Madras High Court

Dy. C.M.M vs Josephine on 25 August, 2023

                                                                C.M.A.Nos.1943 of 2023 & 2910 of 2022
                                                                          and C.M.P.No.18863 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 25.08.2023

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                        C.M.A.Nos.1943 of 2023 & 2910 of 2022
                                            and C.M.P.No.18863 of 2023



                  C.M.A. No. 1943 of 2023:
                  Dy. C.M.M.
                  Shell Depot,
                  I.C.F. Chennai – 600 038.                                        ... Appellant


                                                       Versus

                  1.Josephine
                  2.N.Murali,                                                   ... Respondents

PRAYER : Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the award dated 25.08.2022 passed by the Motor Accidents Claims Tribunal, (Special Sub Court No.1, Small Causes Court, Chennai in M.C.O.P.No.2040 of 2017)

https://www.mhc.tn.gov.in/judis C.M.A.Nos.1943 of 2023 & 2910 of 2022 and C.M.P.No.18863 of 2023

For Appellant : Mr.A.R.Sakthivel For Respondents : R1 - M/s.K.Varadha Kamaraj R2 – Notice not ready

C.M.A. No. 2910 of 2022:

                  Josephine                                                    ... Appellant


                                                        Versus

                  1.Dy. C.M.M.
                    Shell Depot,
                    I.C.F. Chennai – 600 038.

                  2.N.Murali                                                   ...Respondents

PRAYER : Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the decree and Judgment dated 25.08.2022 made in M.C.O.P.No.2040 of 2017 on the file of Motor Accidents Claims Tribunal (Small Causes Court, Special Sub Court No.1), Chennai.

                                       For Appellant         : Mr. K.Varadha Kamaraj
                                       For Respondents       : R1 – Mr.A.R.Sakthivel
                                                                 R2 – Notice not ready








https://www.mhc.tn.gov.in/judis
                                                                  C.M.A.Nos.1943 of 2023 & 2910 of 2022
                                                                            and C.M.P.No.18863 of 2023



                                          COMMON JUDGMENT

(Both these appeals arise out of the same award and hence these

appeals are disposed of by this Common Judgment. For the sake of

convenience, parties are referred to as per their rank in the claim petition.)

C.M.A.No.1943 of 2023 has been filed by the

owner of the mini lorry/Dy.C.M.M, Shell Depot, challenging the liability as

well as the quantum of compensation awarded by the Tribunal.

2. C.M.A.No.2910 of 2022 has been filed by the claimant/mother of the

deceased seeking enhancement of the compensation awarded by the Tribunal.

3. The claimant filed the petition seeking compensation stating that on

26.09.2016, at about 10.50 hours, while the deceased Mr.Vijay was riding a

motorcycle bearing Reg.No.TN 05 AS 7628 on a public road, a Mini Lorry

bearing Reg.No.TN 05 AB 2764 belonging to the ICF, came in a rash and

negligent manner and dashed against the two wheeler of the deceased, as a

result of which, the deceased sustained fatal injuries.

https://www.mhc.tn.gov.in/judis C.M.A.Nos.1943 of 2023 & 2910 of 2022 and C.M.P.No.18863 of 2023

4. The DY.C.M.M/ICF, resisted the claim petition and stated that the

accident took place only on account of the negligence of the rider of the two

wheeler; that they were not liable to pay compensation to the claimant; and

that in any case, the claim made by the claimant is excessive and prayed for

dismissal of the claim petition.

5. The second respondent in both the appeals/driver of the offending

vehicle, remained ex-parte before the Tribunal.

6. The claimant examined two witnesses as P.W.1 and P.W.2 and

marked seven documents as Exs.P1 to P7. The first respondent examined

R.W.1 and marked three documents as Exs.R1 to R3.

7. The Tribunal after considering the oral and documentary evidence

held that the accident occurred due to rash and negligent driving of the driver

of the mini lorry as well the deceased, fixed 90% on the driver of the mini

lorry and 10% on the deceased and directed the first respondent to pay a

compensation of Rs.14,23,800/- to the claimant, since the vehicle was not

insured with any Insurance Company.

https://www.mhc.tn.gov.in/judis C.M.A.Nos.1943 of 2023 & 2910 of 2022 and C.M.P.No.18863 of 2023

8. The learned counsel for the first respondent/owner of the offending

vehicle submitted that the Tribunal having found that the deceased was a

minor who did not have a valid driving license at the time of the accident

ought to have fixed a higher contributory negligence, instead of 10%.

The learned counsel for the first respondent further submitted that monthly

notional income fixed on the deceased at Rs.10,000/- is on the higher side

and prayed for the reduction of compensation.

9. The learned counsel for the claimant submitted that the Tribunal

ought not to have fixed 10% negligence on the deceased since the accident

took place entirely due to the fault of the driver of the offending vehicle. The

learned counsel relied upon the Judgment of this Court in Tamil Nadu State

Transport Corporation Ltd., Vs. Vasantha reported in 2022 (2) TN MAC

289 in support of his submission. The learned counsel further submitted that

the notional income fixed by the Tribunal was also meagre and prayed for

enhancement of compensation.

https://www.mhc.tn.gov.in/judis C.M.A.Nos.1943 of 2023 & 2910 of 2022 and C.M.P.No.18863 of 2023

10. Since the second respondent in both the appeals remained exparte

before the Tribunal, the learned counsel for the claimant submitted that notice

to the second respondent may be dispensed with. Accordingly notice to the

second respondent was dispensed with vide this Court order dated

09.08.2023 in C.M.P.No.17858 of 2023 in C.M.A.SR.No.81930 of 2023.

11. Heard the learned counsel for the claimant as well as the

first respondent and perused the materials available on record.

12. This Court finds that admittedly the deceased was a minor who

did not have a valid driving license at the time of the accident. This Court in a

decision reported in 2022 (2) TN MAC 289 (Tamil Nadu State Transport

Corporation Ltd., Vs. Vasantha) on facts held that merely because the

deceased was a minor and he did not have a valid driving license,

negligence cannot be attributed automatically. The fixation of contributory

negligence would depend on facts and circumstances of each case. In the

instant case, this Court finds that the deceased was a minor and admittedly

did not have a valid driving license. The driver of the offending vehicle had

https://www.mhc.tn.gov.in/judis C.M.A.Nos.1943 of 2023 & 2910 of 2022 and C.M.P.No.18863 of 2023

come from behind and rammed into the two-wheeler of the deceased.

This Court in several cases had fixed 20% contributory negligence in the case

of an adult driving/riding without valid license and for not wearing helmet.

There is no evidence let in on either side regarding whether the deceased

wore a helmet at the time of the accident or not. However, the deceased,

a minor, was not entitled to ride a two-wheeler without license. Considering

the view taken by this Court in several cases that contributory negligence can

be fixed for the said statutory violation, this Court is of the view in the facts

that 20% contributory negligence can be fixed on the deceased for the

violation committed by him.

13. As regards compensation, this Court is of the view that the Tribunal

had correctly fixed the notional income and awarded compensation and there

is no reason to interfere with the same. Hence, the same is confirmed.

14. Since 20% contributory negligence is fixed on the rider of the

two wheeler/deceased, the first respondent is directed to deposit 80% of the

https://www.mhc.tn.gov.in/judis C.M.A.Nos.1943 of 2023 & 2910 of 2022 and C.M.P.No.18863 of 2023

compensation. Thus, the compensation awarded by the Tribunal is reduced

from Rs.14,23,800/- to Rs.12,65,600/-.

                         S. Description              Amount             Amount            Award
                         No.                        awarded by        awarded by       confirmed or
                                                     Tribunal          this Court      enhanced or
                                                       (Rs)               (Rs)           granted
                         1.       Total Loss of        15,12,000/-      15,12,000/-      Confirmed
                                  Dependency
                         2.       Loss of                 40,000/-          40,000/-     Confirmed
                                  Consortium
                         3.       Loss of Estate          15,000/-          15,000/-     Confirmed
                         4.       Funeral                 15,000/-          15,000/-     Confirmed
                                  Expenses
                                  Total               15,82,000/-       15,82,000//-


                                                   Less : 10%        Less : 20%
                                                   contributory      contributory
                                                   negligence        negligence
                                                    Rs.1,58,200/-    Rs.3,16,400/-
                                  Net               Rs.14,23,800/- Rs.12,65,600/- Reduced by
                                  Compensation                                    Rs.1,58,200/-
                                  payable to
                                  claimant








https://www.mhc.tn.gov.in/judis
                                                                       C.M.A.Nos.1943 of 2023 & 2910 of 2022
                                                                                 and C.M.P.No.18863 of 2023

                  In the result:

(i) CMA No.1943 of 2023 is partly allowed by fixing 20% contributory

negligence on the deceased and reducing the compensation awarded by the

Tribunal from Rs.14,23,800/- to Rs.12,65,600/- together with interest at 7.5%

per annum (excluding the default period, if any) from the date of petition till

the date of deposit..

(ii) CMA No.2910 of 2022 is dismissed.

(iii) The first respondent/owner of the offending vehicle 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 four

(4) weeks from the date of receipt of a copy of this Judgment. On such

deposit, the claimant is permitted to withdraw the award amount, with

interest and costs, less the amount if any, already withdrawn.