Madras High Court
Veemaraj vs Chitharth on 5 June, 2023
C.M.A.(MD)Nos.109 & 110 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD)Nos.109 and 110 of 2023
and
C.M.P.(MD)No.6925 of 2022
1.Veemaraj
2.Eswari
3.Mahalakshmi
4.Minor Selvakumar
rep by Guardian and father
first appellant ...Appellants in C.M.A.(MD)No.109 of 2022
1.Subramanian
2.Padma
3.Karthick
4.Radhika ...Appellants in C.M.A.(MD)No.110 of 2022
Vs.
1.Chitharth
2.The Branch Manager,
The Oriental Insurance Company Limited.,
No.3607/21, 2nd Floor, Sathyamurthy road,
Pudukkottai District. ...Respondents in both appeals
COMMON PRAYER: These Civil Miscellaneous Appeals are filed under Section
173 of the Motor Vehicles Act, 1988, to enhance the award amount by allowing
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C.M.A.(MD)Nos.109 & 110 of 2022
the Civil Miscellaneous Appeals against the order dated 24.03.2021 in
M.C.O.P.Nos.462 and 468 of 2018 on the file of the Motor Accident Claims
Tribunal, Additional District Court, Pudukkottai.
In both the appeals:
For Appellants : Mr.P.Ganapathi Subramanian
For R2 : Mr.C.Karthick
For R1 : No Appearance
COMMON JUDGMENT
The present Civil Miscellaneous Appeals are filed, seeking enhancement
of the award passed by the Motor Accident Claims Tribunal, Additional District
Court, Pudukkottai, in M.C.O.P.Nos.462 and 468 of 2018, dated 24.03.2021.
Since the present appeals had arisen out of a common issue, these appeals are
taken up together for final disposal by way of this common judgment.
2.For the sake of convenience, the parties are referred to herein as per
their rank before the trial Court.
3.The brief facts leading to the filing of the Civil Miscellaneous Appeal
are as follows:
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C.M.A.(MD)Nos.109 & 110 of 2022
When the deceased persons were travelling in a TVS Star City two
wheeler bearing registration No.TN-55-P-1830 in Trichy to Pudukkottai road, the
Maruthi Indica Car bearing registration No.TH-55-AH-0619, which was
proceeding in the same direction, dashed against the two wheeler, hence, the rider
and the pillion riders of the two wheeler were thrown out of the vehicle. As a
result, one Saravanan @ Saravanakumar and Manikandan died on the spot and one
Veerapandi was taken to the hospital and succumbed to injuries.
4.It is the case of the respondents before the Tribunal that the first
respondent drove the vehicle in a cautious manner. In spite of the driver of the car
blew horn, the rider of the two wheeler did not leave the way to the car to go
ahead of it. The accident did not take place by the rash and negligent driving of
the car. Since there were two pillion riders in the motorcycle, the rider of the two
wheeler lost his control and fell down on his own.
5.Before the Tribunal, on the side of the claimants, four witnesses were
examined as P.W.1 to P.W.4 and Ex.P.1 to Ex.P.25 were marked. On the side of the
respondents, no oral and documentary evidence were marked.
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C.M.A.(MD)Nos.109 & 110 of 2022
6.The Tribunal, in both the claim petitions, after perusing the oral and
documentary evidence fixed 80% liability on the part of the first respondent and
20% liability on the part of the rider and pillion riders of the two wheeler and
awarded a sum of Rs.10,07,200/-, (Rupees Ten Lakhs Seven Thousand and Two
Hundred Only) as compensation.
7.Not satisfying with the said compensation, the claimants have filed the
present Civil Miscellaneous Appeals on the ground that the monthly income
adopted by the Tribunal at Rs.7,500/- is very meager and the same has to be
enhanced. Further, the Tribunal had erred in fixing 20% of contributory
negligence on the part of the deceased persons.
8.The learned counsel for the second respondent submitted that carrying
three persons in a two wheeler itself is a violation. That apart, the rider and the
pillion riders had not worn helmet. Hence, the negligence fixed on the part of the
rider of the two wheeler does not require any interference. Further, the Tribunal
considering the factual aspects, had rightly fixed the monthly income of the
deceased persons at Rs.7,500/-. Hence, prays for dismissal of these appeals.
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C.M.A.(MD)Nos.109 & 110 of 2022
9.In view of the above submissions, now the point arise for consideration
in this appeal is:
Whether the tribunal was right in fixing the monthly income of the
deceased at Rs.7,500/- and contributory negligence at 20% on the part of the
deceased persons and 80% on the part of the first respondent/rider of the car?
10.I have heard the learned counsel on either side and perused the
materials placed on record.
11.The deceased along with two others were proceeding in a motorcycle,
at that time the accident had taken place. This aspect had not been disputed.
Though it is the contention of the learned counsel for the respondents that the rider
and the persons travelled in the bike did not wear helmet, this Court is of the view
that admittedly, the accident had taken place not at the fault of the rider of the two
wheeler, in fact the offending vehicle had hit the two wheeler from the behind.
Therefore, the entire negligence cannot be attributed on the part of the rider of the
two wheeler. Of course, if the rider and the pillion riders of the motorcycle wore
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C.M.A.(MD)Nos.109 & 110 of 2022
helmet, the death would have been averted to some extent. That is also depending
upon the nature of the speed and power of the offending vehicle. Therefore, in
order to fix some responsibility on the person, who rode the motorcycle without
abiding the traffic rules, 10% contributory negligence is fixed on the part of the
deceased persons. Merely because of three persons are travelling in a two wheeler,
that will not grant license to the driver of the offending vehicle to drive the vehicle
casually without sufficient caution to avert the accident. Therefore, 90%
contributory negligence is fixed on the driver of the offending car.
12.Admittedly, the deceased in M.C.O.P.No.462 of 2018 had written his
12th examination and was working in Libeya Polymer Bottle Company and the
deceased in M.C.O.P.No.468 of 2018 was studying first year of B.Sc., Computer
Science. The Tribunal had fixed a sum of Rs.7,500/- as the monthly income of the
deceased persons. The accident had taken place in the year 2018 and the deceased
persons are the young students. They would have easily earned more than
Rs.9,000/- per month by getting employment in a private concern depending upon
their future educational qualifications.
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C.M.A.(MD)Nos.109 & 110 of 2022
13.Taking note of the year of the accident and fact that the deceased
persons are young students, this Court feels that it will be reasonable to fix
monthly income of the deceased persons in both the appeals at Rs.9,000/-.
Accordingly, this Court fixes a sum of Rs.9,000/- (Rupees Nine Thousand only) as
notional monthly income of the deceased persons. Considering the age of the
deceased persons, 40% (Rs.3,600/-) future prospects is added. Since the deceased
persons are bachelors, half of their income is deducted towards their personal
expenses. Hence, the monthly income of the deceased persons in both the appeals
is fixed at Rs.6,300/- (Rupees Six Thousand Three Hundred only). If the
multiplier '18' is adopted in both the appeals, as per the dictum laid down by the
Hon'ble Supreme Court in the case of National Insurance Company Ltd., vs.
Pranay Sethi and others [CDJ 2017 SCC 1220], the loss of income of the
deceased persons in both the appeals would come around Rs.13,60,800/-
(6,300/-*12*18) (Rupees Thirteen Lakhs Sixty Thousand and Eight Hundred only)
each. The compensation awarded by the Tribunal in both claim petitions under all
other heads remains unaltered. In the result, the claimants in both the appeals are
entitled to the compensation as stated below:
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C.M.A.(MD)Nos.109 & 110 of 2022
S.No. Head Amount
1 For Loss of Income Rs.13,60,800/-
2. Loss of love and affection Rs. 1,00,000/-
3. Ambulance charges Rs. 15,000/-
4. Funeral Expenses Rs. 15,000/-
Total Rs.14,85,800/-
After deduction 10% (i.e., Rs.
1,48,580/-) of contributory Rs.13,37,220/-
negligence
14.Accordingly, these Civil Miscellaneous Appeals are allowed and the
compensation awarded by the Tribunal in both the claim petitions is enhanced as
stated above.
15.The Insurance Company is directed to deposit the enhanced
compensation amount i.e., Rs.13,37,220/- (Rupees Thirteen Lakhs Thirty Seven
Thousand Two Hundred and Twenty only) in C.M.A.(MD)No.109 of 2022 and a
further sum of Rs.13,37,220/- (Rupees Thirteen Lakhs Thirty Seven Thousand
Two Hundred and Twenty only) in C.M.A.(MD)No.110 of 2022, as modified by
this Court, with interest at the rate of 7.5%, to the credit of M.C.O.P.Nos.462 and
468 of 2018, on the file of the Motor Accident Claims Tribunal /Additional
District Court, Pudukkottai within a period of six weeks from the date of receipt of
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C.M.A.(MD)Nos.109 & 110 of 2022
a copy of this judgment, less the amount, if any already deposited. On such
deposit, the major claimants in both the appeals are permitted to withdraw the
amount as apportioned by the Tribunal, less the amount if any already withdrawn,
by making necessary application before the Tribunal. The Tribunal shall deposit
the share of the minor claimant in C.M.A.(MD)No.109 of 2022 in a Fixed Deposit
in any one of the Nationalized Banks, till the minor claimant attains majority. The
guardian of the minor claimant is permitted to withdraw the interest accrued
thereon once in three months directly from the bank. No costs. Consequently,
connected miscellaneous petition is closed.
05.06.2023
NCC : Yes/No
Index : Yes/No
ta
To
1.The Motor Accident Claims Tribunal /
Additional District Court, Pudukkottai.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)Nos.109 & 110 of 2022
N.SATHISH KUMAR, J.
ta
C.M.A.(MD)Nos.109 and 110 of 2022
05.06.2023
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