Madras High Court

Meena vs Baskaran on 28 July, 2023

                                                                         C.M.A. No.284 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 28.07.2023

                                                      CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                 C.M.A.No.284 of 2022

                  1.Meena
                  2.Minor Kanishka
                  3.Minor Sabarivasan
                  4.Minor Sunmathi
                  5.Jayamani                ..                                     Appellants

                                            Vs.

                  1.Baskaran

                  2. The Divisional Manager
                  Divisional Office,
                  New India Assurance Co. Ltd.,
                  Office situated at Amman Complex,
                  Mettur Road, Erode – 638 011.     ..                           Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                  Vehicles Act, 1988, against the judgment and decree dated 30.03.2031 passed
                  in MCOP No.602 of 2018 on the file of Motor Accident Claims Tribunal,
                  Special District Court at Erode District.


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                                                                           C.M.A. No.284 of 2022



                                  For Appellants   : Mr.Ma.P.Thangavel

                                  For Respondents : No appearance for R1
                                               Mrs.R.Sreevidhya for R2

                                       JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellants

challenging the award dated 30.03.2031 passed in MCOP No.602 of 2018 on

the file of Motor Accident Claims Tribunal, Special District Court at Erode

District.

2. The appellants filed MCOP No.602 of 2018 on the file of Motor

Accident Claims Tribunal, Special District Court at Erode District claiming a

sum of Rs.30,00,000/- as compensation for the death of one Murugesan who

died in the accident that took place on 01.02.2018.

3. According to the appellants, on 01.02.2018, while the deceased

Murugesan was riding his TVS XL bearing Regn.No.TN39 BW 0816

alongwith his friend as pillion rider, on the Avinashi to Karumathampatty

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Road, near Thekkalur Santhai from East to West direction, the 1st respondent

rode his bike bearing Regn.No.TN37 BY 4340 in a rash and negligent manner

in the same direction and hit against the deceased motorcycle. Due to the

sudden hit, both the rider as well as the pillion rider of the motorcycle were

thrown away and sustained multiple grievous injuries all over their bodies.

Inspite of treatment, the said Murugesan died on 02.02.2018 and hence the

appellants filed the claim petition claiming compensation against the

respondents.

4. The 1st respondent remained exparte before the Tribunal.

5. The 2nd respondent filed counter statement denying the averments

made in the claim petition including the manner of accident. The deceased

alone rode the motorcycle under the influence of alcohol in a rash and

negligent manner and caused the accident. The deceased did not wear helmet

at the time of accident and thereby violated the policy conditions. The

appellant has not impleaded the owner and insurer of the TVS XL and hence

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the claim petition is bad for non-joinder of necessary parties. The 2nd

respondent denied the age, avocation and income of the deceased. The total

compensation claimed by the appellants is excessive and prayed for dismissal

of the claim petition.

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

one Gurusamy, eye-witness to the accident was examined as PW2. Nine

documents were marked as Exs.P.1 to Exs.P.9. On the side of the

respondents, Dr.V.Balaji was examined as RW1 and Accident Register was

marked as Ex.R1.

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

the side of the appellants as well as respondents, held that the accident

occurred due to the rash and negligent riding by the rider of the bike bearing

Regn.No.TN37 BY 4340, fixed 75% negligence on the part of the rider of the

bike and 25% on the deceased, rider of the TVS XL bearing Regn.No.TN39

BW 0816 for not possessing valid licence and not wearing helmet at the time

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of accident. The Tribunal directed the 2nd respondent / Insurance company to

pay 75% of the award amount, i.e. Rs. 15,90,000/- as compensation to the

appellants.

8. Challenging the award of the Tribunal fixing 25% negligence on the

part of deceased, the appellants have filed the instant appeal.

9. The learned counsel appearing for the appellants submitted that the

Tribunal erred in fixing the negligence on the deceased at 15% for not wearing

helmet and 10% for not possessing valid driving licence at the time of accident

in the absence of any evidence let in by the second respondent/insurance

company to prove the same. The learned counsel further submitted that the

manner of accident would go to show that no contributory negligence can be

fixed for not possessing valid driving licence at the time of accident. The

Tribunal having found that the accident occurred only due to the negligence of

the offending vehicle which is also a two-wheeler, erred in fixing contributory

negligence on the deceased. The Tribunal erred in fixing the notional income

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of the deceased as Rs.10,000/- per month when the appellants have claimed

that the deceased was working in a power loom. The accident had taken

place in the year 2017 and the Tribunal ought to have fixed Rs.15,000/- per

month as notional income of the deceased and prayed for enhancement of

compensation.

10. Per contra, the learned counsel for the 2nd respondent / Insurance

Company contended that the Hon'ble Apex Court and this Court had

consistently taken a view for non-possession of driving licence and not

wearing helmet, 20% contributory negligence would be just and reasonable.

The learned counsel further submitted that the appellants failed to prove that

the avocation and income of the deceased. In the absence of any documentary

evidence, the notional income fixed by the Tribunal at Rs.10,000/- per month

is not meagre and prayed for dismissal of the appeal.

11. Though notice has been served on the first respondent and his name

has been printed in the cause list, there is no representation for him either in

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person or through counsel.

12. Heard the learned counsel appearing for the appellants as well as 2 nd

respondent and perused the materials available on record.

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13. The questions involved in the instant appeal are -

(i) whether the Tribunal is right in fixing 25% contributory negligence on the part of the deceased ;

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

14 (i). As regards the first question, from the materials on record, it is

seen that the deceased did not possess valid driving licence at the time of

accident. Admittedly, he did not wear helmet at the time of accident. Though

it is seen from Ex.R1-Accident Register that the deceased smelt of alcohol,

there is no evidence to suggest that he was under the influence of alcohol.

Considering the facts and circumstances of the case and the view taken by the

Hon'ble Apex Court and this Court in number of cases, this Court is of the

view that it would be reasonable to fix 20% contributory negligence on the

deceased for not possessing driving licence and not wearing helmet at the time

of accident.

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14 (ii) In so far as the quantum of compensation is concerned, it is seen

that the only dispute is with regard to the notional income fixed by the

Tribunal. The accident took place in the year 2018. The appellants have

established the avocation of the deceased who was survived by his wife, three

minor children and his mother. Considering the age and avocation of the

deceased, cost inflation index and the year of accident, this court is of the

view that it would be reasonable to fix the notional income of the deceased as

Rs.14,000/- per month. The deceased was aged 36 years at the time of

accident. The multiplier applicable is 15. There are four dependents of the

deceased. By applying multiplier 15, adding 40% towards future prospects

and deducting 1/4th towards personal expenses of the deceased, the

compensation under the head loss of income is calculated as follows -

14,000 + 5600 (14000 x 40%) x 12 x 15 x ¾ = 26,46,000/-

Thus, the compensation awarded by the Tribunal is enhanced from

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Rs.21,20,000/- to Rs.28,76,000/-, 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        18,90,000/-   26,46,000/-        Enhanced
                         2.       Funeral expenses       15,000/-      15,000/-         Confirmed
                         3.       Damages to clothes     15,000/-      15,000/-         Confirmed
                         4.       Loss of consortium     40,000/-      40,000/-         Confirmed
                         5.       Parental Consortium   1,20,000/-    1,20,000/-        Confirmed
                         6.       Filial Consortium      40,000/-      40,000/-         Confirmed
                                         Total          21,20,000/-   28,76,000/-
                                  Less: Contributory     5,30,000/-    5,75,200/-
                                  negligence fixed        (25%)         (20%)
                                  on the deceased
                                  Net compensation      15,90,000/-   23,00,800/-     Enhanced by
                                   payable to the                                      Rs.7,10,800/-
                                      appellants

The interest awarded by the Tribunal @ 9% is hereby reduced to 7.5%

per annum.

15. In the result, this Civil Miscellaneous Appeal is partly allowed and

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the compensation awarded by the Tribunal at Rs.21,20,000/- is hereby

enhanced to Rs.28,76,000/- together with interest at 7.5% per annum

(excluding the default period if any) from the date of petition till the date of

deposit. The second respondent/Insurance Company is directed to deposit

Rs.23,00,800/-, being 80% of the award amount (after deducting 20%

contributory negligence on the part of the deceased) along with proportionate

interest and costs, less the amount already deposited, if any, within a period of