing with

notice to him. Hence, notice to the first respondent dispensed with.

11. The learned counsel for the second respondent per contra

submitted that the award of the Tribunal is just and reasonable. The

appellants have not produced any evidence to prove the income or avocation

of the deceased. Therefore, the Tribunal was justified in fixing the notional

income as Rs.10,000/- per month. That apart, the Tribunal had fixed 10%

contributory negligence on the deceased for violating the rules under the

Motor Vehicles Act, since four persons travelled in a two wheeler along

with the deceased and the deceased also did not wear helmet at the time of

accident. Thus, the order of the Tribunal does not warrant any interference

and hence, prayed for dismissal of the appeal.

12. The questions involved in the instant appeal are-

1. Whether the Tribunal was right in fixing 10% contributory negligence on the deceased?

2. Whether the Tribunal had awarded just and reasonable compensation?

https://www.mhc.tn.gov.in/judis C.M.A.No.1951 of 2023

13. As regard first question, this Court finds that the evidence let

in on either side revealed that the deceased did not wear helmet at the time

of accident. Ex.P1, FIR shows that 4 persons travelled in a two wheeler

including the deceased. In view of the aforesaid violation, the Tribunal was

justified in fixing 10% contributory negligence on the part of the deceased

and no interference is called for.

14. As regards quantum of compensation, this Court finds that

though the appellants had not proved the income of the deceased, PW.1 had

stated that the deceased was working in a Spinning Mill. The deceased was

aged 24 years at the time of accident. Considering the age, avocation and

the year of accident, this Court is of the view that it would be just and

reasonable to fix the notional income as Rs.14,000/- per month. The

appellants are entitled to 40% enhancement towards future prospects. The

multiplier applicable is '18'. The deceased was a bachelor at the time of

accident and hence, 50% has to be deducted towards his personal expenses.

Thus, the compensation amount towards loss of dependency has to be: -

14,000+5,600(14,000X40%)x12x18x1/2=Rs.21,16,800/-

The award under the head filial consortium has to be enhanced to

https://www.mhc.tn.gov.in/judis C.M.A.No.1951 of 2023

Rs.80,000/-, as both the appellants are each entitled to Rs.40,000/-. The

award under the heads loss of estate and funeral expenses are reduced to

Rs.15,000/- each. Thus, the compensation awarded by the Tribunal is

enhanced from Rs.14,30,100/- to Rs.20,04,120/-, break-up is as follows -

                            Sl. Description             Amount         Amount         Award
                            No                         awarded by    awarded by    confirmed or
                                                        Tribunal      this Court   enhanced or
                                                          (Rs)           (Rs)        granted
                            1.    Loss of dependency   15,12,000/-   21,16,800/-     Enhanced
                            2.    Loss of estate        16,500/-      15,000/-      Confirmed
                            2.    Loss of filial        44,000/-       80,000/-     Confirmed
                                  consortium
                            3.    Funeral expenses      16,500/-      15,000/-      Confirmed
                                          Total        15,89,000/-   22,26,800/-
                                       Less 10%        1,58,900/-     2,22,680/-   Enhanced by
                                      Contributory                                 Rs.5,74,020/-
                                      Negligence
                                  Net Compensation      14,30,100    20,04,120/-

16. With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.14,30,100/- is hereby enhanced to Rs.20,04,120/- together with interest

at 7.5% per annum from the date of petition till the date of deposit. The

appellants are not entitled for any interest for the delay period on the

amount of Rs.5,74,020/- enhanced by this Court as per the order of this

https://www.mhc.tn.gov.in/judis C.M.A.No.1951 of 2023

Court dated 07.08.2023, made in C.M.P.No.11786 of 2023 in

C.M.A.SR.No.70015 of 2023. The second respondent / Insurance Company

is directed to deposit the award amount, now determined by this Court along

with interest and costs, less the amount already deposited, if any, within a

period of six (6) weeks from the date of a receipt of copy of this Judgment.