Madras High Court

Sundari vs Chandrasekar on 1 August, 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        Dated : 01.08.2023

                                                             Coram

                                        The Honourable Mr.Justice SUNDER MOHAN

                                                       C.M.A.No.898 of 2023
                     1.Sundari
                     2.Minor Lakshitha
                        Rep. by her Guardian/Mother Sundari
                     3.Mahalingam
                                                                                        ...Appellants
                                                              Versus
                     1.Chandrasekar
                     2.Jaganathan
                     3.National Insurance Company Ltd.,
                        Rep. by its Branch Manager,
                        No.58, Rajaji Street,
                        Kangeyam, Tiruppur – 638 701.
                                                                                      ...Respondents

This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 23.01.2023 made in M.C.O.P.No.1363 of 2018 by the Motor Accident Claim Tribunal/Sub Court at Kangeyam, Tiruppur District.

                                  For Appellants                 :     Mr.M.Selvam
                                                                       for K.Venkateswaran
                                  For Respondents – 1 & 2        :     Set ex-parte
                                  For Respondent – 3             :     Mr.S.Vadivel

https://www.mhc.tn.gov.in/judis



                                                           JUDGMENT

This Civil Miscellaneous Appeal has been preferred by the

appellants/claimants seeking to enhance the compensation awarded by the

Motor Accident Claim Tribunal/Sub Court at Kangeyam, Tiruppur District

vide judgment and decree made in M.C.O.P.No.1363 of 2018 dated

23.01.2023.

2. The brief facts of the case are as follows:

On 19.09.2017 at around 7.30 p.m, when one Anandraj was riding a

motorcycle bearing Registration No.TN 68 C 7812 from Kangeyam to

Tiruppur Thenvadal Main Road, a car bearing Registration No.TN 01 H

5728 driven by the first respondent coming from the opposite direction hit

the said motorcycle, as a result which, the accident occurred. In the

accident, the said Anandraj sustained severe injuries and died on the spot.

Aggrieved over the death of said Anandraj, his wife, daughter and father

(appellants/claimants) had filed a claim petition in M.C.O.P.No.1363 of

2018 against the first respondent (driver of the offending vehicle), second

respondent (owner of the offending vehicle) and the third respondent

(insurer of the offending vehicle), claiming a sum of Rs.30,00,000/- as

compensation.

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3. The third respondent/Insurance Company (insurer of the offending

vehicle) had filed its counter statement denying all the averments made by

the appellants/claimants in the Claim Petition. In the counter statement, it is

stated that the accident occurred only due to the negligence of the deceased

Anandraj who suddenly crossed the road without giving any signal and also,

without noticing the vehicle coming on the opposite direction; at the time of

accident, the deceased Anandraj was not having a valid driving license and

he was not wearing the helmet and hence, the third respondent/Insurance

Company is not liable to pay compensation to the claimants and prayed for

dismissal of the claim petition.

4. Before the Tribunal, on the side of the appellants/claimants, the

first appellant examined herself as P.W.1 and one other witness was

examined as P.W.2 and 13 documents were marked as Exs.P1 to P13. The

respondents had neither examined any witness nor marked any document.

5. On appreciation of the oral and documentary evidence produced

before it, the Tribunal arrived at the conclusion that the accident had

occurred due to the rash and negligent driving of the first respondent as well https://www.mhc.tn.gov.in/judis

as deceased Anandraj; and fixed 80% contributory negligence on the first

respondent and 20% contributory negligence on the deceased Anandraj; and

directed the respondents to pay a sum of Rs.10,99,200/- as compensation to

the appellants/claimants.

6. Aggrieved over the quantum of compensation awarded by the

Tribunal, the appellants/claimants have preferred this appeal before this

Court.

7. Mr.M.Selvam, learned counsel for the appellants/claimants

submitted that though the deceased Anandraj was having a valid driving

license at the time of accident, the Tribunal had erroneously fixed 20%

contributory negligence on the deceased Anandraj on the ground that at the

time of accident, he did not have a valid driving license and did not wear

helmet. The learned counsel also submitted that the accident had occurred

due to the rash and negligent driving of the first respondent and the Tribunal

without considering the manner in which the accident took place, presumed

that non-wearing of helmet is the reason for the death of the deceased

Anandraj. Further, the learned counsel submitted that the accident took

place in the year 2017; at the time of accident, the deceased Anandraj was

https://www.mhc.tn.gov.in/judis

32 years old and he was working as a Tailor and earning a sum of

Rs.16,000/- as monthly income, but, without considering all these aspects,

the Tribunal had notionally fixed a meagre amount of Rs.9,000/- as monthly

income of the deceased and awarded Rs.12,24,000/- towards Loss of

Income. Therefore, the learned counsel prayed for allowing the appeal.

8. Though notice has been served on the respondents 1 & 2 and their

names are printed in the cause list, none appeared on their behalf.

9. Mr.S.Vadivel, learned counsel appearing for the third

respondent/Insurance Company per contra submitted that the Tribunal had

rightly fixed 20% contributory negligence on the deceased Anandraj since

at the time of accident, he was not having a valid driving license and he was

not wearing the helmet; further, the Tribunal had rightly held that if the

deceased Anandraj had worn the helmet at the time of accident, he would

not have died due to head injuries; that the head injuries sustained by the

deceased in the accident can be evident from the exhibits viz., Ex.P7

(Accident Register) & Ex.P8 (Post-Mortem Report of the deceased

Anandraj); that though the appellants/claimants claimed that the deceased

Anandraj was having a valid driving license at the time of accident, they did https://www.mhc.tn.gov.in/judis

not produce any proof before the Tribunal to establish their claim; that

similarly, they did not produce any documentary evidence to prove the

monthly income of the deceased; that even in the absence of income proof,

the Tribunal had notionally fixed a sum of Rs.9,000/- as monthly income of

the deceased and awarded Rs.12,24,000/- towards Loss of Income; that the

amount awarded by the Tribunal towards Loss of Income is fair and

reasonable and hence, submitted that the same need not to be enhanced.

The learned counsel brought to the notice of this Court that in the claim

petition, the appellants/claimants had stated that at the time of accident, the

deceased Anandraj was 32 years old, but, in Ex.P8 (Post-Mortem Report of

the deceased Anandraj) as well as Ex.P9 (Death Certificate of the deceased

Anandraj), it is mentioned that the deceased was 30 years old; hence, the

Tribunal came to the conclusion that at the time of accident, the deceased

Anandraj was 30 years old and computed the Loss of Income, by applying

multiplier '17' and hence, submitted that the above appeal may be dismissed.

10. Heard the learned counsel for the appellants/claimants and the

learned counsel appearing for the third respondent/Insurance Company and

perused the materials available on record.

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11. The two issues to be decided in the present case are as follows:

(i) Whether the 20% contributory negligence fixed on the part of

deceased Anandraj by the Tribunal is correct?

(ii) Whether the quantum of compensation awarded by the Tribunal

for the death of the deceased Anandraj is just and reasonable?

12. As far as fixation of negligence is concerned, the Tribunal had

fixed 80% contributory negligence on the first respondent and 20%

contributory negligence on the deceased Anandraj. From a perusal of the

materials available on record, it is seen that before the Tribunal, P.W.1

deposed that her husband Anandraj was having a valid driving license at the

time of accident, but, she did not produce the driving license of her

deceased husband Anandraj. It is also seen that the deceased Anandraj was

not wearing the helmet at the time of accident which can be evident from

the head injuries sustained by him in the accident. The exhibits viz., Ex.P7

(Accident Register) & Ex.P8 (Post-Mortem Report of the deceased

Anandraj) confirm the head injuries sustained by the deceased in the

accident. At this juncture, it is pertinent to state that this Court had held in

similar cases that it would be just and appropriate to fix 20% contributory https://www.mhc.tn.gov.in/judis

negligence on the person who rode the two wheeler without having a valid

driving license and also, without wearing the helmet. Therefore, this Court

is of the view that there is no reason to interfere with the finding of the

Tribunal with regard to the fixation of 20% contributory negligence on the

deceased Anandraj and hence, the same is confirmed.

13. So far as quantum of compensation is concerned, though P.W.1

in her deposition, deposed that her deceased husband Anandraj was working

as a Tailor and was earning a sum of Rs.16,000/- as monthly salary, but, the

Tribunal had notionally fixed a meagre amount of Rs.9,000/- as monthly

income of the deceased. Further, the Tribunal had failed to grant 40% of

monthly income of the deceased towards future prospects as held by the

Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs.Delhi

Transport Corporation & Anr. reported in 2009 (6) SCC 121 as well as in

the case of National Insurance Co. Ltd., Vs. Pranay Sethi & Ors. reported

in 2017 (2) TNMAC 609 (SC).

14. Considering the year of accident, age and profession of the

deceased Anandraj at the time of accident and also, the year of accident, this

Court is of the view that it would be just and reasonable to fix Rs.12,000/-

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as notional monthly income of the deceased Anandraj. Thus, by granting

40% enhancement towards future prospects, deducting 1/3rd towards

personal expenses of the deceased and applying the multiplier '16', the

compensation towards Loss of Income is enhanced as follows:

Rs.12,000 + Rs.4,800/- (40% of 12,000) = Rs.16,800

Rs.16,800 – Rs.5,600 (1/3rd of 16,800) = Rs.11,200

Rs.11,200 x 12 x 16 = Rs.21,50,400

15. The compensation awarded by the Tribunal under all other heads

is just and reasonable and hence, the same are confirmed. The break-up

details of the enhanced compensation are as follows:

                      Sl.No.             Description             Amount         Amount            Award
                                                              awarded by the awarded by this    Confirmed or
                                                                Tribunal         Court          Enhanced or
                                                                  (Rs.)           (Rs.)           Granted
                         1             Loss of Income         Rs.12,24,000/-   Rs.21,50,400/-    Enhanced
                         2         Loss of Love & Affection    Rs.1,20,000/-   Rs.1,20,000/-     Confirmed
                         3            Funeral Expenses         Rs.15,000/-      Rs.15,000/-      Confirmed
                         4              Loss of Estate         Rs.15,000/-      Rs.15,000/-      Confirmed
                                        Total                 Rs.13,74,000/-   Rs.23,00,400/-         ---
                           Less 20% for contributory                                                  ---
                          negligence on the part of the        Rs.2,74,800/-   Rs.4,60,080/-
                                   deceased.
                       Net Compensation payable to the        Rs.10,99,200/-   Rs.18,40,320/-   Enhanced by
                            appellants/claimants                                                Rs.7,41,120/-



https://www.mhc.tn.gov.in/judis

16. In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation of Rs.10,99,200/- awarded by the Tribunal is

enhanced to Rs.18,40,320/- (Rupees Eighteen Lakhs Forty Thousand Three

Hundred and Twenty only) together with interest at 7.5% per annum from

the date of petition till the date of deposit. Out of the enhanced award

amount, the 1st appellant is entitled to Rs.9,20,160/-; 2nd appellant is entitled

to Rs.3,68,064/- and 3rd appellant is entitled to Rs.5,52,096/-. The third

respondent/Insurance Company is directed to deposit the enhanced award

amount of Rs.18,40,320/-, after deducting the amount(s), if any, already

deposited, along with interest at 7.5% per annum from the date of petition

till the date of deposit (excluding the default period, if any), to the credit of

M.C.O.P.No.1363 of 2018, within a period of six weeks from the date of

receipt of a copy of this judgment. On such deposit being made, the

appellants 1 & 3 are permitted to withdraw their respective share of the

award amount along with proportionate interest and cost, as per the

apportionment ordered by this Court. So far as the share of 2 nd appellant

(minor daughter of the deceased) is concerned, the third

respondent/Insurance Company shall deposit the same in Fixed Deposit in

any one of the Nationalized Banks, till she attains majority and the interest https://www.mhc.tn.gov.in/judis

accrued thereon shall be withdrawn by her guardian once in three months,

directly from the Bank. The appellants/claimants are directed to pay the

necessary Court fee, if any, on the enhanced award amount, before receiving

the copy of this judgment. No costs.