Madras High Court
Reliance General Insurance Co. ... vs M.Valli on 1 September, 2023
C.M.A.No.1917 of 2023
THE HIGH COURT OF JUD ICATURE AT MADRAS
DATED: 01.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.Nos.1917 of 2023
and
C.M.P.No.18578 of 2023
Reliance General Insurance Co. Ltd.,
Legal Claim Office, No.6, 6th Floor,
Reliance House, Haddows Road,
Nungambakkam, Chennai - 600 034. ...Appellant
Vs.
1.M.Valli
2.S.Senthil Kumar ...Respondents
Common:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the decree and judgment dated 18.07.2022
passed in MCOP.No.2972 of 2019 by the Motor Accident Claims Tribunal,
Court of Small Causes, Chennai.
For Appellant : Mr.C.Bhuvanasundari
For Respondent : Mr.Amar D.Pandiya for R1
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.1917 of 2023
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The Insurance Company is on appeal. Challenge is to the award
of a sum of Rs.23,38,000/- as compensation for the death of one Thirumal in
a road accident that occurred on 01.11.2018 at about 6.30 p.m.
2.The claimant, who is the mother of the deceased sought for
compensation of Rs.69,47,000/-, contending that the accident occurred due
to the rash and negeligent driving of the driver of the lorry, which came in
the opposite direction and dashed against the two wheeler on which, the
decesaed was riding along with one Fazhulur Rahman as a pillion rider. As
a result of the impact, both the rider and the pillion rider suffered severe
injuries and the rider died on the spot. Contending that her son was
employed with M/s.Auroflux Technologies and was earning Rs.20,000/- per
month, the mother sought for a compensation of Rs.69,47,000/-.
3.The claim was resisted by the Insurance Company contending
that the accident occurred due to the rash and negligent driving of the rider
of the two wheeler / the deceased. It also claimed that the employment and
the monthly income have been boosted up to seek higher compensation.
4.At trial, the sole claimant, Valli was examined as P.W.2 and one
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C.M.A.No.1917 of 2023
M.Elamvazhuthi, an eye-witness was examined as P.W.3. A representative
of the employer was examined as P.W.4 and the appointment order was
marked as Ex.P40. The bank statement was also produced. The Tribunal,
on the assessment of the evidence came to the conclusion that the accident
occurred due to the negligence on the part of the lorry. It took the monthly
income of the deceased at Rs.15,000/-, added 40% towards future prospects
and deducted 50% towards personal expenses. Applying 18 as multiplier,
arrived at the total loss of dependency at Rs.22,68,000/-. It also awarded a
sum of Rs.15,000/- as loss of estate, Rs.15,000/- towards funeral expenses
and Rs.40,000/- towards loss of consortium. Thus, the Tribunal awarded a
sum of Rs.23,38,000/- as compensation. Aggrieved, the Insurance
Company is on appeal.
5.Mrs.C.Bhuvanasundari, learned counsel for the appellant /
Insurance Company would submit that the deceased was not wearing a
helmet at the time of the accident. Drawing our attention to the various
injuries that have been suffered by the deceased, the learned counsel would
submit that the death was only due to the failure on the part of the deceased
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C.M.A.No.1917 of 2023
to wear a helmet. She would also draw our attention to the evidence of
P.W.3 wherein, P.W.3 has admitted that non-wearing of helmet is an offence.
The learned counsel would therefore, submit that the Tribunal ought to have
fixed a certain amount of negligence on the part of the deceased on his
failure to wear a helmet. It is also the contention of the learned counsel that
the monthly income is on the higher side.
6.Contending contra, Mr.Amar D.Pandiya, learned counsel for the
1st respondent / claimant would submit that there is no plea in the counter
that the deceased was not wearing a helmet. He would also draw our
attention to the cross-examination of P.W.3, an eye-witness, and submit that
there is no cross-examination on the question of wearing of helmet by the
deceased. The learned counsel would also point out that the income taken
for an Engineering graduate in 2019 at Rs.15,000/- is too low and even
contributory negligence is to be attributed. Considering the fact that the
income taken is low, the compensation is just and reasonable. We have
considered the rival submissions of the learned counsel on either side.
7.True, law makes it mandatory for every person, who rides a two
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C.M.A.No.1917 of 2023
wheeler to wear a helmet. It is also, to a certain extent, true that the said law
is followed more in breach than in observance. When it comes to the
quantum of negligence for non-wearing of helmet, the Courts have always
adopted a low percentage of 15. Contributory negligence, as has been held
by this Court and the Hon'ble Supreme Court, is a question of fact and it has
to be established like any other Court. There cannot be a presumption on
contributory negligence. P.W.3, an eye-witness to the accident has been
examined. He has not in chief-examination, adverted to the wearing of
helmet. However, we find no suggestion was made by the learned counsel
for the Insurance Company in the cross-examination to the effect that the
rider was not wearing a hemlet. The only suggestion that is made is as to
whether he knows the wearing of helmet is mandatory, for which, he
answered in the affirmative. We therefore, find total lack of evidence on
this aspect.
8.As we already adverted to the Tribunal that monthly income
taken at Rs.15,000/-. Admittedly, the deceased was an Engineering
Graduate and was working in a private company earning Rs.20,000/- per
month, according to the pay slip. We also do not find any cross-
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C.M.A.No.1917 of 2023
examination on the quantum of income claimed. Even assuming that the
rider was not a wearing helmet and we should make certain deduction
towards the failure to wear a helmet, we find that such deduction would
result in compensation being lowered to a very unreasonable extent.
Though evidence has been produced to show that the deceased was earning
monthly Rs.20,000/-, the Tribunal has taken the monthly income only at
Rs.15,000/-. This itself is a lower fixation. We will not be justified in
reducing the compensation further fixing the contributory negligence.
9.We do not see any reason to interfere with the award, since the
award is just and reasonable. This Civil Miscellaneous Appeal therefore,
fails and it is accordingly, dismissed. No costs. Consequently, connected
miscellaneous is closed.
(R.S.M.,J.) (R.K.M.,J.)
01.09.2023
kkn
Internet:Yes
Index:No
Speaking
Nuetral Citation : No
https://www.mhc.tn.gov.in/judis
C.M.A.No.1917 of 2023
To:-
The Motor Accident Claims Tribunal,
Court of Small Causes, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1917 of 2023
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
KKN
C.M.A.No.1917 of 2023
and
C.M.P.No.18578 of 2023
01.09.2023
https://www.mhc.tn.gov.in/judis
