Madras High Court

Dhayanithi vs K.T.S.Enterprises on 30 August, 2023

                                                                                      CMA No. 1823 / 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 30.08.2023

                                                           CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                        Civil Miscellaneous Appeal No. 1823 of 2022

                     Dhayanithi                                       ... Appellant
                                                             Versus

                     1. K.T.S.Enterprises, (Ex-parte)
                        No. 1, G/A, Hari Mansion, J.P.Avenue,
                        Dr.Radhakrishnan Road,
                        Mylapore,
                        Chennai – 600 004.

                     2. United India Insurance Co. Ltd.,
                        Silingai Building,
                        Regional Office, Motor TP Hub,
                        No. 134, Greams Road,
                        Chennai – 600 006.                               ... Respondents

                     PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against the Judgment and Decree in M.C.O.P.
                     No. 4010 of 2017 dated 21.04.2022 on the file of the Motor Accidents
                     Claims Tribunal in the III Court of Small Causes, Chennai.


                                  For Appellant          : Mr. R.Mohan Babu

                                  For Respondents        : Ms. R.Rathna Thara for R2.

                                                    No appearance for R1

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                                                       JUDGMENT

The appeal has been filed challenging the award passed by the

Tribunal in M.C.O.P. No. 4010 of 2017 dated 21.04.2022

2.The appellants had filed claim petition seeking compensation

before the Tribunal stating that on 17.06.2017 at 15.30 hours, when the

appellant was riding his motorcycle bearing Registration No. TN 07 AX

6305 in Bharathy Salai from West to East direction opposite to State

Bank of India, a lorry bearing Registration No. TN 10 S 8977 came in the

same direction in a rash and negligent manner hit the motorcycle of the

appellant from behind and caused the accident, as a result of which, the

appellant sustained grievous injuries and was admitted in the hospital.

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

4.The second respondent filed counter denying all the averments

made in the claim petition stating that the accident occurred due to the

rash and negligent driving of the appellant; that the claim petition is bad

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CMA No. 1823 / 2022

for non-joinder of necessary parties; that the procedure prescribed under

the Motor Vehicles Act has not been followed; and that in any case, the

compensation claimed by the appellant is excessive and prayed for

dismissal of the petition.

5. The appellant examined himself as PW.1 and marked Ex.P.1 to

Ex.P.15. On the side of the second respondent, neither any witness has

been examined nor any document has been marked. Disability certificate

issued by the Regional Medical Board, Government Stanley Medical

College Hospital, Chennai has been marked as Ex.C.1.

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 belonging to the first respondent as well

as due to the appellant and fixed 90% negligence on the driver of the

lorry and 10% contributory negligence on the appellant and awarded a

compensation of Rs. 17,48,000/- to the appellant to be paid by the second

respondent. Aggrieved by the said award, the appellant had preferred the

instant appeal.

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CMA No. 1823 / 2022

7.The learned counsel for the appellant submitted that due to the

injuries suffered by the appellant, his leg was amputated. The Tribunal

though had accepted the disability certificate and had correctly applied

the multiplier method, had fixed a very meagre amount of Rs.10,000/- as

monthly income. The appellant was examined before the Tribunal as

PW1 and he had stated that he was working as a Air Conditioner

mechanic. Even in the earliest version of the FIR alleged, the appellant

had mentioned about his avocation. Hence, the learned counsel submitted

that the Tribunal ought to have fixed higher notional income. Though the

appellant has taken treatment as inpatient in the hospital for nearly 143

days, the Tribunal had erroneously mentioned the period of

hospitalization as 117 days and had awarded meargre compensation

towards attender charges and prayed for enhancement of the

compensation. The learned counsel further submitted that the Tribunal

ought not to have fixed 10% contributory negligence on the appellant

since he had produced Ex.P.15 driving license to prove that he had valid

driving license.

8.Though notice has been served, none has entered appearance on

behalf of the first respondent.

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9.On the other hand, the learned counsel for the second respondent

submitted that the driving license possessed by the appellant indicates

that he was entitled to drive only motorcycle with 50 CC engine.

However, he had ridden Hero Honda Splendor, which has 100 CC

engine. Therefore, the Tribunal was right in fixing 10% contributory

negligence on the appellant. Further, the compensation awarded by the

Tribunal is just and reasonable and no interference is called for and

prayed for dismissal of the appeal.

10.The questions that arise for consideration in the instant appeal

are:

(i) Whether the Tribunal was right in fixing 10% contributory negligence

on the appellant?

(ii) Whether the compensation awarded by the Tribunal is just and

reasonable?

11.On perusal of the records, this Court finds that admittedly, the

appellant had driving license for riding a motorbike with 50CC engine,

which is seen from Ex.P.15 and the same is also recorded by the Tribunal https://www.mhc.tn.gov.in/judis

CMA No. 1823 / 2022

in its award. The Tribunal had rejected the said driving license on the

ground that the date of validity is not visible from the copy produced by

the appellant. Fixing of contributory negligence on the victim/deceased

depends on the facts and circumstances of each case. Further, the Hon'ble

Supreme Court in Dinesh Kumar, J. @ Dinesh, J. Vs. National

Insurance Co. Ltd. & Others reported in 2018 (1) TN MAC 34 (SC) had

held that the failure to produce driving license would not by itself be a

ground to fix contributory negligence on the victim. Therefore, in the

instant case, this Court is of the view that merely because Ex.P.15 copy

of the driving license was not clear regarding the validity period,

contributory negligence ought not to have been fixed on the appellant.

Therefore, the finding of the Tribunal as regards the fixing of

contributory negligence is liable to be set aside and it is accordingly set

aside.

12. As regards quantum of compensation, it is seen that the

appellant was treated as in-patient in six spells. He had also undergone

surgeries for the injuries suffered by him. His right leg was also

amputated as could be seen from Ex.C.1. disability certificate.

Considering the nature of injuries, period of treatment and the disability https://www.mhc.tn.gov.in/judis

CMA No. 1823 / 2022

suffered by the appellant, the Tribunal was right in fixing the functional

disability at 70%. It is seen that the appellant had deposed before the

Tribunal that he was working as a Air Conditioner mechanic. However,

the appellant had not produced any documentary evidence to prove the

income earned by him. The accident is of the year 2017. Considering the

age, avocation and the year of the accident, this Court is of the view that

it would be just and reasonable to fix the notional income of the

appellant at Rs. 15,000/- per month. Since the appellant was aged 44

years at the time of the accident, he is entitled to 25% enhancement

towards future prospects and the multiplier applicable is 14. Therefore,

the loss of income would be Rs. 15,000/- + Rs. 3,750/- (25% of Rs.

15,000/-) = Rs. 18,750/- x 12 x 14 x 70/100 = Rs. 22,05,000/-. The

compensation awarded under the head attender charges is meagre since

he has been in hospital for 143 days and hence, the same is enhanced

from Rs. 40,950/- to Rs. 75,000/-. 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

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                         1.       Loss of earnings            14,70,000    22,05,000     Enhanced
                         2.       Attender charges               40,950        75,000    Enhanced
                         3.       Loss of amenities              50,000        50,000    Confirmed
                         4.       Pain and Sufferings            50,000        50,000    Confirmed
                         5.       Extra Nourishment &            15,000        15,000    Confirmed
                                  Transportation
                         6.       Damages to clothes              1,000         1,000    Confirmed
                         7.       Medical Bills                3,15,213      3,15,213    Confirmed
                                  Total                       19,42,163     27,11,213
                                  After deducting 10%          17,47,946           ---   Set aside
                                  contributory negligence    rounded off
                                                            to 17,48,000
                                  Net compensation                         27,11,213/- Enhanced by
                                                                                       Rs.9,63,213/-

13. With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.17,48,000/- is hereby enhanced to Rs.27,11,213/- 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 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 two (2) weeks from the date of a receipt of copy of this

Judgment. On such deposit, the appellant is permitted to withdraw the

award amount along with interest and costs, less the amount if any,

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