Madras High Court
The Divisional Engineer(H) vs G.Narayanan on 2 August, 2024
CMA.(MD)No.424 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 02/08/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
CMA(MD)No.424 of 2024
and
CMP(MD)No.5516 of 2024
The Divisional Engineer(H),
Construction and Maintenance,
Thoothukudi. : Appellant/Respondent
Vs.
1.G.Narayanan
2.N.Krishnakumari : Respondents/Claimants
PRAYER:- Civil Miscellaneous Appeal is filed under
Section 173 of the Motor Vehicles Act, to set aside the
decree and judgment made in MCOP No.383 of 2017, dated
11/07/2022 on the file of the Motor Accident Claims
Tribunal/Principal District Judge, Thoothukudi.
For Appellant : Mr.D.S.Nedunchezian
Government Advocate
For Respondents : Mr.T.Selvakumaran
JUDGMENT
This Civil Miscellaneous Appeal is filed seeking an
order to set aside the award passed in MCOP No.383 of
2017 dated 11/07/2022 by the Motor Accident Claims
Tribunal/Principal District Judge, Thoothukudi.
https://www.mhc.tn.gov.in/judis
2.The facts in brief:-
On 11/05/2017 at about 07.45 pm in the night, the
deceased Ganesan was riding his motor bike bearing
registration No.TN-69-AR-0931 from Tiruchendur to
Arumuganeri by keeping left. When he was nearing
Adaikalapuram village, the driver of the respondent
vehicle bearing registration No.TN-31-J-7173 driven it in
a rash and negligent manner, came in the wrong side of
the road and hit the two wheeler. As a result of which,
Ganesan sustained injuries, taken to the Government
Hospital, Tiruchendur and later to the Thoothukudi
Government Medical College Hospital. But he died on
11/05/2017.
3.A case in Crime No.184 of 2017 was registered
against the driver of the Car for the offences under
sections 279, 337 IPC @ 304(A) IPC. Seeking compensation
of Rs.40,00,000/-, the claim petition was filed by the
dependents stating that the deceased was aged about 19
years at the time of the occurrence and earning
Rs.15,000/- by doing fish loading and selling business.
4.It was resisted by the appellant by filing
counter stating that the occurrence took place because of
the rash and negligent act on the part of the deceased
himself. He was not wearing proper helmet. He wore lungi
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and it loosened been untied due to the heavy wind. So he
tried to set right the lungi. On noticing the imbalance
driving of the deceased Ganesan, the appellant vehicle
driver turned the vehicle to the left. In spite of that,
the occurrence took place. Apart from that, other
customary denials were made.
5.Before the Tribunal, on the side of the claimants,
4 witnesses were examined and 11 documents were marked.
On the side of the appellant, one witness was examined
and one document was marked.
6.At the conclusion of the enquiry process,
regarding the aspect of negligence, the Tribunal recorded
a finding that from the evidence of the eye witness, it
concluded that the occurrence took place because of the
rash and negligent driving on the part of the appellant
vehicle driver.
7.Regarding the compensation, the notional income
was fixed at Rs.9,000/- per month. To that, 40% was added
towards future prospects. He was a bachelor. So, half of
the amount was deducted towards the personal and living
expenses. Multiplier '18' was adopted. By so, the loss
of dependency was calculated at Rs.13,60,800/-. To that,
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customary amounts were added. Finally, the Tribunal
awarded the total compensation amount as per the
tabulation given hereunder:-
Loss of income or loss of Rs.13,60,000/-
dependency
Loss of estate Rs. 16,500/-
Loss of filial consortium to Rs. 88,000/-
the petitioners 1 and 2
Funeral and transportation Rs. 16,500/-
expenses
Total Rs.14,81,800/-
8.Challenging the same, this appeal is preferred by
the appellant reiterating the very same grounds raised in
the counter before the Tribunal. Apart from that, it is
also contended before this court that the deceased was
riding the two wheeler without proper driving licence and
without wearing helmet. Apart from that, the two wheeler
driven by the deceased was not issued with proper
registration certificate. Regarding the compensation, it
was contended that there was no income proof.
9.Per contra, the learned counsel appearing for the
respondents would submit that these pleas are raised
before this court for the first time. No such plea was
raised either in the counter or at the time of argument.
New plea cannot be and should not be accepted.
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10.Regarding the first aspect of negligent aspect,
it is seen that the case was registered only against the
deceased by the jurisdictional police namely the
Inspector of Police, Thiruchendur in Crime No.184 of
2017. During the course of the investigation, it was
found that the occurrence took place because of the rash
and negligent act on the part of the deceased himself. So
the case was closed as 'abated.'
11.Before the Tribunal, the appellant driver was
examined as RW1. PW2 was the eye witness to the
occurrence. He has stated in his evidence that Ganesan
was proceeding before him, at that time, a Car bearing
registration No.TN-31-J-7173 was coming in the opposite
direction and hit the deceased. Another eye witness was
examined as PW3. He has also supported the evidence of
PW2, so also another witness namely PW4.
12.Per contra, on the side of the appellant, as
mentioned above, the driver of the offending vehicle was
examined as RW1. He has stated the very same facts
narrated in the counter.
13.From the evidence on both sides, it is seen that
the deceased was well as RW1 were proceeding in the
opposite directions. But the damage to the vehicle of the
appellant shows that the front right side bumper head
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lights were found damaged. So it is seen that the entire
front portion of the appellant vehicle got damaged in the
accident.
14.Had it been true that the deceased hit the four
wheeler, such a heavy damage would not have been caused.
Had it been so, if it occurred due to the rashness on the
part of the deceased, he would immediately lodged the
complaint against the deceased. But he did not take
proper steps in this direction. He is the Government
servant by job. So, he got more responsibility than the
deceased in informing the police about the occurrence.
But he remained silent. Only after the death of the
deceased, the complaint was given by the father of the
deceased. So, the investigation made by the Investigating
Officer on that account was disbelieved by the Tribunal.
15.In view of he above said circumstances, I am of
the considered view that the Tribunal recorded a finding
of fact by taking into account the manner of the
occurrence. So, the heavy damage caused to the entire
front portion of the appellant vehicle itself does
indicate the impact. Being the heavy vehicle driver, he
ought to have taken proper care and caution. But it
appears that he did not take proper care. So, I find
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that the evidence of RW1 is unbelievable even on going
through his evidence.
16.Regarding the compensation, the age of the
deceased was fixed at 19 on the information furnished by
the claimants themselves. Regarding the monthly income,
there is no direct evidence on that aspect. Even though
in the claim petition, it has been mentioned that the
deceased was doing fish loading and selling business, in
the complaint it has been stated that he is a auto driver
by profession. Why they have changed the version in the
claim petition is not known.
17.Now whatever it may be, he was doing some work
and earning money. Considering his age, the Tribunal
fixed Rs.9,000/- as monthly income is not on the higher
side. So, 40% added towards future prospects. Multiplier
'18' was adopted, since he was aged about 19. The loss of
dependency has been correctly fixed by following proper
procedure prescribed after deducting half of the amount
towards personal and living expenses. Regarding the
conventional amounts, in the light of the decision of the
Hon'ble Supreme Court in National Insurance Company Ltd.,
Vs. Pranay Sethi and others (2017(2)TN MAC 609 SC), it
requires recalculation as per the tabulation given as
under:-
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Head Award of the Award by this
Tribunal court.
Loss of Income or Loss Rs.13,60,800/- Rs.13,60,800/-
of dependency
Loss of estate Rs. 16,500/- Rs. 15,000/-
Loss of filial Rs. 88,000/- Rs. 80,000/-
consortium to the
claimants 1 and 2
Funeral and Rs. 16,500/- Rs. 15,000/-
Transportation expenses
Total Rs.14,81,800/- Rs.14,70,800/-
18.In the result, this Civil Miscellaneous Appeal is
dismissed in part, but however, the award is modified as
indicated above. The appellant is liable to pay the
modified award amount of Rs.14,70,800/- together with
interest at the rate of 7.5% per annum from the date of
petition till the date of deposit along with proportion
costs. The claimants are entitled to get their respective
shares as per the apportionment of the Tribunal. Excess
amount if any available, the Appellate is entitled to
get back the same from the Tribunal. No costs.
Consequently, connected Miscellaneous Petition is closed.
02/08/2024
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
To,
1.The Motor Accident Claims Tribunal/
Principal District Judge,
Thoothukudi.
2.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
02/08/2024
https://www.mhc.tn.gov.in/judis
