Madras High Court
Harichandran vs M. Dhanapal on 26 September, 2023
CMA Nos. 609 & 295 / 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal Nos. 609 & 295 of 2022
1.Harichandran
2.Devaki
3.Minor Nandhini
(3rd Minor appellant is rep.by her father, NF
and Natural Guradian Harichandran 1st appellant) ... Appellants in
C.M.A. No. 609 of 2022
1.Sankar
2.Jayachithra ...Appellants in C.M.A. No.295 of 2022
Versus
1.M. Dhanapal
2.M/s.Iffco Tokio General Insurance Co. Ltd.,
Kingston Park 2nd floor,
No.19/1, Ramalinga Nagar,
Woriyur, Trichy – 620 003.
3.M.Periyasamy
4.The Branch Manager,
M/s.United India Insurance Co.Ltd.,
No.50-A Pallivasal Street,
Perambalur,
Policy No. 0920823116P109609968 .. Respondents in both the appeals
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CMA Nos. 609 & 295 / 2022
COMMON PRAYER : Civil Miscellaneous Appeal filed under Section
173 of the Motor Vehicles Act, 1988 against the Judgment and Decree in
M.C.O.P. Nos. 675 of 2017 and 286 of 2018 dated 30.11.2021 on the file
of the Motor Accidents Claims Tribunal Judge and Sessions Judge,
Mahila Court, Perambalur.
For Appellants
(in both) : Ms. L. Meena for Mr. C. Vidhusan.
For Respondents
(in both) : Mr. S. Arunkumar for R2.
Mr. M.J. Vijayaraghavan for R4.
R1 & R3 - Exparte.
COMMON JUDGMENT
The claimants have preferred the instant appeals seeking
enhancement of compensation in the common award passed by the
Tribunal in M.C.O.P. Nos. 675 of 2017 & 286 of 2018 dated 30.11.2021.
Since the deceased in both the cases died due to the same accident, the
above appeals are taken up together for disposal. Parties are hereinafter
referred as per their rank in the claim petitions for the sake of
convenience.
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CMA Nos. 609 & 295 / 2022
2.The claimants have filed the claim petitions stating that on
27.04.2017 at about 01.45 p.m., while Asai Rethinam (deceased in
respect of C.M.A. No. 295 of 2022) was travelling as pillion rider in the
two wheeler ridden by his friend one Pradheesh (deceased in respect of
C.M.A. No. 609 of 2022) which was proceeding in a public road, a two
wheeler belonging to the first respondent and insured with the second
respondent came in a rash and negligent manner and dashed against the
two wheeler of the deceased, as a result of which both the rider and the
pillion rider sustained fatal injuries. The owner of the two wheeler
ridden by the deceased was also impleaded along with the insurance
company.
3.The first and third respondents remained ex parte before the
Tribunal.
4.The second respondent filed a counter stating that the accident
took place only due to the negligence of the deceased; and that in any
case, the compensation claimed was excessive and prayed for dismissal
of the appeals.
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CMA Nos. 609 & 295 / 2022
5.The fourth respondent filed a counter stating that the accident
took place due to the negligence of the Hero Splender two wheeler
insured with the second respondent herein.
6.Since the claim petitions were filed by the dependents of both the
deceased who died in the same accident, both the claim petitions were
taken up together by the Tribunal and disposed of by the common order.
The claimants examined PW1 to PW3 and marked Ex.P.1 to Ex.P.15.
The second respondent examined RW1 and marked Ex.R.1 to Ex.R.3.
7.The Tribunal after taking into consideration the oral and
documentary evidence held that the accident took place due to the rash
and negligent driving of the rider of the two wheeler insured with the
second respondent as well as on the deceased who rode the two wheeler
and fixed 90% contributory negligence on the rider of the two wheeler
insured with the second respondent and 10% contributory negligence on
the deceased in respect of C.M.A. No. 609 of 2022 who rode the two
wheeler and directed the second respondent to pay a compensation of
Rs.7,86,000/- to the appellants in C.M.A. No. 295 of 2022 and a
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CMA Nos. 609 & 295 / 2022
compensation of Rs.7,07,400/- to the appellants in C.M.A. No. 609 of
2022. The Tribunal has also exonerated third and fourth respondents
who are the owner and insurer of the two wheeler ridden by the deceased.
8.The learned counsel for the claimants submitted that the award of
the Tribunal is meagre in as much as the notional income fixed by the
Tribunal at Rs.5,000/- in both the claim petitions is meagre which
requires enhancement. Further, the learned counsel submitted that the
appellants in both the claim petitions were not awarded compensation
under the head Loss of love and affection. The learned counsel further
submitted that the Tribunal erred in fixing 10% contributory negligence
on the deceased (rider) in respect of C.M.A. No. 609 of 2022 and prayed
for enhancement of compensation.
9.Since the first and third respondents remained ex parte before the
Tribunal, the learned counsel for the claimants sought permission of this
Court to dispense with the notice to the first and third respondents.
Hence, notice to the first and third respondents is dispensed with.
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CMA Nos. 609 & 295 / 2022
10.Mr. S. Arunkumar, learned counsel for the second respondent
submitted that both the deceased who are the rider and pillion rider were
minors, the compensations awarded by the Tribunal is just and
reasonable and no interference is called for.
11.Mr. M.J. Vijayaraghavan, learned counsel for the fourth
respondent submitted that the award of the Tribunal fixing entire liability
on the second respondent is reasonable and no interference is called for.
12.The questions that arises for consideration in the instant appeals
are;
(i)Whether the Tribunal was right in fixing 10% contributory negligence
on the deceased in respect of C.M.A. No. 609 of 2022?
(ii)Whether the compensations awarded by the Tribunal is just and
reasonable.
13.As regards the first question, it is seen that in C.M.A. No. 609
of 2022, the rider of the two wheeler is the deceased. The deceased was
aged 17 years at the time of the accident. Admittedly, he did not have
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CMA Nos. 609 & 295 / 2022
any driving license. Hence, fixing of 10% contributory negligence on the
deceased is justified and no interference is called for.
14.As far as C.M.A. No. 609 of 2022 is concerned, the Tribunal
had fixed a notional income of Rs.5,000/-. The claimants had filed
Ex.P.7, identity card to show that the deceased was a diploma student
studying in a Polytechnic College. Considering the age, the year of the
accident and the fact that the deceased was a student, this Court is of the
view that the notional income of the deceased can be fixed at Rs.10,000/-
Since the deceased was aged 17 years at the time of the accident, the
appellants are entitled to 40% future prospects and the multiplier
applicable is 18. Since the deceased was a bachelor, 50% has to be
deducted towards personal expenses. Therefore, the compensation under
the head Loss of Dependency would be Rs.10,000/- + 4,000 (40% of
Rs.10,000) = Rs.14,000/- X 12 X 18 X1/2= Rs.15,12,000/-. The first two
appellants would be entitled to Rs.40,000/- each under the head Loss of
filial consortium and the third appellant would be entitled to Rs.40,000/-
under the head Loss of Love and Affection. Thus, Rs.1,20,000/- is
awarded under those heads. The award under the other heads are just and
the same are confirmed. Thus, the award of the Tribunal is modified as
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CMA Nos. 609 & 295 / 2022
follows;
S. Description Amount Amount Award
No awarded awarded by confirmed or
by this Court enhanced or
Tribunal (Rs) granted
(Rs)
1. Loss of Dependency 7,56,000 15,12,000 Enhanced
2. Loss of filial --- 1,20,000 Granted
consortium and loss of
Love and Affection
(Appellants 1 to 3)
3. Loss of Estate 15,000 15,000 Confirmed
4. Funeral Expenses 15,000 15,000 Confirmed
Total 7,86,000 16,62,000
After deducting 10% 7,07,400/- 14,95,800/- Enhanced by
contributory Rs.7,88,400/-
negligence
15.As far as C.M.A. No. 295 of 2022 is concerned, the pillion
rider is the deceased. He was aged 19 years at the time of accident. He
was also a diploma student studying in a Polytechnic College. The
Tribunal had fixed Rs.5,000/- per month as notional income. Considering
the age, the year of the accident and the fact that the deceased was a
student, this Court is of the view that the notional income of the deceased
can be fixed at Rs.10,000/- Since the deceased was aged 17 years at the
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CMA Nos. 609 & 295 / 2022
time of the accident, the appellants are entitled to 40% future prospects
and the multiplier applicable is 18. Since the deceased was a bachelor,
50% has to be deducted towards personal expenses. Therefore, the
compensation under the head Loss of Dependency would be Rs.10,000/-
+ 4,000 (40% of Rs.10,000) = Rs.14,000/- X 12 X 18 X1/2=
Rs.15,12,000/-. The appellants would be entitled to Rs.40,000/- each
under the head Loss of filial consortium Thus, Rs.80,000/- is awarded
under the said head. The award under the other heads are just and the
same are confirmed. Thus, the award of the Tribunal is modified as
follows;
S. Description Amount Amount Award
No awarded awarded by confirmed or
by this Court enhanced or
Tribunal (Rs) granted
(Rs)
1. Loss of Dependency 7,56,000 15,12,000 Enhanced
2. Loss of filial --- 80,000 Granted
consortium
3. Loss of Estate 15,000 15,000 Confirmed
4. Funeral Expenses 15,000 15,000 Confirmed
Total 7,86,000 16,22,000 Enhanced by
Rs.8,36,000/-.
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CMA Nos. 609 & 295 / 2022
16.With the above modifications, these Civil Miscellaneous
Appeals are partly allowed and the compensation awarded by the
Tribunal at Rs.7,07,400/- in respect of C.M.A. No. 609 of 2022 is hereby
enhanced to Rs.14,95,800/- and the compensation awarded by the
Tribunal at Rs.7,86,000/- in respect of C.M.A. No. 295 of 2022 is hereby
enhanced to Rs.16,22,000/- 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 is directed to deposit the award
amounts now determined by this Court along with proportionate interest
and costs, less the amount already deposited, if any, within a period of
six (6) weeks from the date of a receipt of copy of this Judgment. On
such deposit, the appellants in C.M.A. No. 295 of 2022 and the
appellants 1 and 2 in C.M.A. No. 609 of 2022 are permitted to withdraw
their respective shares of the award amounts along with proportionate
interest and costs, less the amount if any, already withdrawn as per the
apportionment fixed by the Tribunal. The share of the minor third
appellant in C.M.A. No. 609 of 2022 is directed to be deposited in an
interest bearing Fixed Deposit till she attains majority and the first
appellant is permitted to withdraw the accrued interest once in every six
months. The appellants in both the appeals are directed to pay the
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CMA Nos. 609 & 295 / 2022
necessary Court fee if any on the enhanced award amounts. No costs.
25.09.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
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CMA Nos. 609 & 295 / 2022
SUNDER MOHAN, J
ay
To
1. The Motor Accidents Claims Tribunal
Judge and Sessions Judge, Mahila Court, Perambalur.
2.The Section Officer,
V.R. Section,
High Court of Madras,
Chennai.
C.M.A. Nos. 609 & 295 of 2022
Dated: 26.09.2023
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