Madras High Court

Nallammal vs G.Venugopal on 1 December, 2023

Author: M.Dhandapani

Bench: M.Dhandapani

                                                                                  C.M.A.No.1638 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                      DATED: 01.12.2023
                                                         CORAM
                                  THE HONOURABLE MR.JUSTICE M.DHANDAPANI
                                                  C.M.A.No.1638 of 2020

                   1.Nallammal
                   2.Dr.E.R.Nagarajan
                   3.R.Sekar                                                 ... Appellants

                                                             Vs

                   1.G.Venugopal

                   2.M/s.United India Insurance Company Limited,
                     1170, Muthiah Complex, Mettur Road,
                     Erode Post & Taluk, Erode District.                    ... Respondents

                   Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
                   Vehicles Act, 1988, to set aside the award and Judgment made in
                   M.C.O.P.No.398 of 2013 on the file of Motor Accident Claims Tribunal Cum
                   Subordinate Court, Sankari dated 08.11.2019 for fixing contributory
                   negligence and also for enhancement of compensation.

                                     For Appellants       ... M.C.Kulanthaivel

                                     For Respondents      ... No appearance for R1
                                                           ... Mr.S.Arunkumar for R2




                   Page No.1 of 10




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                                                                               C.M.A.No.1638 of 2020

                                                       JUDGMENT

Challenging the impugned award dated 8.11.2019, passed by the Motor

Accident Claims Tribunal Cum Subordinate Court, Sankari, the claimant has

filed the present appeal questioning the negligence as well as the quantum of

compensation fixed by the Tribunal.

2. The appellants herein are the wife and sons of the deceased

Rajagounder. It is the case of the claimants that on 18.06.2013, at about 7.00

P.M., when the deceased along with one Vasantha as a pillion rider while

trying to cross the road in the two wheeler bearing Reg.No.TN-52-A-2818, the

innova car bearing Reg.No.TN-33-BF-5959 belonging to the first respondent,

insured with the second respondent, driven by its driver in a rash and negligent

manner dashed behind the two wheeler of the deceased due to which the

deceased and his wife were thrown out of the two wheeler and sustained fatal

injuries resultantly, the wife of the deceased died on the spot. Immediately

after the accident, the deceased Rajagounder was taken to Vinayaga Missions

Hi-Tech Hospital, Seeragapadi, wherein he was declared dead on 19.06.2013.

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Aggrieved by which, the appellants have filed a claim petition claiming

compensation towards the death of the deceased.

3. Before the Tribunal, the 1st claimant examined herself as P.W.1 and

examined the P.W.2 and marked Ex.P-1 to Ex.P-15. No witnesses were

examined on the side of the respondents nor any documents were marked.

After considering all the oral and documentary evidence, the Tribunal has

awarded the compensation amount of Rs.6,46,000/- and in view of the fact that

30% contributory negligence was fixed on the claimant, accordingly, directed

payment of a sum of Rs.4,50,000/-, which is the 70% compensation to be paid

by the insurance company. Aggrieved by the negligence as well as the

quantum of compensation fixed by the Tribunal, the appellants have filed the

present appeal.

4. Learned counsel appearing for the claimants submitted that claimants

have assailed the impugned award on the ground that the contributory

negligence of 30% fixed on the deceased is wholly erroneous as it is only the

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driver of the offending vehicle which had contributed to the accident as it was

driven in a rash and negligent manner. It is further submitted that no

compensation has been awarded under the conventional heads such as Loss of

Consortium and Loss of love and affection to the wife and the minor child of

the deceased respectively. Therefore this Court may award compensation

under the said heads as well.

5. Per contra, learned counsel appearing for the second respondent

/Insurance company submitted that after considering the oral and documentary

evidence, the Tribunal has rightly fixed the negligence on the part of the

deceased who was trying to cross the road in the national highways where

there was no zebra crossing which is in violation of traffic rules. Further, the

quantum of compensation arrived by the Tribunal is also just and reasonable

which cannot be said to be inadequate. Accordingly, he prayed for dismissal of

the Appeal.

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6. This Court heard the learned counsel appearing for the Claimants

and the learned counsel appearing for the Insurance Company and perused the

materials available on record.

7. The factum of the accident is not disputed by the parties. Therefore,

this Court is not entering into the said aspect. However, claimants have

questioned the negligence which has been fastened on the deceased to the

extent of 30%. During the course of investigation, a rough sketch has been

drawn, which is marked as Ex.P-5 reveals that the accident had taken place

near centre median of the road in the national highways where there was no

zebra crossing. Based on the evidence of Ex.P-5, the Tribunal had come to a

conclusion that the said accident had taken place when the deceased was trying

to cross the road in his two wheeler where there was no zebra crossing the

offending vehicle which came in a rash and negligent manner had dashed

against the two wheeler of the deceased. The said finding of the Tribunal

clearly shows that the deceased had also contributed to the said accident and

therefore, the contributory negligence to the extent of 30% fixed on the part of

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the deceased does not require any interference.

8. Insofar as the compensation awarded under the head loss of

earning, no proof of income has been produced by the claimants. In the

absence of any proof of income, the Tribunal, considering the age and income

of the deceased, had fixed the notional income at Rs.10,000/- per month and

has awarded a sum of Rs.5,60,000/- by applying the multiplier method after

deducting 1/3rd towards the personal expenses of the deceased which cannot

be said be inadequate. Accordingly, the compensation awarded under the said

head requires no interference.

9. Further, the Tribunal has awarded a sum of Rs.15,000/- under the

head “Loss of Estate”: Rs.40,000/- under the head “ Loss of Amenities";

Rs.15,000/- under the head “Funeral expenses” and Rs.16,000/- under the head

“Medical expenses”. This Court finds that while the compensation awarded

under the head "Loss of Amenities" is not sustainable, however, the

compensation awarded under the other heads are just and reasonable and does

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not require any interference. Accordingly, the compensation awarded under

the head "Loss of Amenities" is set aside while the compensation awarded

under the other heads are confirmed. Further, it is to be pointed out that no

compensation has been awarded under the heads “Loss of Consortium” and

“Loss of Love & Affection”. This Court applying the ratio laid down in

Pranay Sethi case by the Constitution Bench, awards a sum of Rs.40,000/-

under the head “Loss of Consortium” to the 1st claimant and a sum of

Rs.40,000/- to each of the claimants 2 & 3 totalling to a sum of Rs.80,000/-.

10. In the above circumstances, the compensation awarded by the

Tribunal under the below mentioned heads are modified as under :-

                                  S.         Head of              Amount           Amount
                                  No       Compensation         awarded by      awarded by this
                                                                  Tribunal          Court
                                  1.     Loss of earning        Rs.5,60,000/-    Rs.5,60,000/-
                                  2.     Loss of Estate          Rs.15,000/-      Rs.15,000/-
                                  3.     Loss of Amenities       Rs.40,000/-           -
                                  4.     Funeral Expenses        Rs.15,000/-      Rs.15,000/-
                                  5.     Medical Expenses        Rs.16,000/-      Rs.16,000/-
                                  6.     Loss of Consortium           -           Rs.40,000/-
                                  7.     Loss of love and             -           Rs.80,000/-
                                         affection
                                         (Rs.40,000/- * 2)
                                         TOTAL                  Rs.6,46,000/-    Rs.7,26,000/-






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11. Accordingly, the appeal is partly allowed and the impugned Award

of the Tribunal is modified by enhancing the compensation amount from

Rs.6,46,000/- to Rs.7,26,000/- of which compensation to the tune of 30% of

contributory negligence on the part of the deceased shall stand deducted.

Accordingly, after deducting 30% towards contributory negligence on the part

of the deceased, the amount of compensation to be paid by the second

respondent-Insurance Company is quantified at Rs.5,08,200/- and the

insurance company is directed to the credit the same to the credit of

M.C.O.P.No.398 of 2013 along with interest at the rate of 7.5% per annum

from the date of claim petition till the date of deposit and costs as awarded by

the Tribunal, less the amount, if any already deposited, within a period of six

(6) weeks from the date of receipt of a copy of this judgment. On such deposit