Madras High Court
S.Rohinth vs P.A. Lakshminarayanan on 28 August, 2023
CMA Nos. 1814 & 364 / 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.08.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal Nos. 1814 & 364 of 2023
and
C.M.P. No. 3080 of 2023
C.M.A. No. 1814 of 2023:
S.Rohinth ... Appellant
Versus
1.P.A. Lakshminarayanan,
Proprietor,
Shree Lakshmi Narayanan Transport,
No.14, Ravathanallur Colony,
1st Street, Charapakkam,
Kancheepuram District – 603 3901.
2.National Insurance Co.Ltd.,
No.751, 3rd floor, Anna Salai,
Chennai – 600 002. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree dated
24.10.2018 made in M.C.O.P. No. 4454 of 2015 on the file of the Motor
Accident Claims Tribunal, V Small Causes Court, Chennai.
For Appellant : Mr. K. Varadha Kamaraj.
https://www.mhc.tn.gov.in/judis
CMA Nos. 1814 & 364 / 2023
For Respondents : Mr. P. Sankaranarayanan for R2.
R1 – Exparte.
C.M.A. No. 364 of 2023:
National Insurance Co.Ltd.,
No.751, 3rd floor, Anna Salai,
Chennai – 600 002.
Now at
National Insurance Co.Ltd.,
Motor 3rd Party Claim Cell,
No.66, Greams Road,
Chennai – 6. ... Appellant
Versus
1.R. Franis Mary
2.D. Ravi
3.P.A. Lakshminarayanan,
Proprietor,
Shree Lakshmi Narayanan Transport,
No.14, Ravathanallur Colony,
1st Street, Charapakkam,
Kancheepuram District – 603 3901. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree dated
24.10.2018 made in M.C.O.P. No. 4453 of 2015 on the file of the Motor
Accident Claims Tribunal, V Small Causes Court, Chennai.
For Appellant : Mr. P. Sankaranarayanan.
For Respondents : Mr. K. Varadha Kamaraj for R1 & R2.
R3 – Exparte.
https://www.mhc.tn.gov.in/judis
CMA Nos. 1814 & 364 / 2023
COMMON JUDGMENT
C.M.A. No. 1814 of 2023 has been filed by the claimant challenging
the award passed by the Tribunal in M.C.O.P. No. 4454 of 2015 dated
24.10.2018 and C.M.A. No. 364 of 2023 has been filed by the insurance
company challenging the award passed by the Tribunal in M.C.O.P. No.
4453 of 2015 dated 24.10.2018. Since both the appeals arise out of the
same accident and common order has been passed by the Tribunal, they
are taken up together for disposal.
2.The appellant in C.M.A. No. 1814 of 2023 and the respondents 1
and 2 in C.M.A. No. 364 of 2023 have filed claim petitions seeking
compensation stating that on 18.04.2015, when the appellant in C.M.A.
No. 1814 of 2023 was riding the motorcycle bearing Registration No.TN
22 CL 7917 along with one Minor Immanuel, (the deceased) who was the
pillion rider in OMR road in front of Jain college, Thoripakkam from South
to North direction, a water tanker lorry bearing Registration No.TN 19 V
2436 driven by its driver in a rash and negligent manner from South to
North direction, dashed on the motorcycle as a result of which the Minor
Immanuel and the appellant in C.M.A. No. 1814 of 2023 sustained severe
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CMA Nos. 1814 & 364 / 2023
injuries and was admitted in the hospital and the said Immanuel died on
the next day.
3.The first respondent in C.M.A. No. 1814 of 2023 / third
respondent in C.M.A. No. 364 of 2023 remained ex parte before the
Tribunal.
4.The second respondent in C.M.A. No. 1814 of 2023 / appellant in
C.M.A. No. 364 of 2023 filed counter stating that the accident occurred
due to the rash and negligent riding of the appellant in C.M.A. No. 1814 of
2023; that he was a minor and at the time of accident did not possess valid
driving license; that the vehicle is not insured at the time of the accident;
hence, 2nd respondent is not liable to pay compensation; and that in any
case, the compensation claimed was excessive and prayed for dismissal of
the claim petitions.
5.The appellant in C.M.A. No. 1814 of 2023 and the respondents 1
and 2 in C.M.A. No. 364 of 2023 examined four witnesses on their side as
PW1 to PW4 and marked Ex.P.1 to Ex.P.19. On the side of the appellant
in C.M.A. No. 364 of 2023 / second respondent in C.M.A. No. 1814 of
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CMA Nos. 1814 & 364 / 2023
2023, neither any witness was examined nor any document was marked.
6.The Tribunal after considering the oral and documentary evidence
found that the accident occurred due to the rash and negligent driving of
the driver of the lorry as well the appellant in C.M.A. No. 1814 of 2023
who rode the motor cycle and fixed 50% contributory negligence on the
driver of the lorry and 50% contributory negligence on the appellant in
C.M.A. No. 1814 of 2023 and directed the second respondent in C.M.A.
No. 1814 of 2023 / appellant in C.M.A. No. 364 of 2023 to pay a
compensation of Rs.12,04,700/- to the respondents 1 and 2 in C.M.A. No.
364 of 2023 and a sum of Rs.57,750/- to the appellant in C.M.A. No. 1814
of 2023. Aggrieved by the said common award, the appellants have filed
the instant appeals.
7.The learned counsel for the insurance company in both the appeals
submitted that the Tribunal ought to have fixed contributory negligence on
the side of the deceased who was a pillion rider; since he was aware that
the rider of the motorcycle was aged 14 years and did not have a valid
driving license to ride the motorcycle; The learned counsel submitted that
in the instant case the pillion rider (minor aged 14 years) was equally guilty
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CMA Nos. 1814 & 364 / 2023
of contributory negligence by travelling in a vehicle ridden by his friend
who was a minor and he had no valid license. The learned counsel further
submitted that the appellant / insurance company would at best be liable to
pay only 50% of the award amount towards the negligence apportioned on
the driver of the offending vehicle in respect of C.M.A. No. 364 of 2023.
8.(a) The learned counsel for the appellant in C.M.A. No. 1814 of
2023 submitted that the appeal has been filed challenging the finding of
fixing 50% contributory negligence on the appellant only because he did
not have a valid driving license although there is no evidence to show that
the appellant had contributed to the accident. The learned counsel further
submitted that the Tribunal found that the appellant suffered 20%
disability and awarded Rs.3,000/- per percentage of disability though the
appellant was entitled to Rs.4,000/- per percentage of disability as per the
decisions of this Court.
8.(b).As regards the appeal filed by the insurance company in
C.M.A. No. 364 of 2023, the learned counsel for the respondents 1 and 2
relied on the Judgment of this Court in Tamil Nadu State Transport
Corporation Ltd., Vs. Vasantha and others reported in 2022 (2) TN MAC
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CMA Nos. 1814 & 364 / 2023
289 in support of his submissions that in the absence of any evidence to
show that the deceased / pillion rider contributed to the accident in any
manner, the Tribunal was right in fixing the entire liability on the driver of
the offending vehicle and no interference is called for.
9.The questions that arise for consideration in the instant appeals are;
(a)Whether the Tribunal was right in fixing 50% contributory
negligence on the rider of the two wheeler / appellant in C.M.A.
No. 1814 of 2023?
(b)Whether the Tribunal ought to have fixed contributory
negligence on the pillion rider while awarding compensation to
his legal heirs in C.M.A. No. 364 of 2023?
(c)Whether the quantum of compensations awarded by the
Tribunal in both the claim petitions are just and reasonable?
10.As regards the first question, it is seen that the appellant in
C.M.A. No. 1814 of 2023 has examined PW1 to PW4 to prove the manner
of accident. The Tribunal found on perusal of the above evidence that the
accident occurred due to the rash and negligent driving of the driver of the
offending vehicle insured with the second respondent in C.M.A. No. 1814
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CMA Nos. 1814 & 364 / 2023
of 2023 as well the rider of the motorcycle / appellant in CMA No.1814 of
2023. The evidence shows that while the deceased and the rider in the
motor cycle were travelling on the OMR road in front of Jain college,
Thoripakkam from South to North direction, the lorry came in the same
direction from behind and rammed into the two wheeler. The driver of the
lorry was not examined before the Tribunal. The appellant had also
marked the FIR and final report which suggest that the negligence is on the
part of the driver of the lorry. However, considering the fact that the
appellant who rode the two wheeler did not have a valid license and that he
was 14 years old at the time of the accident, this Court is of the view that it
would be just and reasonable to fix the contributory negligence on the part
of the rider of the two wheeler at 20% taking into consideration the
decision of this Court in similar circumstances. Thus, the finding of the
Tribunal fixing 50% contributory negligence on the appellant is reduced to
20%.
11.The contention of the learned counsel for the respondents 1 and 2
in C.M.A. No. 364 of 2023 that even assuming that the rider of the two
wheeler had contributed to the accident to the extent of 20%, the pillion
rider is entitled to file the claim petition against either the tort feasor or
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CMA Nos. 1814 & 364 / 2023
both the tort feasor and the insurer of the vehicle; that the appellant being
the insurer of the tort feasor's vehicle is liable to pay the entire
compensation amount. There cannot be any quarrel with the said
proposition of law. However, in the instant case, it is seen that the pillion
rider was also aged 14 years. He is the friend of the rider of the two
wheeler who was aged 14 years at the time of the accident. The pillion
rider in the said circumstances had also contributed to the accident as he
had knowingly travelled in the vehicle ridden by a minor without license
and hence, he would also be liable for contributory negligence in the same
manner as the rider of the two wheeler. Therefore, 20% contributory
negligence is fixed on the pillion rider as well.
12.The quantum of compensation awarded by the Tribunal in so far
as the deceased pillion rider in C.M.A. No. 364 of 2023 is concerned, is not
questioned by either of the parties. However, legal heirs of the pillion rider
who are the respondents 1 and 2 in C.M.A. No. 364 of 2023 would be
entitled to 80% compensation amount determined by the Tribunal which
comes to Rs.9,63,760/-. Hence, the compensation awarded in
M.C.O.P.4453 of 2015 is reduced from Rs.12,04,700/- to Rs.9,63,760/-.
13.As regards the compensation in respect of rider of the two
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CMA Nos. 1814 & 364 / 2023
wheeler in C.M.A. No. 1814 of 2023 is concerned, he is entitled to
Rs.4,000/- per percentage of disability and hence, the compensation under
the head disability is enhanced from Rs.60,000/- to Rs.80,000/-. The award
under the other heads are just and the same are confirmed. Thus, the award
of the Tribunal is modified as follows;
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Pain and sufferings 20,000 20,000 Confirmed
2. Transport and extra 10,000 10,000 Confirmed
nourishment
3. Disability 60,000 80,000 Enhanced
4. Tuition charges 5,000 5,000 Confirmed
5. Attender charges 500 500 Confirmed
6. Loss of amenities 10,000 10,000 Confirmed
7. Medical Expenses 10,000 10,000 Confirmed
Total 1,15,500 1,35,500
After deducting 50% 57,750
contributory negligence
fixed by the tribunal
After deducting 20% 1,08,400 Enhanced by
contributory negligence Rs.50,650/-
fixed by this Court
14.With the above modification, C.M.A. No. 1814 of 2023 is partly
allowed and the compensation awarded by the Tribunal at Rs.57,750/- is
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CMA Nos. 1814 & 364 / 2023
hereby enhanced to Rs.1,08,400/- together with interest at 7.5% per annum
(excluding the default period if any) from the date of petition till the date of
deposit and C.M.A. No. 364 of 2023 is partly allowed and the
compensation awarded by the Tribunal at Rs.12,04,700/- is hereby reduced
to Rs.9,63,760/- together with interest at 7.5% per annum (excluding the
default period if any) from the date of petition till the date of deposit. The
second respondent in C.M.A. No. 1814 of 2023 / appellant in C.M.A. No.
364 of 2023 is directed to deposit the award amounts 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 a receipt of copy
of this Judgment. On such deposit, the appellant in C.M.A. No. 1814 of
2023 is permitted to withdraw the award amount along with interest and
costs after adjusting the amount, if any already withdrawn. The
respondents 1 and 2 in CMA No.364 of 2023, are permitted to withdraw
their respective shares along with proportionate interest and costs, less the
amount if any, already withdrawn. The appellant in C.M.A. No. 1814 of
2023 is directed to pay the necessary court fee if any on the enhanced
award amount. The appellant / insurance company in C.M.A. No. 364 of
2013 is permitted to withdraw the excess amount lying in the credit of
MCOP No.4453 of 2015, if the entire amount had already been deposited
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CMA Nos. 1814 & 364 / 2023
by them. No costs. Consequently, the connected Miscellaneous petition is
closed.
28.08.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
1. The Motor Accident Claims Tribunal,
V Small Causes Court,
Chennai.
2. The Section Officer,
V.R. Section,
High Court of Madras,
Chennai.
https://www.mhc.tn.gov.in/judis
CMA Nos. 1814 & 364 / 2023
SUNDER MOHAN, J
ay
C.M.A. No. 1814 & 364 of 2023
and
C.M.P. No. 3080 of 2023
Dated: 28.08.2023
https://www.mhc.tn.gov.in/judis
