Madras High Court
Bhuvaneswari vs K.Selvam on 29 September, 2023
CMA Nos. 2064 & 2385 / 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal Nos. 2064 & 2385 of 2023
and
C.M.P. No. 22482 of 2023
C.M.A. No. 2064 of 2023:
1.Bhuvaneswari
2.Jeevanandham
3.Minor Kiruthika
4.Minor Keerthina
5.Govindhammal
6.Perumal
(Minors are rep. By their NF/Guardian
Mother, Bhuvaneswari) ... Appellants
Versus
1.K.Selvam
2.M/s. The New India Assurance Co.Ltd.,
Having Divisional Office at TP Hub,
Sedhu Krishna Trade Centre,
No.133/21-A, Trichy Main Road,
Gugai, Salem. ... Respondents
For Appellants : Mr. R. Navaneetha Krishnan.
For Respondents : Mr. J. Chandran for R2.
R1 – Ex parte.
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CMA Nos. 2064 & 2385 / 2023
C.M.A. No. 2385 of 2023:
M/s. The New India Assurance Co.Ltd.,
Having Divisional Office at TP Hub,
Sedhu Krishna Trade Centre,
No.133/21-A, Trichy Main Road,
Gugai, Salem. ...Appellant
Versus
1.Bhuvaneswari
2.Jeevanandham
3.Minor Kiruthika
4.Minor Keerthina
5.Govindhammal
6.Perumal
(Minors are rep. By their NF/Guardian
Mother, Bhuvaneswari)
7.K.Selvam ...Respondents
For Appellant : Mr. J. Chandran
For Respondents : Mr. R. Navaneetha Krishnan for R1 to R6.
R7 – Ex parte.
COMMON PRAYER : Civil Miscellaneous Appeals filed under Section
173 of the Motor Vehicles Act, 1988 against the Judgment and Decree in
M.C.O.P. No. 1465 of 2021 dated 01.06.2023 on the file of the Motor
Accident Claims Tribunal, Special District Judge, Salem.
COM MON JUDGMENT
The claimants have preferred the appeal in C.M.A. No. 2064 of
2023 seeking enhancement of compensation and the insurance company
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CMA Nos. 2064 & 2385 / 2023
has preferred the appeal in C.M.A. No. 2385 of 2023 challenging the
finding with regard to negligence in the award passed by the Tribunal in
M.C.O.P. No. 1465 of 2021 dated 01.06.2023.
2.Parties are hereinafter referred as per their rank in the claim
petition for the sake of convenience. Since both the appeals challenge
the very same award, they are taken up together for disposal.
3.The claimants filed the claim petition stating that on 17.07.2021
at about 12 hrs, when the deceased was riding his motorcycle and was
crossing a main road, the car belonging to the first respondent and
insured with the second respondent came in a rash and negligent manner
and dashed against the deceased, as a result of which, the deceased
sustained severe injuries and succumbed to injuries on 28.08.2021.
4.The first respondent remained ex parte before the Tribunal.
5.The second respondent filed a counter stating that the accident
took place due to the negligence of the deceased who had attempted to
cross a main road where he was not supposed to and was under the
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CMA Nos. 2064 & 2385 / 2023
influence of alcohol; that therefore, the second respondent was not liable
to pay compensation; and that in any case, the compensation claimed was
excessive and prayed for dismissal of the appeal filed by the claimants.
6.The appellants examined PW1 and marked Ex.P.1 to Ex.P.30.
The second respondent examined RW1 and did not mark any document.
7.The Tribunal after taking into consideration the oral and
documentary evidence held that the accident took place due to the
negligence of the driver of the vehicle belonging to the first respondent
and insured with the second respondent and directed the respondents to
pay a compensation of Rs.19,55,000/- to the claimants.
8.The learned counsel for the claimants submitted that the accident
took place on 17.07.2021 and the claimants had established before the
Tribunal that the deceased was working as an Agriculturist and also as a
milk vendor; that the Tribunal had fixed a very low monthly income of
Rs.10,000/- including Future Prospects while computing the loss of
income; that the award under the head Loss of Love and Affection is
meagre and prayed for enhancement of compensation and allowing the
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CMA Nos. 2064 & 2385 / 2023
appeal in C.M.A. No. 2064 of 2023.
9.Since the first respondent remained ex parte before the Tribunal,
learned counsel for the claimants sought permission of this Court to
dispense with the notice to the first respondent and has made an
endorsement to that effect. Hence, notice to the first respondent is
dispensed with.
10.The learned counsel for the Insurance company, per contra,
submitted that the Tribunal ought to have fixed contributory negligence
on the deceased; that it was their consistent case before the Tribunal that
the deceased was under the influence of alcohol and had suddenly
crossed the road and invited the accident; that the Tribunal had
erroneously fixed entire negligence on the driver of the car insured with
the second respondent; that PW1 admitted that the deceased did not have
valid driving license and prayed for allowing the appeal in C.M.A. No.
2385 of 2023.
11.The questions that arise for consideration in the instant appeal
are;
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CMA Nos. 2064 & 2385 / 2023
(i)Whether the Tribunal was right in fixing the entire negligence on the
driver of the car?
(ii)Whether the compensation awarded by the Tribunal is just and
reasonable?
12.As regards the first question, it is seen that the claimants had
examined PW1 wife of the deceased and marked Ex.P.1, FIR to prove
that the accident took place due to the negligence of the deceased. The
second respondent has not let in any rebuttal evidence. Therefore, the
finding of the Tribunal that the driver of the offending car was
responsible for the accident cannot be faulted. However, it is seen from
the evidence of PW1 that she had admitted in her deposition that the
deceased did not have license. Taking into consideration the consistent
view taken by this Court in such circumstances, this Court is of the view
that 10% contributory negligence has to be fixed for not possessing
license. Hence, 10% contributory negligence is fixed on the deceased
and 90% is fixed as contributory negligence on the driver of the car
insured with the second respondent.
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CMA Nos. 2064 & 2385 / 2023
13.As regards the quantum of compensation, it is seen that the
deceased was aged 46 years at the time of accident. PW1 had deposed
before the Tribunal that the deceased was working as an Agriculturist
and a milk vendor. Considering the age, avocation of the deceased, year
of the accident and the number of dependents, this Court is of the view
that it would be just and reasonable to fix the notional income as
Rs.16,000/- per month. The appellants are entitled to 25% enhancement
towards future prospects and the multiplier applicable is 13. Therefore,
the compensation under the head loss of income would be Rs.16,000 +
Rs.4,000 (25% of Rs.16,000) = Rs.20,000/- X 12 X 13 X ¾ (¼ deducted
towards personal expenses) = Rs.23,40,000/-. The first claimant is
entitled to Rs.44,000/- under the head loss of consortium. (Since the
claimants would be entitled to 10% enhancement as per the Judgment of
the Hon'ble Supreme Court in National Insurance Co. Ltd vs Pranay
Sethi and others reported in 2017 (2) TN MAC 27). Hence, the
compensation under the head loss of consortium is enhanced to
Rs.44,000/-. The second to sixth appellants would be entitled to
Rs.44,000/- each under the head loss of love and affection and hence, the
same is enhanced to 2,20,000/-. Further, the compensation under the
head Funeral Expenses is on the higher side and the same is reduced to
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CMA Nos. 2064 & 2385 / 2023
Rs.16,500/-. Since no amount has been awarded towards compensation
under the head loss of estate, Rs.16,500/- is awarded under the said head.
The compensation under the head Medical Expenses is just and the same
is confirmed. Thus, the award of the Tribunal is modified as follows;
S. Description Amount Amount Award
N awarded awarded confirmed or
o by by this enhanced or
Tribunal Court (Rs) granted
(Rs)
1. Loss of Income 11,70,000 23,40,000 Enhanced
2. Loss of love and 1,20,000 2,20,000 Enhanced
affection
3. Loss of consortium 40,000 44,000 Enhanced
4. Medical expenses 6,00,000 6,00,000 Confirmed
5. Funeral Expenses 25,000 16,500 Reduced
6. Loss of Estate --- 16,500 Granted
Total 19,55,000 32,37,000
After deducting 10% --- 29,13,300 Enhanced by
contributory negligence Rs.9,58,300/-
14.With the above modification, both the Civil Miscellaneous
Appeals are partly allowed and the compensation awarded by the
Tribunal at Rs.19,55,000/- is hereby enhanced to Rs.29,13,300/- 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 respondents are
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CMA Nos. 2064 & 2385 / 2023
directed to deposit the award amount 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 first and second appellants are
permitted to withdraw Rs.6,28,325/- each and the fifth and sixth
appellants are permitted to withdraw Rs.2,00,000/- each along with
proportionate interest and costs, less the amount if any, already
withdrawn. The shares of the minor appellants 3 and 4 of Rs.6,28,325/-
each are directed to be deposited in the interest bearing Fixed Deposit in
any of the Nationalized Banks till they attain majority and the first
appellant is permitted to withdraw the accrued interest once in every six
months. The appellants are directed to pay the necessary Court fee if any
on the enhanced award amount. No costs. Consequently, the connected
Miscellaneous Petition is closed.
29.09.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
SUNDER MOHAN, J
https://www.mhc.tn.gov.in/judis
CMA Nos. 2064 & 2385 / 2023
ay
To
1.The Motor Accident Claims Tribunal,
Special District Judge, Salem.
2.The Section Officer,
V.R. Section,
High Court of Madras,
Chennai.
C.M.A. Nos.2064 & 2385 of 2023
and
C.M.P. No. 22482 of 2023
Dated: 29.09.2023
https://www.mhc.tn.gov.in/judis
