Madras High Court

The Managing Director vs V.Devi on 9 August, 2023

                                                             C.M.A. Nos.1787 of 2022 & 1561 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 09.08.2023

                                                     CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                   C.M.A.Nos.1787 of 2022 & CMP No.12908 of 2022
                                              and CMA No.1561 of 2023

                  The Managing Director,
                  Tamil Nadu State Transport Corporation,
                  Railway Station New Road,
                  Kumbakonam – 612 001.              .. Appellant in CMA No.1787 of 2022 &
                                                        Respondent in CMA No.1561 of 2023

1.V.Devi

2.Minor V. Sneha

3.Minor V. Sarathi

4.Minor V. Agalya

5.P.Sombu (Minors rep. by their Mother V.Devi ) .. Respondents in CMA No.1787 of 2022 & Appellants in CMA No.1561 of 2023

Common Prayer: These Civil Miscellaneous Appeals are filed under Section

173 of Motor Vehicles Act, 1988, against the judgment and decree dated

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

21.12.2021 made in MCOP No.1683 of 2019 on the file of Motor Accident

Claims Tribunal (I Additional District & Sessions Judge), Cuddalore.

                            For Appellant in          }
                            CMA No.1787/2022          }
                            & Respondent in           } : Mr.M.Murali Vinoth
                            CMA No.1561/2023          }

                            For Respondents in        }
                            CMA No.1787/2022          }
                            & Appellants in           } : Ms.Ramya V.Rao
                            CMA No.1561/2023          }

                                            COMMON JUDGMENT

These Civil Miscellaneous Appeals have been filed challenging the

judgment and decree dated 21.12.2021 made in MCOP No.1683 of 2019 on

the file of Motor Accident Claims Tribunal (I Additional District & Sessions

Judge), Cuddalore.

2. Parties are referred to as per their rank in the claim petition for the

sake of convenience.

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

3. The claimants filed the above said claim petition claiming a sum of

Rs.50,00,000/- as compensation for the death of one Veerasamy, who died

due to the injuries sustained by him in the accident that took place on

13.08.2019.

4. According to the claimants, on 13.08.2019, while the deceased

Veerasamy was riding the two wheeler bearing Regn.No.TN91 W 0937 on

Chenai to Kumbakonam Road, at Neyveli Indira Nagar Bus stop towards

North to South direction, the driver of the bus belonging to the respondent,

drove the same in a rash and negligent manner in the opposite direction and

collided with the motorcycle of the deceased and caused the accident. Inspite

of treatment, the said Veerasamy died on 14.08.2019.

5. The respondent filed a counter statement denying the averments

made in the claim petition and stated that the driver of the bus drove the same

carefully from Kumbakonam to Chennai in National Highway 45; that the

deceased came from the opposite direction and crossed the media with

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

uncontrollable speed; that the deceased dashed against the right bumper of

the bus, fell down and invited the accident; that the driver of the bus is not

responsible for the accident; that the respondent is not liable to pay

compensation to the claimants; that the deceased did not wear helmet and did

not possess valid driving licence at the time of accident and thereby violated

the policy conditions; that the claimants have not impleaded the owner and

insurer of the motorcycle; and that the claim petition is bad for non-joinder

of necessary parties. The 2nd respondent denied the age, avocation and

income of the deceased. It is stated that the total compensation claimed by

the claimants was excessive and prayed for dismissal of the claim petition.

6. Before the Tribunal, the 1st claimant examined herself as PW1 and

Kanaganathan, eye-witness to the accident as PW2. Six documents were

marked as Exs.P.1 to P7. No oral or documentary evidence was adduced on

the side of the respondent.

7. The Tribunal, considering the evidence and documents filed on the

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

side of the claimants, held that the accident occurred due to the rash and

negligent driving by the driver of the bus belonging to the respondent and

directed the respondent to pay a sum of Rs.13,60,500/- as compensation to

the claimants.

8. Not being satisfied with the award of the Tribunal, the claimants

have filed CMA No.1561 of 2023 seeking enhancement of compensation.

Challenging the entire liability fixed on them, the respondent has filed CMA

No.1787 of 2022.

9. The learned counsel for the claimants (appellants in CMA No.1561

of 2023) submitted that the compensation awarded by the Tribunal is meagre.

Though the claimants have established that the deceased was working as a

contractor, the Tribunal had erroneously fixed the notional income of the

deceased at Rs.8000/- per month. The claimants have examined PW1 and

marked Ex.P6-wage slip to prove the avocation and income of the deceased.

The learned counsel further submitted that the claimants 2 to 5 were awarded

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

a total compensation of Rs.25,000/- under the head filial and parental

consortium. However, they are each entitled to a sum of Rs.44,000/- as they

are also entitled to 10% enhancement as per the Judgment of the Hon'ble

Supreme Court in National Insurance Co. Ltd., Vs. Pranay Sethi and others

reported in 2017 (2) TN MAC 609 (SC). Hence, the learned counsel prayed

for allowing the appeal by enhancing the compensation.

10. Per contra, the learned counsel appearing for the

respondent/Transport Corporation (appellants in CMA No.1787 of 2022)

contended that the award of the Tribunal awarding compensation has to be set

aside in as much as the deceased was the tortfeasor. He further submitted that

they had extracted the report of the investigating officer in their counter to the

claim petition in which the investigating officer had stated that the accident

had occurred only due to the deceased who was under the influence of

alcohol at the time of accident. The learned counsel further submitted that

admittedly the deceased did not possess a valid driving licence and did not

wear helmet at the time of accident. In any case, the Tribunal ought to have

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

fixed contributory negligence on the deceased for the aforesaid violations.

As far as quantum of compensation is concerned, the learned counsel

submitted that in the absence of any documentary evidence to prove the

avocation and income of the deceased, the compensation awarded by the

Tribunal is just and reasonable and prayed for allowing CMA No.1787 of

2022 and dismissing the appeal filed by the claimants.

11. Heard the learned counsel appearing for the claimants as well as

respondent / Transport Corporation and perused the materials available on

record.

12. The questions involved in the above appeals are -

(i) whether the deceased was a tortfeasor ;

(ii) whether the quantum of compensation awarded by the Tribunal is just and reasonable.

13 (i). From the materials on record, it is seen that in order to prove

that the deceased was a tortfeasor, the respondent had only extracted in their

counter the report of the investigating officer who it appears had closed the

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

case as mistake of fact. However, it is seen that the report was not filed

before the Tribunal. The respondent had also not examined the investigating

officer to substantiate their claim. In the absence of any evidence to show

that the deceased was under the influence of alcohol, the Tribunal was right in

holding that the driver of the bus was guilty of negligence. Though it is

stated by the learned counsel for the respondent that no opportunity was

given to let in evidence, the docket sheet reveals that the respondent was

given sufficient opportunity to let in evidence and the respondent has not

availed of the opportunity. But, this court finds that admittedly the deceased

did not possess a valid driving licence to ride the two wheeler. The nature of

injuries in Ex.P5-Accident Register reveals that the deceased sustained

grievous head injuries. Therefore, it is clear that the deceased did not wear

helmet at the time of accident. Hence, this Court is of the view that 20%

contributory negligence has to be fixed on the deceased for the aforesaid

violations. Thus, 20% contributory negligence is fixed on the deceased and

the claimants are entitled only to 80% of the compensation.

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

13 (ii) As far as quantum of compensation is concerned, this Court is

of the view that the claimants have examined PW1, wife of the deceased who

had deposed that the deceased was working as a contractor in NLC Mine-I

and earning a sum of Rs.15,000/- per month. PW1 had also marked Ex.P6-

wage slip of the deceased. However, the claimants have not examined the

employer of the deceased to prove Ex.P6. Hence, much credence cannot be

given to Ex.P6. But, the notional income fixed by the Tribunal is meagre.

The accident took place in the year 2019. Considering the age, avocation,

year of accident and number of dependents, this Court is of the view that it

would be just and reasonable to fix the notional income as Rs.14,000/- per

month. The deceased was aged 41 years at the time of accident. Hence the

claimants are entitled to 40% enhancement towards future prospects. The

applicable multiplier is 14. Since there are five dependents, 1/4th has to be

deducted towards personal expenses. Thus the compensation towards loss of

income is calculated as follows -

14,000 + 3500 (14000 x 25%) x 12 x 14 x ¾ = Rs.22,05,000/-

14. It is seen from that the Tribunal had awarded Rs.25,000/- towards

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

loss of love and affection. However, the claimants 2 to 5 are entitled to a sum

of Rs.44,000/- each and hence, the compensation towards loss of love &

affection is enhanced to Rs.1,76,000/-. The claimants have not established

the expenses incurred towards transportation and hence the amount awarded

under the said head is set aside. The Tribunal has not awarded any amount

towards loss of estate. Hence, a sum of Rs.16,500/- is awarded under the said

head. The compensation awarded by the Tribunal under other heads are just

and reasonable and the same are hereby confirmed. Thus, the compensation

awarded by the Tribunal is enhanced from Rs.13,60,500/- to Rs.19,66,400/-,

break-up as follows -

                         Sl. Description                Amount         Amount          Award
                         No                            awarded by    awarded by     confirmed or
                                                        Tribunal      this Court    enhanced or
                                                          (Rs)           (Rs)         granted
                         1.       Loss of income       12,60,000/-    22,05,000/-     Enhanced
                         2.       Loss of consortium     44,000/-        44,000/-     Confirmed
                         3.       Loss of love &         25,000/-     1,76,000/-      Enhanced
                                  affection to
                                  claimants 2 5to 5
                         4.       Transport expenses     15,000/-          -           Set aside


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https://www.mhc.tn.gov.in/judis
                                                                       C.M.A. Nos.1787 of 2022 & 1561 of 2023

                         5.       Funeral expenses             16,500/-      16,500/-      Confirmed
                         5.       Loss of estate                  -          16,500/-        Granted
                                         Total               13,60,500/-    24,58,000/-
                                  Less: Contributory                        4,91,600/-
                                  negligence fixed on             -           (20%)
                                  the deceased
                                   Net compensation          13,60,500/-    19,66,400/-   Enhanced by
                                    payable to the                                        Rs.6,05,900/-
                                       claimants


                              15. In the result -

(i) C.MA.No.1561 of 2023 filed by the claimants is partly allowed by enhancing the compensation from Rs.13,60,500/- to Rs.19,66,400/- together with interest at 7.5% per annum (excluding the default period if any) from the date of petition till the date of deposit.

(ii) C.MA.No.1787 of 2022 filed by the respondent/ Transport Corporation is partly allowed by fixing 20% contributory negligence on the part of the deceased.

The respondent/Transport Corporation is directed to deposit Rs.19,66,400/-,

being 80% of the award amount (after deducting 20% contributory

negligence on the part of the deceased) along with proportionate interest and

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https://www.mhc.tn.gov.in/judis C.M.A. Nos.1787 of 2022 & 1561 of 2023

costs, less the amount already deposited, if any, within a period of six (6)

weeks from the date of a receipt of copy of this Judgment. On such deposit,

the claimants 1 & 5 are permitted to withdraw their share of the award

amount, on the basis of apportionment fixed by the Tribunal, along with

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

The share of the minor claimants 2 to 4 are directed to be deposited in any

one of the Nationalised Bank, till the minors attain majority. However, the 1 st