Madras High Court
Arjunan vs Duraisamy on 22 September, 2023
C.M.A.Nos.2501 & 2502 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
C.M.A.Nos.2501 & 2502 of 2022
1.Arjunan
2.Anandharaj
3.Sreemathi Appellants in C.M.A.No.2501 of 2022
Arjunan Appellant in C.M.A.No.2502 of 2022
Vs
1.Duraisamy
2.Elango
3.The Manager,
United India Insurance Company Limited,
No.3, Giriram Buildings Main Road,
Gobichettipalayam. Respondents in both C.M.As
COMMON PRAYER: Civil Miscellaneous Appeals filed under Section
173 of the Motor Vehicles Act, against the common judgment and decree
dated 16.11.2021 made in M.C.O.P.Nos.233 & 237 of 2019 on the file of
the Motor Accident Claims Tribunal, IV Additional District and Sessions
Judge, Bhavani.
In both C.M.As.
For appellants : Mr.M.Lokesh
For R2 : Ms.I.Malar for R3
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C.M.A.Nos.2501 & 2502 of 2022
COMMON JUDGMENT
Since both the appeals arise out of the same accident and
common award, they are disposed of by this common judgment.
2.These appeals have been filed by the claimants seeking
enhancement of compensation awarded by the Motor Accident Claims
Tribunal, IV Additional District and Sessions Judge, Bhavani, in
M.C.O.P.Nos.233 & 237 of 2019.
3. The appellants filed M.C.O.P.Nos.233 & 237 of 2019 on the
file of the Motor Accident Claims Tribunal, IV Additional District and
Sessions Judge, Bhavani, claiming compensation for the injuries
sustained by the appellant in C.M.A.No.2502 of 2022 and for the death
of one Ruckmani, the wife of the first appellant in C.M.A.No.2501 of
2022 who died in the accident that took place on 26.04.2019.
4.According to the appellants, on 26.04.2019 at about 03.00 p.m.,
while the appellant in C.M.A.No.2502 of 2022 was riding his two
wheeler along with his wife, the deceased Ruckmani in C.M.A.No.2501
of 2022 on a public road, the driver of the lorry belonging to the second
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C.M.A.Nos.2501 & 2502 of 2022
respondent, insured with the third respondent, came in a rash and
negligent manner and hit behind the two wheeler and caused the accident;
and as a result of which, the deceased Ruckmani sustained fatal injuries
and the appellant in C.M.A.No.2502 of 2022 sustained grievous injuries.
5. The respondents 1 and 2, who are the driver and owner of the
offending vehicle, remained ex-parte before the Tribunal.
6. The third respondent filed a counter stating that the accident did
not take place due to the negligence of the offending vehicle and in any
event, the compensation claimed by the appellants is excessive and
prayed for dismissal of the claim petitions.
7.Before the Tribunal, the appellants examined three witnesses as
P.W.1 to P.W.3 and marked 32 documents as Exs.P1 to P32. The third
respondent/Insurance Company did not let in any oral and documentary
evidence.
8. The Tribunal considering the pleadings, oral and documentary
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C.M.A.Nos.2501 & 2502 of 2022
evidence, held that the accident occurred due to rash and negligent
driving by the driver of the lorry belonging to the second respondent,
fixed 85% negligence on the part of the driver of the second respondent
and 15% negligence on the part of the deceased as well as the appellant
in C.M.A.No.2502 of 2022 for not possessing valid driving license,
awarded a sum of Rs.11,45,600/- as compensation to the appellants in
C.M.A.No.2501 of 2022 and a sum of Rs.6,42,350/- as compensation to
the appellant in C.M.A.No.2502 of 2022. The Tribunal had directed the
third respondent/Insurance Company being insurer of the said lorry to
pay a sum of Rs.9,73,760/- i.e. 85% of the award amount as
compensation to the appellants in C.M.A.No.2501 of 2022 and to pay a
sum of Rs.5,45,997/- i.e. 85% of the award amount as compensation to
the appellant in C.M.A.No.2502 of 2022.
9. The appellants have come out with these appeals challenging the
portion of the award fixing 15% contributory negligence on the part of
the deceased and the appellant in C.M.A.No.2502 of 2022 as well as for
enhancement of compensation.
10. The learned counsel for the appellants submitted that the
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C.M.A.Nos.2501 & 2502 of 2022
Tribunal had erroneously deducted 15% contributory negligence even for
the deceased who was a pillion rider on the ground that the rider of the
two wheeler did not have valid driving license at the time of accident. The
learned counsel further submitted that the notional income of the
deceased fixed by the Tribunal is meagre. As regards the
injured/appellant in C.M.A.No.2502 of 2023, the learned counsel
submitted that the notional income fixed by the Tribunal is very meagre
and also not awarded any amount towards attendent charges. Hence, he
prayed for enhancement of compensation in both the appeals.
11. The respondents 1 and 2 remained ex parte before the Tribunal
and hence, the learned counsel for the appellants submitted that notice to
the respondents 1 and 2 may be dispensed with and he has also made an
endorsement to that effect. Hence, notice to R1 and R2 is dispensed with.
12. Per contra, the learned counsel for the third respondent
submitted that the appellant in C.M.A.No.2502 of 2022 rode the two
wheeler at high speed without wearing helmet and was solely responsible
for the accident. The learned counsel further submitted that the appellants
had not established the avocation and income of the deceased or injured
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C.M.A.Nos.2501 & 2502 of 2022
before the Tribunal. In such circumstances, the Tribunal was right in
fixing the notional income and hence, no interference is called for.
Therefore, he prayed for dismissal of both the appeals.
13. The questions involved in both the appeals are-
i) Whether the Tribunal was right in fixing 15%
contributory negligence on the appellant in the
C.M.A.No.2502 of 2022 and on the deceased concerned in
C.M.A.No.2501 of 2022?
ii) Whether the quantum of compensation awarded
by the Tribunal is just and reasonable?
14.On perusal of the records, it is seen that the Tribunal has fixed
15% contributory negligence on the rider of the two wheeler for not
possessing valid driving license. Considering the nature of accident, this
Court is of the view that the accident took place entirely due to negligence
of the driver of the lorry, insured with the third respondent. Since the
rider did not have valid driving license, this Court is of the view that it
would be just and reasonable to fix 10% contributory negligence on the
rider of the two wheeler/appellant in C.M.A.No.2502 of 2022. However,
the finding of the Tribunal that the compensation payable for the death of
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C.M.A.Nos.2501 & 2502 of 2022
the deceased Ruckmani is liable for deduction on account of contributory
negligence is erroneous. The deceased cannot be held liable for any
contributory negligence. Therefore, the third respondent is liable to pay
entire compensation determined insofar as the deceased Ruckmani is
concerned.
15.C.M.A.No.2501 of 2022:
On perusal of the records, it is seen that the appellants had
established that the deceased was doing saree business through the
evidence of P.W.1, the husband of the deceased. He has also marked
Exs.P23 to P26, the income tax returns of the deceased for the
assessment years 2008-09 to 2011-12. As per Ex.P26, the income tax
return filed by the deceased for the assessment year 2011-12, the gross
total income is Rs.2,01,390/-. It is seen from Exs.P23 to P26, the income
tax return pertains to the years from 2008 to 2012. However, no
document has been filed to prove the income earned by the deceased at
the time of accident. The Tribunal considered the age of the deceased to
be between 52 and 55. The Postmortem Report states that the deceased
was aged 52 years. Hence, the said age is taken into consideration for
computing compensation. Considering the age of the deceased, her
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C.M.A.Nos.2501 & 2502 of 2022
avocation and the year of accident, this Court is of the view that it would
be just and reasonable to fix the notional income as Rs.15,000/- per
month. The appellants would be entitled to 10% enhancement towards
future prospects. By applying multiplier '11' and deducting 1/3 rd towards
personal expenses of the deceased, the award of compensation under the
head loss of dependency is modified as:
Rs.15,000/- + 1,500/- [Rs.15,000/- X 10%] X 12 X 11 X 2/3 =
Rs.14,52,000/-.
The amount awarded by the Tribunal under the head loss of love and
affection is excessive and hence, the same is reduced to Rs.80,000/-. The
compensation awarded under the other heads are just and reasonable and
the same are hereby confirmed. Thus, the compensation awarded by the
Tribunal is modified as follows:
Sl. Description Amount Amount Award
No awarded by awarded confirmed or
Tribunal by this enhanced or
(Rs) Court (Rs) granted
1. Loss of 9,68,100/- 14,52,000/- Enhanced
Dependency
2. Loss of parental 1,00,000/- 80,000/- Reduced
consortium to the
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C.M.A.Nos.2501 & 2502 of 2022
petitioners 1 and 2
3. Loss of spousal 40,000/- 40,000/- Confirmed
consortium to 1st
petitioner
4. Loss of estate, 30,000/- 30,000/- Confirmed
Funeral expenses
5. Transportation 7,500/- 7,500/- Confirmed
Total 11,45,600/- 16,09,500/- Enhanced by
Rs.4,63,900/-
16.C.M.A.No.2502 of 2023:
On perusal of the records, it is seen that the appellant has taken
treatment as in-patient in two different spells from 26.04.2023 to
29.04.2023 and from 29.04.2023 to 13.05.2019. But, the Tribunal has
not awarded any amount under the head attendant charges. Considering
the period of treatment, this Court is of the view that the appellant would
be entitled to Rs.10,000/- towards attendant charges. Further, the
notional income determined by the Tribunal for commuting loss of
earning at Rs.9,000/- is meagre. Considering the fact that the appellant
was owned a dyeing factory, this Court is of the view that it would be just
and reasonable to fix the notional income as Rs.17,000/- per month for
the appellant. Therefore, loss of earning for a period of five months
determined by the Tribunal is enhanced to Rs.85,000/- (Rs.17,000/- x 5).
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C.M.A.Nos.2501 & 2502 of 2022
The compensation awarded under the other heads is just and reasonable
and the same is hereby confirmed. Thus, the compensation awarded by
the Tribunal is modified as follows:
Sl. Description Amount Amount Award
No awarded by awarded confirmed or
Tribunal by this enhanced or
(Rs) Court (Rs) granted
1. Pain and suffering 60,000/- 60,000/- Confirmed
2. Loss of earning 45,000/- 85,000/- Enhanced
3. Disability 1,00,000/- 1,00,000/- Confirmed
4. Medical Bills 4,19,850/- 4,19,850/- Confirmed
5. Transportation 7,500/- 7,500/- Confirmed
6. Extra nourishment 7,000/- 7,000/- Confirmed
7. Damage to clothing 3,000/- 3,000/- Confirmed
and articles
8. Attendant charges - 10,000/- Granted
Total 6,42,350/- 6,82,350/-
Less contributory 69,235/-
96,353/-
negligence (@10) Enhanced by
(@15%)
Net compensation 6,23,115/- Rs.77,118/-
Payable 5,45,997/-
17. In the result
(i) C.M.A.No.2501 of 2022 is partly allowed and the compensation
awarded by the Tribunal at Rs.11,45,600/- is hereby enhanced to
Rs.16,09,500/- together with interest at 7.5% per annum (excluding the
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C.M.A.Nos.2501 & 2502 of 2022
default period, if any) from the date of petition till the date of deposit. The
appellants/claimants are directed to pay necessary Court fee, if any, on
the enhanced compensation. The third respondent/Insurance Company is
directed to deposit the award amount now determined by this Court along
with interest and costs, less the amount already deposited, if any, within a
period of six weeks from the date of receipt of a copy of this judgment.
On such deposit, the appellants are permitted to withdraw their respective
share of the award amount now determined by this Court as per the
apportionment fixed by the Tribunal along with proportionate interest and
costs, less the amount if any, already withdrawn. No costs.
(ii)C.M.A.No.2502 of 2022 is partly allowed and the compensation
awarded by the Tribunal at Rs.6,92,350/- is hereby enhanced to
Rs.6,82,350/- 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
appellant is directed to pay necessary Court fee, if any, on the enhanced
compensation. The third respondent/Insurance Company is directed to
deposit 90% of the award amount now determined by this Court i.e.,
Rs.6,23,115/- along with interest and costs, less the amount already
deposited, if any, within a period of six weeks from the date of receipt of
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C.M.A.Nos.2501 & 2502 of 2022
a copy of this judgment. On such deposit, the appellant is permitted to
withdraw the award amount now determined by this Court along with
interest and costs, less the amount if any, already withdrawn. No costs.
22.09.2023
vkr
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To:
1.The Motor Vehicle Accident Tribunal,
IV Additional District and Sessions Judge,
Bhavani.
2.The Section Officer,
VR Section, High Court, Madras.
SUNDER MOHAN, J.
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C.M.A.Nos.2501 & 2502 of 2022
vkr
C.M.A.Nos.2501 & 2502 of 2022
22.09.2023
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