Madras High Court

Mrs. Dhanalakshmi vs V. Natarajan on 2 August, 2024

Author: N.Anand Venkatesh

Bench: N.Anand Venkatesh

                                                                Civil Miscellaneous Appeal No.1940 of 2024



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED :02.08.2024

                                                       CORAM

                         THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                       Civil Miscellaneous Appeal No.1940 of 2024


                     1. Mrs. Dhanalakshmi

                     2. Sadeesh

                     3.Minor Ranjith

                     4.Minor Gayathri

                     5. Rajeswari

                     The 3rd and 4th minor petitioners are
                     Rep. By their Natural guardian and next friend
                     mother 1st petitioner Dhanalakshmi                            ... Appellants


                                                          Vs.

                     1. V. Natarajan
                        [Amended the 1st respondent name as Natarajan
                        instead of Nagarajan vide Court order dated 24.06.2014 made in
                        CMP No.12376 of 2024 in CMA SR No.117812 of 2022
                        by NAVJ]

                     2. M/s.Tata AIG InsuranceCo Ltd.,
                        3rd Floor, A.A.Towers, Bye pass road,

                     1/10
https://www.mhc.tn.gov.in/judis
                                                                   Civil Miscellaneous Appeal No.1940 of 2024

                        Madurai – 625 016
                     [Amended as per order in I.A.No.01 /2019
                     allowed dated 28.11.2019 and
                     I.A.No.3 of 2019 allowed dated
                     28.01.2020]                                                      ... Respondents


                     Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
                     Act, 1988, against the judgement and decree made in M.C.O.P.No.318 of
                     2017 dated 17.09.2021 on the file of the Motor Accident Claims Tribunal
                     (In the Court of the Sessions Judge) at Perambalur.


                                       For Appellant     : Mr.N.Vijaya Baskar
                                       For Respondents : Mr.E.Rajadurai
                                                         for Mr.M.B.Raghavan for R2

                                                           *****

                                                         JUDGMENT

The claimants, who are the wife, children and mother of the

deceased Nagaraj not being satisfied with the quantum of compensation

awarded by the Tribunal have filed this appeal challenging the award

passed by Motor Accident Claims Tribunal (Chief Judge, Court of Small

Causes, Chennai in M.C.O.P.No.318 of 2017 dated 17.09.2021 .

2. The case of the claimants is that the deceased Nagaraj was

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travelling in a two wheeler on 30.03.2017 at Perambalur to Thuraiyur

main road and at about 9.00 a.m, when the vehicle reached near the scene

of occurrence, the offending vehicle which was a car was driven in a rash

and negligent manner and it came in the opposite direction and dashed on

the two wheeler. As a result, the deceased sustained grievous injuries. He

underwent treatment in a hospital and unfortunately, he succumbed to the

injuries on 20.04.2017. An FIR came to be registered against the driver of

the offending vehicle in Crime No.175 of 2017. It is under these

circumstances, the claim petition came to be filed before the Tribunal

seeking for payment of compensation.

3. The Tribunal on considering the facts and circumstances of

the case and on appreciation of oral and documentary evidence came to a

conclusion that the accident had taken place only due to the rash and

negligent driving on the part of the driver of the offending vehicle.

4. Having rendered such a finding, the Tribunal found that the

deceased was not possessing a valid driving license and therefore, the

Tribunal attributed 10% contributory negligence against the deceased.

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5. The Tribunal thereafter proceeded to fix the total

compensation at Rs.15,43,250/- under various heads as follows :-

                                  Sl.    Compensation awarded under             Amount
                                  No.            the head                       (in Rs.)
                                   1. Loss of Income / Dependency            Rs.11,81,250/-
                                   2. Consortium to wife                       Rs. 40,000/-
                                   3. Loss of Estate                           Rs. 15,000/-
                                   4. Funeral expenses                         Rs. 15,000/-
                                   5. Medical bills                          Rs.2,92,000/-
                                        Total                               Rs.15,43,250/-
                                        Deduction      for   Contributory Rs. 1,54,325/-
                                        negligence is 10% less
                                        Compensation payable                Rs.13,88,925/-

Out of the above compensation, a sum of Rs.13,88,925/-

(90%) with interest at the rate of 7.5% per annum was directed to be paid

by the 2nd respondent insurance company.

6. The claimants not being satisfied with the quantum of

compensation fixed by the Tribunal and questioning the 10% contributory

negligence attributed against the deceased, have filed this appeal seeking

for enhancement of compensation.

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7. Heard Mr.N.Vijaya Baskar, learned counsel for appellant

and Mr.E.Rajadurai, learned counsel appeared on behalf of

Mr.M.B.Raghavan, learned counsel for 2nd respondent Insurance

company.

8. This Court carefully considered the submissions made on

either side and the materials available on record.

9. This Court also carefully went through the award passed by

the Tribunal.

10. The first issue is with regard to 10% contributory negligence

that was attributed against the deceased. The Tribunal on appreciation of

evidence came to a conclusion that the accident had taken place only due

to the rash and negligent driving on the part of the driver of the offending

vehicle. However, the Tribunal proceeded to attribute 10% contributory

negligence against the deceased only on the ground that the deceased was

not having a valid driving license. It is now well settled that a person

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driving without a license by itself cannot give raise to an assumption that

there was negligence and that he had contributed to the negligence.

Useful reference can be made to the judgement of the Apex Court in

[Dinesh Kumar J Vs. National Insurance Company Limited and

others] reported in 2018 1 SCC 750. Therefore, this Court is inclined to

interfere with the findings of the Tribunal attributing 10% contributory

negligence on the claimant and the same is hereby set-aside.

11. The next issue is with regard to the quantum of

compensation. The deceased at the time of his demise was aged about 37

years. The Aadhar card of the deceased marked as Ex.P16, shows that the

deceased was only aged about 37 years at the time of his demise. The

claimants came up with a case that the deceased was working as a

sculptor on a contract basis and was earning Rs.700/- per day. There was

no evidence regarding the occupation of the deceased or the monthly

income earned by him. The Tribunal has fixed the notional income at

Rs.7,000/-, which is clearly on the lower side.

12. Considering the fact that the accident had taken place in the

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year 2017 and there are nearly five claimants who were dependent on the

income of the deceased, this Court is inclined to fix a sum of Rs.14,000/-

towards notional monthly income. Considering the age of the deceased as

37 years, 40% can be added towards future prospects. Thus, the

compensation under the head of loss of income / dependency is calculated

as follows :-

                                  Monthly Income              :      Rs.    14,000/-


                                  Add: Future Prospects       :      Rs. 5,600/-
                                  40% of Rs.14,000/-                 -----------------
                                                                     Rs. 19,600/-

                                  Annual Income               :      Rs. 2,35,200/-
                                  (19,600 * 12)

                                  Less : Personal expenses
                                  Rs.2,35,200/- *1/4          :      Rs. 58,800/-
                                                                     -----------------
                                                                     Rs. 1,76,400/-
                                  Multiplier                  :                 x15
                                                                     ------------------
                                  Loss of income/dependency :        Rs.26,46,000/-
                                                                     ------------------

13. The Tribunal has granted a sum of Rs.40,000/- under the

head of consortium to wife alone. No compensation has been granted

under the head of loss of love and affection for the other claimants.

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Therefore, this Court is inclined to fix a sum of Rs.1,60,000/- under this

head (Rs.40,000 each x 4) for claimants 2 to 5.

14. The compensation that has been granted under the other

heads are reasonable and it does not require the interference of this Court.

15. In the light of the above discussion, this Court modifies the

compensation in the following manner:-

                                  Sl.    Compensation awarded under             Amount
                                  No.            the head                       (in Rs.)
                                   1. Loss of Income / Dependency           Rs.26,46,000/-
                                   2. Consortium to wife                       Rs. 40,000/-
                                   3. Loss of love and affection              Rs.1,60,000/-
                                      Claimants 1 to 4 for Rs.40,000/-
                                      each
                                   4. Loss of Estate                           Rs. 15,000/-
                                   5. Funeral expenses                         Rs. 15,000/-
                                   6. Medical bills                          Rs.2,92,000/-
                                        Total                               Rs.31,68,000/-

16. The compensation awarded by the Tribunal at Rs.13,88,925/-

is enhanced to Rs.31,68,000/-. The Insurance company is directed to

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deposit the enhanced compensation, less the amount already deposited,

together with interest at 7.5% p.a. from the date of claim petition till the

date of deposit within a period of four weeks from the date of receipt of

this judgment. Insofar as the enhanced compensation is concerned, the

deficit court fee, if not paid, shall be paid by the appellant. The other

directions issued by the Tribunal with regard to the mode of payment of

compensation remains unaltered.

In the result, the Civil Miscellaneous Appeal is allowed in the

above terms. No costs.