Madras High Court
Dhanalakshmi vs Sakthivel on 14 July, 2023
C.M.A.No.57 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.07.2023
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.No.57 of 2021
Dhanalakshmi .. Appellant
Vs.
1.Sakthivel
(R1 remained exparte before Tribunal.
Hence, notice to 1st respondent is
dispensed with)
2.M/s.National Insurance Co.Ltd.,
Divisional Office,
73, Perundurai Road,
Palayapalayam, Erode – 638 011.
3.M/s.National Insurance Co.Ltd.,
Branch Office, 19-B, S.R.Complex,
RajamaniThottam, Bhavani Main Road,
Sankari Taluk,
Salem District – 637 301. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
the Motor Vehicles Act, 1988, against the Judgment and Decree dated
01.10.2020 made in M.C.O.P.No.556 of 2018 on the file of the Motor
Accidents Claims Tribunal, Special District Court, Erode.
1/11
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C.M.A.No.57 of 2021
For Appellants : Mr.M.Guruprasad
For RR 2 & 3 : Mr.J.Chandran
JUDGMENT
The mother of the deceased one Arasu, has preferred this Civil
Miscellaneous Appeal against the Judgment and Decree dated
01.10.2020 made in M.C.O.P.No.556 of 2018 on the file of the Motor
Accidents Claims Tribunal, Special District Court, Erode, for
enhancement of compensation.
2.The claim petition was filed under Section 166 of the Motor
Vehicles Act, claiming compensation of Rs.30,00,000/- for the death of
one Arasu, who died in the road accident that had taken place on
13.03.2018.
3.The Tribunal after hearing both side evidence and upon
perusing the oral and documentary evidence, has awarded
compensation for a sum of Rs.18,84,400/- and directed the 3rd
respondent – Insurance Company to pay 50% of the compensation
amount i.e., Rs.9,42,200/- to the appellant and dismissed the claim
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C.M.A.No.57 of 2021
petition as against the 2nd respondent – Insurance Company.
4.The learned counsel for the appellant / claimant would
vehemently contend that though P.W.2 - eyewitness has clearly stated
that the accident has occurred only due to the negligence of the driver
of the lorry belonging to 1st respondent, the Tribunal erroneously fixed
50% contributory negligence on the part of the deceased. The Tribunal
ought to have accepted the evidence of P.W.2 – eyewitness and fixed
entire negligence on the driver of the lorry. The monthly income fixed
by the Tribunal at Rs.12,000/- is on the lower side and it needs
enhancement as the appellant marked Ex.P17 – salary certificate of
the deceased, as per the same, the deceased was earning a sum of
Rs.16,000/- per month. The compensation granted under other heads
also appears to be on the lower side and prayed to fix 100%
negligence on the driver of the lorry and for enhancement of
compensation.
5. Per contra, the learned counsel for the respondents 2 and 3
would contend that only the deceased drove the motorcycle in a rash
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C.M.A.No.57 of 2021
and negligent manner, dashed on the lorry and invited the accident
and therefore, the Tribunal ought to have fixed entire negligence on
the deceased instead of fixing only 50% negligence. The monthly
income fixed by the Tribunal at Rs.12,000/- is not on the lower side
and it appears to be reasonable. The amounts awarded under other
heads are not meagre and prayed for dismissal of the appeal.
6. Heard the learned counsel for appellants and the learned
counsel for respondents 2 and 3 and perused the entire materials on
record.
7.According to the claimant, on 13.03.2018 at about 03.45 P.M.,
while the deceased Arasu was riding the motorcycle bearing
Registration No.TN 34 W 2111 along the Coimbatore – Salem road
and when he stopped at the center median to proceeds towards
Salem at Kottaimedu byepass road junction, the lorry bearing
Registration No.TN 34 J 8634, came from Komarapalayam and
dashed against the motorcycle and caused the accident. In the
accident, the said Arasu sustained fatal injuries and died in the
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C.M.A.No.57 of 2021
Government Hospital, Erode is not in dispute.
8. On the other hand, it is the case of the respondents 2 & 3 that
on the date of accident, when the deceased came from East to North
and came to center median and tried to cross the East – West road
suddenly without noticing the vehicle coming from opposite direction
and invited the accident. The driver of the lorry came from North and
turned to East after giving signal to enter the Salem road. Hence, the
deceased is only responsible for the accident.
9. From Ex.P7 – rough sketch, it is seen that the accident has
occurred on the left side of the East-West. Therefore, as per Ex.P7, it
is seen that the lorry that was coming from North turned towards East
and the motorcycle that was coming from South to North turned
towards East. Therefore, the rider of the motorcycle ought to have
seen the lorry which was turning towards East while he was also
turning towards East. The fact that the rider of the motorcycle hit at the
diesel tank of the lorry indicates that he was also at fault. The Tribunal
considering the said fact has rightly fixed 50% negligence each on the
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C.M.A.No.57 of 2021
part of the driver of the lorry as well as the deceased. I find no reason
to interfere with the said finding of the Tribunal.
10. As regards monthly income of the deceased, the claimants
claimed that the deceased was working as Fitter in Power Loom Unit
in M/s.VPG Tex., Veerappampalayam and he is an Agriculturist and
earning a sum of Rs.18,000/- per month. The salary certificate of the
deceased is marked as Ex.P17. To prove the same, the proprietor of
M/s.VPG Tex, Veerappampalayam was examined as P.W.3. P.W.3 in
his cross examination has accepted that Ex.P17 – salary certificate of
the deceased was typed in the letter pad and he also accepted that
except Ex.P17, there is no document available with him to prove that
the deceased was employed under him. In his cross examination he
has stated that he has not filed the salary register and the attendance
register. Therefore, this Court deems fit to fix the income of the
deceased at Rs.14,000/- per month.
11. As regards Future Prospects, the Hon'ble Supreme Court
has standardized the details in National Insurance Co. Ltd., Vs.
Pranay Sethi and others, reported in [2017 (2) TN MAC 609 (SC)], in
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C.M.A.No.57 of 2021
respect of person who is self-employed or on fixed salary if the age
below 40 years, 40% to be added while computing the monthly income
of the deceased. With regard to deduction of personal and living
expenses, the Hon'ble Supreme Court in Smt.Sarla Verma & others
Vs. Delhi Transport Corporation & another, reported in [2009 (2)
TNMAC 1 SC], has held that if the deceased is a bachelor and left a
widowed mother, then 1/3rd is to be deducted and as per the said
judgment, for the age group of persons between 21 to 25, the proper
multiplier is 18. Based on the above said details, the loss of
dependency is arrived at :
Age of the deceased : 25 years
Income fixed : Rs.14,000/- per month
After adding 40%
Future Prospects : Rs.14,000/- + 40% = Rs.19,600/-
After 1/3rd deduction
From Rs.19,600/- : Rs.13,067/-
Loss of Dependency : Rs.13,067/- X 12 X 18
Rs.28,22,472/-.
In all other aspects, the amounts awarded by the Tribunal
appears to be reasonable and hence, the same needs no interference.
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C.M.A.No.57 of 2021
Therefore, the Compensation awarded by the Tribunal is reworked as
tabulated below:
S.No. Description Amount Amount Award
awarded by awarded by confirmed
Tribunal this Court or
enhanced
or granted
or
reduced
1 Loss of Rs. 18,14,400/- Rs.28,22,472/- Enhanced
Dependency
2 Funeral Rs. 15,000/- Rs. 15,000/- Confirmed
Expenses
3 Loss of Rs. 15,000/- Rs. 15,000/- Confirmed
Estate
4 Filial Rs. 40,000/- Rs. 40,000/- Confirmed
Consortium
Total Rs.18,84,400/- Rs.28,92,472/-
Less 50% Rs.9,42,200/- Rs.14,46,236/
Contributory -
Negligence
12. Thus, the compensation awarded by the Tribunal is
enhanced from Rs.9,42,200/- to Rs.14,46,236/- which would carry
interest at the rate of 7.5% per annum from the date of petition till the
date of realisation.
13. In the result,
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C.M.A.No.57 of 2021
(i) The Civil Miscellaneous Appeal is partly allowed. No costs.
(ii) The compensation awarded by the Tribunal is enhanced from
Rs.9,42,200/- to Rs.14,46,236/-.
(iii) The 3rd respondent-Insurance Company is directed to deposit
50% of the award amount i.e., Rs.14,46,236/- along with interest and
costs, less the amount already deposited, if any, within a period of
eight weeks from the date of receipt of a copy of this judgment, to the
credit of M.C.O.P.No.556 of 2018 on the file of the Motor Accidents
Claims Tribunal, Special District Court, Erode.
(iv) On such deposit, the appellant is permitted to withdraw the
award amount along with interest and costs, less the amount if any,
already withdrawn by making necessary cheque applications before
the Tribunal. This Civil Miscellaneous Appeal is dismissed as against
the 2nd respondent. The Tribunal below shall disburse the enhanced
amount upon production of the certified copy showing proof of
payment of Court fee by the claimant.
14.07.2023
krk/ssn
Index : Yes / No
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C.M.A.No.57 of 2021
Internet : Yes / No
Neutral Citation : Yes / No
To
1.The Special District Judge,
Motor Accidents Claims Tribunal,
Erode.
2.The Section Officer,
VR Section,
High Court,
Madras.
R.KALAIMATHI, J.
krk/ssn
C.M.A.No.57 of 2021
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C.M.A.No.57 of 2021
14.07.2023
https://www.mhc.tn.gov.in/judis
