Madras High Court

Settu vs Rajalakshmi (Died) on 22 December, 2023

Author: M.Dhandapani

Bench: M.Dhandapani

                                                                              C.M.A.No.3098 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 22.12.2023

                                                        CORAM:

                                    THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                                C.M.A.No.3098 of 2019

                   Settu                                                            ...Appellant

                                                           Vs.

                   Rajalakshmi (Died)

                   1.      The Divisional Manager,
                           The Bajaj Alliance General Insurance Co. Ltd.,
                           No.25/26, Prince Towers, Nungambakkam,
                           Chennai.

                   2.      Murugaiyan
                   3.      Dhanachezhiyan @ Thangarasu                           ...Respondents

                       ( R2 & R3 are added as LRs of the deceased Rajalakshmi. Since R2 & R3
                   remained exparte before the tribunal, their presence may be dispensed with.)


                               Civil Miscellaneous Appeal filed under Section 173 of Motor
                   Vehicles Act, 1988, as against the Judgment and Decree dated 03.01.2019
                   made in M.A.C.T.O.P.No.45 of 2017 on the file of the Motor Accidents
                   Claims Tribunal, Court of the Special Sub Court, Tiruvannamalai.



                   Page No.1 of 9




https://www.mhc.tn.gov.in/judis
                                                                                   C.M.A.No.3098 of 2019



                                  For Appellant   : M/s.A.Subadra

                                  For Respondents : Mr.J.Michael Visuvasam, for R1
                                                    R2 & R3 – Exparte



                                                      JUDGEMENT

Challenging the judgment and decree dated 03.01.2019 made in

M.A.C.T.O.P.No.45 of 2017 on the file of the Motor Accidents Claims

Tribunal, Court of the Special Sub Court, Tiruvannamalai, the claimant has

come up with this appeal.

2. The case of the appellant is that, on 08.05.2016 at about 07.00 p.m.,

when the appellant was riding his two wheeler bearing Regn.No.TN-25-D-

3652 on Tiruvannamalai to Chengam Main Road, the Tata Sumo bearing

Regn.No.TN-32-F-0700, owned by the 1st respondent, insured with the 2nd

respondent, driven by its driver in a rash and negligent manner, came in the

opposite direction and dashed against the appellant, as a result of which, the

appellant sustained grievous injuries all over the body and got admitted in the

hospital. Thereby, the appellant filed a claim petition claiming a compensation

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

of Rs.50,00,000/-. After contest, the tribunal, vide impugned judgment

awarded a compensation of Rs.26,59,428/-. Aggrieved with the said order, the

present appeal has been filed by the claimant seeking enhancement of the

compensation fixed.

3. Learned counsel appearing for the appellant submitted that

admittedly, the above said accident occurred solely due to the rash and

negligent driving of the driver of the offending vehicle, insured with the 1st

respondent, due to which, the appellant sustained 90% functional disability

and he is not able to perform his avocation which he was carrying on before

the accident and due to which, his earning capacity got reduced and for the

said accident, an FIR also came to be registered as against the driver of the

offending vehicle. Further, at the time of the accident, the appellant was aged

about 42 years and was working as an Agriculturist and was earning about

Rs.25,000/- per month. However, the tribunal had taken the monthly income of

the appellant as Rs.7,000/- only, despite the fact that the accident is of the year

2016, which is very meagre and as the appellant sustained 90% disability, he

has to be taken care of till his life time, however, the Tribunal awarded only a

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

sum of Rs.1,00,000/- under the head “Attender charges”, which has to be

necessarily enhanced. Further, the compensation awarded under other heads

are also on the lower side and the same requires to be reconsidered and a

higher compensation ought to be awarded to the appellant. Accordingly, he

prays for appropriate enhancement in favour of the appellant.

4. Per contra, the learned counsel appearing for the 1st respondent/

Insurance Company submitted that, by considering all the relevant documents,

the Tribunal has rightly awarded the compensation, which does not require any

enhancement. Accordingly, he prays for dismissal of the appeal.

5. Heard the learned counsel for the appellant and the learned counsel

appearing for the 1st respondent and perused the materials available on record.

6. The factum and manner of the accident is not disputed by the parties.

Therefore, this Court is not entering into the said aspect. The major grievances

of the appellant is with regard to the quantum of compensation and the

negligence fixed by the Tribunal. It is claimed by the appellant that the

accident is of the year 2016 and at the time of accident, the appellant was

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

earning a sum of Rs.25,000/- per month, however, without considering the

same, the Tribunal has fixed the notional income at Rs.7,000/-. It has been the

view of the Courts that even a housewife is entitled to monthly income to be

fixed for the purpose of qualifying their work for the purpose of quantifying

the amount receivable by them. Even it has been held by the Apex Court that

the wages should be in line with the minimum wages fixed by the State.

Applying the ratio laid down by the Hon'ble Supreme Court in the case of

Syed Sadiq Vs. United India Insurance Company reported in 2014 (1)

TANMAC 459, fixing a notional income of Rs.10,000/- and adding future

prospects at 25%, as has been held by the Constitution Bench in the case of

National Insurance Company Limited Vs. Pranay sethi and others reported

in 2017 (16) Supreme Court Cases 680, the income per month is quantified at

Rs.12,500/- and the appellant being aged about 42 years, as evidenced from

the records, adopting the multiplier of 14 as fixed by the Apex Court in the

case of Sarla Verma and Ors. v. DTC & Ors. reported in (2009) 6 SCC 121,

and as the appellant suffered functional disability of 90%, the loss of income is

arrived at Rs.12,500/-*12*14*90% = Rs.18,90,000/-.

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

7. Insofar as the compensation awarded under the other heads are

concerned, this Court is of the view that the compensation awarded under

other heads are just and reasonable and the same does not requires interference

of this Court.

8. The tribunal had fixed contributory negligence of 10% on the part of

the appellant/claimant for not wearing Head gear at the time of accident. It is

to be pointed out that mere non-wearing of helmet cannot be a ground to fix

contributory negligence on the part of the claimant, as the contributory

negligence is fixed in relation to the cause of accident. Non-wearing of helmet

may be a negligent act on the part of the claimant, but definitely it is not an act

contributing a part to the accident and, therefore, to that extent, fixing

contributory negligence at 10% on the claimant for not wearing helmet is

unreasonable and the same cannot sustained. Hence, this Court fixes the entire

liability on the part of the 1st respondent/ insurance company.

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

Tribunal is modified as under :-

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Heads Awarded by the Awarded by this Tribunal (Amount Court (Amount in in Rs.) Rs.) Functional Disability (90%) 13,23,000/- 18,90,000/-

                              Pain and sufferings                    1,00,000/-            1,00,000/-
                              Medical Expenses                      12,41,920/-          12,41,920/-
                              Nursing Charges                        1,50,000/-            1,50,000/-
                              Transportation expenses                  10,000/-              10,000/-
                              Attender Charges                       1,00,000/-            1,00,000/-
                              Damages of two wheelers                  20,000/-              20,000/-
                              Extra Nourishment                        10,000/-              10,000/-
                              Total                                 29,54,920/-          35,21,920/-

10. The appeal is allowed and the impugned Award of the Tribunal is

modified by enhancing the compensation amount from Rs.26,59,428/- to

Rs.35,21,920/-. The 1st respondent-Insurance Company is directed to deposit

the said amount to the credit of M.A.C.T.O.P.No.45 of 2017 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

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

copy of this judgment. On such deposit being made, the Tribunal is directed to

transfer the said amount directly to the bank account of the appellant through

RTGS within a period of two (2) weeks thereafter, upon production of proof

with regard to payment of Court fee on the enhanced compensation by the

appellant. There shall be no order as to costs in the present appeal.




                                                                                           22.12.2023

                   skt

                   Index                     : Yes / No
                   Speaking Order            : Yes / No
                   Neutral Citation Case     : Yes / No

                   To