Madras High Court

Mahalakshmi vs Vijayakumar on 8 August, 2023

                                                                                  C.M.A.No.502 of 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 08.08.2023

                                                          CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                                    C.M.A.No.502 of 2022
                     1.Mahalakshmi
                     2.Nathipriya
                     3.Lakshmiprabha                                            ... Appellants
                                                            Versus

                     1.Vijayakumar

                     2.The Manager,
                       The National Insurance Company Ltd.,
                       KRT Building, No.33, Bharathidasan Salai,
                       Promanade Road, Contonment,
                       Tiruchirapalli.                                        ... Respondents
                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, seeking to set aside the judgment and decree dated
                     28.09.2021 passed in M.C.O.P. No.333 of 2019, on the file of the Motor
                     Accident Claims Tribunal and Principal District Judge, Perambalur.
                                  For Appellants          : Mr.S.P.Yuvaraj
                                  For R1                  : No Appearance
                                  For R2                  : Mr.S.Arunkumar

                                                          JUDGMENT

This appeal has been filed by the appellants/claimants challenging

the compensation awarded by the Tribunal in M.C.O.P.No.333 of 2019,

dated 28.09.2021.

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C.M.A.No.502 of 2022

2.The claim petition was filed stating that on 13.04.2019, at about

9.50 p.m., while the deceased was riding his TVS XL Heavy Duty two

wheeler bearing Registration No.TN 46 M 7276 on the Trichy-Chennai

NH 45 Road, near RTO Office opposite to Selvam Mess, the 1st

respondent's Torus lorry bearing Registration No.TN 30 X 6448, which

came in the same direction behind the deceased, in a rash and negligent

manner and dashed against the deceased and caused the accident. Due the

said accident, the deceased sustained fatal injuries and died on the spot.

Thus, the appellants are entitled for compensation.

3.The 1st respondent/owner of the offending vehicle remained ex-

parte before the Tribunal.

4.The 2nd respondent/Insurance Company filed a counter denying

all the averments made in the claim petition and stated that the deceased

suddenly took a short turn, which resulted in the accident; that the

deceased did not possess valid driving license and did not wear helmet at

the time of accident; that the 2nd respondent is not liable to pay any

compensation to the appellants; and that in any case, the compensation

claimed is excessive and prayed for dismissal of the claim petition. https://www.mhc.tn.gov.in/judis

C.M.A.No.502 of 2022

5.Before the Tribunal, the appellants/claimants examined three

witnesses and marked Ex.P.1 to Ex.P.9 on their side. The 2nd

respondent/Insurance Company examined two witnesses and marked

Ex.R1 to Ex.R3.

6.The Tribunal after considering the oral and documentary

evidence held that since the deceased was not having a driving license to

ride the two wheeler and he sustained fatal injuries; that Section 163-A

of the Motor Vehicles Act (hereinafter referred as 'the Act'), has to be

invoked and directed the 2nd respondent to pay a compensation of

Rs.5,00,000/- to the appellants.

7.Aggrieved over the award passed by the Tribunal, the

appellants/claimants filed the present appeal seeking for enhancement of

compensation.

8(a).Learned counsel for the appellants submitted that the Tribunal

had awarded compensation under Section 163-A of the Act by holding

that accident took place not only due to the negligence of the deceased https://www.mhc.tn.gov.in/judis

C.M.A.No.502 of 2022

but also due to the negligence of the driver of the offending vehicle viz.,

lorry. He further submitted that the claim petition was filed under Section

163-A of the Act, but the Tribunal ought to have awarded compensation

under Section 166 of the Act in view of the evidence adduced before the

Tribunal.

8(b).Learned counsel also submitted as regards quantum of

compensation that the appellants had established the fact that the

deceased was working as a driver and he possessed valid driving license

for driving heavy vehicles, which was marked as Ex.P5. The appellants

had also examined the employer of the deceased as P.W.3 and marked

Ex.P9-salary certificate showing the income of the deceased as

Rs.30,000/- per month. The learned counsel therefore submitted that the

Tribunal ought to have applied the provision of Section 166 of the Act, to

award compensation.

9(a).Per contra, learned counsel appearing for the 2nd

respondent/Insurance Company submitted that the claim petition is not

maintainable since the appellants have sought for compensation under

both the Sections 163-A and 166 of the Act. Learned counsel further https://www.mhc.tn.gov.in/judis

C.M.A.No.502 of 2022

submitted that it is well settled that the claim petition has to filed under

any one of the provision of the Act and not under both provisions when

they specifically pleaded that the driver of the offending vehicle is liable

for negligence.

9(b).Learned counsel further submitted that the award of the

Tribunal is also erroneous since admittedly the deceased was earning

more than Rs.20,000/- per month, Section 163-A of the Act would not be

applicable and hence, he prayed for remitting the case to the Tribunal for

proper adjudication.

10.The questions that arise in the present appeal are whether the

Tribunal ought to have awarded compensation under Section 166 of the

Act? If so, as to what is the quantum of compensation to be awarded to

the appellants?

11.The appellants examined P.W.2-eye witness to the occurrence.

According to P.W.2, the deceased rode the two wheeler on the left side of

the road and the driver of the lorry came from behind in a rash and

negligent manner and rammed against the two wheeler. R.W.1-driver of https://www.mhc.tn.gov.in/judis

C.M.A.No.502 of 2022

the lorry was examined on the side of the 2nd respondent. R.W.1 in his

deposition would say that the deceased suddenly took a sharp turn

without any signal; that inspite of his best effort he could not control the

lorry, which resulted in the accident. It is also seen that the rough sketch

had not been marked on either side. Considering the evidence adduced

on either side, it is clear that both deceased - the rider of the two wheeler,

and the driver of the lorry had contributed to the accident. Further, this

Court finds that the claim made by the appellants is erroneous in as much

as compensation was claimed under Section 140, 142, 149, 163A and

166 of the Act. The nature of claim under Section 163-A and Section 166

of the Act are different and cannot co-exist. The Tribunal ought not to

have accepted the claim petition as such and ought to have given an

option to the appellants to choose one of the provisions. Further in the

facts, the Tribunal erred in awarding compensation by invoking Section

163-A of the Act. The Tribunal ought to have determined the

compensation in terms of Section 166 of the Act since there is evidence

adduced on either side on the question of negligence. The accident took

place in the year 2019 and already four years have elapsed. Therefore,

this Court is of the view that it would be futile exercise to remand the

matter to the Trial Court to determine just compensation. Hence, this https://www.mhc.tn.gov.in/judis

C.M.A.No.502 of 2022

Court is inclined to determine the question of negligence and

compensation on the basis of the available evidence.

12.As stated earlier, the evidence of P.W.2-eye witness is to the

effect that the deceased was riding his two wheeler on the left side of the

road and the offending vehicle viz., lorry came from behind in a rash and

negligent manner and dashed against the two wheeler. The evidence of

R.W.1-driver of the lorry is to the effect that the deceased took a sudden

turn and came in front of the lorry and hence, he could not control the

lorry and the accident took place. It is also seen that the deceased did not

possess valid two wheeler license though he had license for driving

heavy vehicles. P.W.2's version also cannot be the basis to decide the

question of negligence as even according to him the lorry was going in

front of him. Considering the deposition of both P.W.2 and R.W.1, and

other evidence on record, this Court is of the view as stated earlier that

the rider of the two wheeler and the driver of the lorry had both

contributed to the accident. The lorry driver ought to have been careful

even accepting his version that the deceased had taken a sharp right

towards the road. The accident had taken place predominantly due to the

negligence of the lorry driver. Hence, in the facts of the case it would be https://www.mhc.tn.gov.in/judis

C.M.A.No.502 of 2022

just and reasonable to fix the contributory negligence on the side of the

deceased as 30% and the driver of the lorry as 70%.

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

deceased had driving license for heavy vehicles which was marked as

Ex.P5. P.W.3 is the employer of the deceased and he had deposed that

the deceased was earning a sum of Rs.20,000/- per month. It is seen that

Ex.P9-salary certificate was issued after the demise of the deceased.

Apart from that no bank statement or other records has been marked on

behalf of the appellants to prove the income of the deceased Therefore,

considering the avocation of the deceased, his age and the year of the

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

fix Rs.15,000/- per month as notional income of the deceased. As per the

driving license, the age of the deceased was 45 years at the time of

accident. Therefore, he is entitled to 25% future prospects and the

multiplier applicable is 14. Thus the appellants are entitled to

compensation under the head loss of income in the following manner:

Rs.15,000/- + 25% (future prospect) = Rs.18,750/- Rs.18,750 X 12 X 14 X 2/3 (1/3 rd has to be deducted towards personal expenses ) = Rs.21,00,000/-.

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

C.M.A.No.502 of 2022

14.The 1st appellant is entitled for Rs.40,000/- towards loss of

consortium and the appellants 2 and 3 are entitled for Rs.40,000/- each

towards parental consortium. Further a sum of Rs.15,000/- each towards

loss of estate and funeral expenses are awarded. Thus, the consolidated

amount of Rs.5,00,000/- awarded by the Tribunal under Section 163-A of

the Act, is modified as follows:

                                  S. No Description                Amount awarded by
                                                                     this Court (Rs)
                                  1.     Loss of Income                       21,00,000
                                  2.     Loss of Consortium                      40,000
                                  3.     Parental Consortium for                 80,000
                                         appellants 2 and 3
                                  4.     Loss of Estate                          15,000
                                  5.     Funeral Expenses                        15,000
                                         Total                                22,50,000
                                         After deducting 30%                  15,75,000
                                         towards contributory
                                         negligence

15.With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.5,00,000/- is hereby enhanced to Rs.15,75,000/- 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 2nd respondent/Insurance Company is

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C.M.A.No.502 of 2022

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 a receipt of copy of this

Judgment. On such deposit, the appellants are permitted to withdraw the

award amount equally along with proportionate interest and costs, less