Madras High Court

Meena vs Kannan on 7 December, 2023

Author: M.Dhandapani

Bench: M.Dhandapani

                                                                              C.M.A.No.1379 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 07.12.2023

                                                          CORAM

                                    THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                                 C.M.A.No.1379 of 2020

                     1.Meena
                     2.Minor.Jai Pratheesh
                       Rep. by his next friend and guardian and
                       Mother Meena (1st appellant)

                     3.Deivanai

                     Jaganathan (Died)                                   ... Appellants

                                                            Vs.

                     1.Kannan

                     2.United India Insurance Co. Ltd.,
                       Divisional Office – II,
                       104/A, Peramanur Main Road,
                       Salem – 636 007.                                  ... Respondents


                     Prayer:
                                  Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, 1988, against the judgment and award passed in
                     M.C.O.P.No.1441 of 2017 (on the file of the Special District Judge,
                     MCOP Tribunal, Salem) dated 27.08.2019.


                                      For Appellants : M/s.J.Prithivi
                                      For Respondents : R1 – Died (Steps Due)
                                                        Mr.D.Bhaskaran for R2



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https://www.mhc.tn.gov.in/judis
                                                                              C.M.A.No.1379 of 2020



                                                   JUDGMENT

This appeal has been filed by the appellants/ claimants

challenging the award passed in M.C.O.P.No.1441 of 2017 dated

27.08.2019 on the file of the Special District Judge, MCOP Tribunal,

Salem.

2.The brief facts of the case is that on 02.07.2017 at about

10.30 p.m., the deceased Prakash was riding his motorcycle bearing

Registration No.TN-30-BF-7708 along with his wife near Annamalai

Medical Store on the Saminathapuram Road. At that time, the

motorcycle owned by the first respondent bearing Registration No.TN-

30-AS-5890 came from Saminathapuram in a rash and negligent

manner and hit against the motorcycle driven by the deceased, due to

which, the deceased lost his life.

3.Thereafter, the wife, son and parents of the deceased

Prakash/ appellants / claimants filed claim petition before the Motor

Accidents Claims Tribunal, claiming a sum of Rs.25 Lakhs as

compensation. During the pendancy of the claim petition, the father

of the deceased namely, Jaganathan/ fourth claimant died. After

adjudication, the Tribunal awarded a sum of Rs.11,96,235/- as

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compensation along with interest at the rate of 7.5% per annum from

the date of petition till the date of realisation with proportionate

costs. Aggrieved by the same, the claimants have preferred this

appeal.

4.The learned counsel appearing for the appellants submitted

that the appellants have filed this appeal questioning the 50%

contributory negligence fixed on the deceased. The learned counsel

further submitted that immediately after the accident, the deceased

Prakash was taken to Nalam Hospital, Salem for first aid and the

Doctor in the medical records mentioned that Prakash was under the

influence of alcohol and based on the medical records and the

evidence of R.W.1 and R.W.3, the Tribunal fixed 50% contributory

negligence on the part of the deceased, without conducting the

procedure contemplated under Section 85 of the Motor Vehicles Act.

Mere Doctor certificate is not sufficient to hold that the deceased was

under the influence of alcohol. Hence, this Court may fix the entire

negligence on the part of the rider of the motorcycle owned by the

first respondent and fasten entire liability on the Insurance Company.

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

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respondent Insurance Company submitted that immediately after the

accident, the deceased was admitted in Nalam Hospital, Salem. The

owner of the vehicle was examined as R.W.1 and the rider of the

vehicle was examined as R.W.3 and they deposed that the deceased

was under the influence of alcohol and he all of a sudden emerged

from the Annamalai Cross Street and dashed against the vehicle

owned by the first respondent. Hence, the impugned award warrants

no interference.

6.Heard the learned counsel appearing for the appellant as well

as the learned counsel appearing for the second respondent and

perused the materials available on record.

7.It is alleged that 02.07.2017 at about 10.30 p.m., the

deceased Prakash was riding his motorcycle along with his wife near

Annamalai Medical Store on the Saminathapuram Road. At that time,

the motorcycle owned by the first respondent came from

Saminathapuram in a rash and negligent manner and hit against the

motorcycle driven by the deceased, due to which, the deceased lost

his life.

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8.The accident and the manner in which the accident happened

are not disputed. The only dispute is with regard to the 50%

contributory negligence fixed on the part of the deceased by the

Tribunal.

9.Perusal of records disclose that immediately after the

accident, the deceased Prakash was taken to Nalam Hospital, Salem

for first aid and the Doctor in the medical records mentioned that

Prakash was under the influence of alcohol and based on the medical

records and the evidence of R.W.1 and R.W.3, the Tribunal fixed 50%

contributory negligence on the part of the deceased, however, the

said Doctor was not examined before the Tribunal. As rightly

contended by the learned counsel appearing for the appellants, mere

clinical examination is not sufficient to hold that the deceased was

under the influence of alcohol. There is a procedure contemplated

under Section 85 of the Motor Vehicles Act and the said procedure

was not followed in the present case. Hence, 50% contributory

negligence fixed on the part of the deceased by the Tribunal is not

sustainable one and this Court reduce the same to 20%.

10.The Tribunal rightly fixed the monthly income of the

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deceased as Rs.12,000/- and rightly deducted 1/3 towards his

personal expenditure and rightly adopted the multiplier 18 and

arrived at a sum of Rs.17,28,000/- for loss of dependency and

deducted 50% of the amount for contributory negligence and awarded

a sum of Rs.8,64,000/-. This Court modify the same and deduct 20%

of the amount for contributory negligence. Hence, the amount for

loss of dependency comes to Rs.13,82,400/- [80% of Rs.17,28,000/-]

. The amount awarded by the Tribunal under the other heads in the

opinion of this Court is just and reasonable and the same are

confirmed.

11.Accordingly, the compensation amount is re-assessed as

follows:

S.No. Description Amount Awarded Amount Awarded by the Tribunal by this Court

1. Loss of dependency Rs. 8,64,000/- Rs.13,82,400/-

2. Loss of consortium Rs. 40,000/- Rs. 40,000/-

3. Medical Bill Rs. 2,62,235/- Rs. 2,62,235/-

4. Funeral expenses Rs. 15,000/- Rs. 15,000/-

5. Loss of estate Rs. 15,000/- Rs. 15,000/-

                                  Total                               Rs.11,96,235/-         Rs.17,14,635/-


                                  12.The   claimants      are   entitled    to   total    compensation        of

Rs.17,14,635/- along with interest at the rate of 7.5% p.a. from the

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date of petition till the date of realisation.

13.The civil miscellaneous appeal is partly allowed. The

judgment and award made in M.C.O.P.No.1441 of 2017 dated

27.08.2019 by the Special District Judge, MCOP Tribunal, Salem, is

modified to the above extent.

14.The second respondent Insurance Company is directed to

deposit the modified/ enhanced award amount before the Tribunal

within a period of six weeks from the date of receipt of a copy of this

judgment, less the amount if any, already deposited. On such

deposit being made, the appellants 1 and 3/ claimants 1 and 3 are

permitted to withdraw their share as apportioned by the Tribunal,

along with accrued interest and proportionate costs, after deducting

the amount already withdrawn, if any, on making proper and

necessary application before the Tribunal. The second claimant/

second appellant is permitted to withdraw his share as apportioned

by the Tribunal, along with accrued interest and proportionate costs,

on making proper and necessary application before the Tribunal and

on production of necessary proof with regard to his majority. If the

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second claimant/ second appellant is still minor, his share shall be

kept in an interest yielding fixed deposit with anyone of the

Nationalized Bank, initially, for a period of three years to be renewed

at periodic intervals until he attain majority and the interest derived

from out of the said share of the minor shall be paid to the first

claimant/ mother every quarter to be utilized for the welfare of the

said minor.

15.The appellants/ claimants shall not be entitled to any

interest for the period of delay, if any, in filing the appeal. The

appellants/ claimants are directed to pay the requisite Court fee for

the enhanced compensation amount, if required. The Special District

Judge, MCOP Tribunal, Salem, shall disburse the enhanced amount

upon production of certified copy showing proof of payment of Court

fee by the appellants/ claimants.