Madras High Court

M.S.Kumar vs V.Ramesh on 22 October, 2024

Author: R.Hemalatha

Bench: R.Hemalatha

                                                                                   CMA.No.1029 of 2023


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 22.10.2024

                                                      CORAM:

                                  THE HONOURABLE MRS.JUSTICE R.HEMALATHA

                                               C.M.A.No.1029 of 2023

                     1. M.S.Kumar
                     2. K.Manjula
                     3. Selvi K.Kalpana                                                ... Appellants
                                                            vs.
                     1. V.Ramesh

                     2. Shri Ram General Insurance Co. Ltd.,
                        No.66, 2nd Floor, City Center Complex,
                        Thirumalaipillai Road,
                        T.Nagar, Chennai - 600 017.                               ... Respondents



                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988, against the Award, dated 23.10.2018 in
                     M.C.O.P.6149/2015 on the file of the Motor Accident Claims Tribunal,
                     Chief Judge, Small Causes Court, Chennai.

                                           For Appellants         : Mr.M.Gouthaman

                                           For R2                 : Mrs.R.Sreevidhya




                     1/11
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                                                                                     CMA.No.1029 of 2023




                                                    JUDGMENT

The appellants are the claimants in M.C.O.P.6149/2015 on the

file of the Motor Accident Claims Tribunal, Chennai. They filed the claim

petition under Section 166 of the Motor Vehicles Act, seeking

compensation of Rs.50,00,000/- for the death of one K.Lokesh (son of

claimants 1 and 2; brother of claimant 3) in a road accident that occurred

on 19.03.2015.

2. The brief case of the appellants / claimants is as follows :

On 19.03.2015, K.Lokesh (deceased) was riding a two wheeler

bearing Registration number TN 19 M 3541 on Canal Road,

Mamallapuram and at about 8.30 a.m., when he was nearing Ponchery

Matric Higher Secondary School, Mamallapuram, a speeding van bearing

Registration number TN 21 AW 4207, hit the two wheeler, resulting in

his instantaneous death.

3. According to the claimants, the rash and negligent driving of

the driver of the van bearing Registration number TN 21 AW 4207 was

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the cause of the accident and that since the said vehicle was insured with

the second respondent, the Shri Ram General Insurance Company

Limited, the owner and the insurer are jointly and severally liable to pay

compensation to them.

4. In the Tribunal, the owner of the vehicle remained absent and

was set exparte. The second respondent, Insurance company resisted the

claim petition on all the grounds available to the insurer under Section

170 of the Motor Vehicles Act.

5. The Tribunal after analysing the evidence on record, fastened

85% negligence on the part of the driver of the van and 15% negligence

on the part of the deceased as he was not wearing helmet at the time of

accident and directed the second respondent, Insurance Company to pay

compensation of Rs.17,73,100/- (out of total compensation of

Rs.20,86,000/-) together with interest at the rate of 7.5% per annum from

the date of petition till the date of realisation vide, its orders dated

23.10.2018. The Tribunal also held that the liability of the owner of the

van and the insurer is joint and several.

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6. Aggrieved over the quantum of compensation and

challenging 15% contributory negligence fastened on the part of the

deceased (rider of the two wheeler), the appellants / claimants have filed

the present appeal under Section 173 of the Motor Vehicles Act.

7. Heard Mr.M.Gouthaman, learned counsel appearing for the

appellants and Mrs.R.Sreevidhya, learned counsel for the second

respondent.

8. Mr.M.Gouthaman, learned counsel appearing for the

appellants/claimants contended that K.Lokesh (deceased), aged 20 years

was working as a Mechanical Engineer in a private concern, earning a

sum of Rs.25,000/- per month. However, the Tribunal had fixed a meagre

sum of Rs.10,000/- as his notional monthly income. He, therefore prayed

for enhancement of compensation. He further contended that the Tribunal

was wrong in fastening contributory negligence to the extent of 15% on

the part of K.Lokesh (deceased) and prayed for setting aside the orders

passed by the Tribunal.

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9. Per contra, Mrs.R.Sreevidhya, learned counsel appearing for

the second respondent, contended that the Award passed by the Tribunal

is based on the well laid principles of law which were in vogue at the time

of passing of the order and therefore, the same need not be disturbed at

this stage.

10. Negligence:

A perusal of the records shows that FIR (Ex.P1) was registered

against the driver of the van bearing Registration number TN 21 AW

4207 by the Inspector of Police, E1 Mamallapuram Police Station,

Kancheepuram District. After conducting investigation, the Inspector of

Police, laid a final report against the driver of the van before the Judicial

Magistrate, Thirukazhukundram for the offences punishable under

Section 279 and 304 (A) I.P.C. However, the Tribunal had fixed 15%

contributory negligence on the part of the rider of the two wheeler since

he was not wearing helmet at the time of the accident. The manner of the

accident shows that the driver of the van was rash and negligent in driving

his vehicle. There is nothing on record to show that the rider of the two

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wheeler contributed to the accident. In the circumstances, fastening 15%

of contributory negligence on the part of K.Lokesh (deceased) by the

Tribunal is erroneous and the same is hereby set aside.

11. Quantum:

According to the claimants, K.Lokesh (deceased) aged 20 years,

was working as an engineer in a private concern, earning a sum of

Rs.25,000/- per month. In the absence of satisfactory income proof, the

Tribunal fixed the notional monthly income of the deceased as

Rs.10,000/-. It is pertinent to point out that the accident took place in the

year 2015 and in the facts and circumstances, this Court is of the opinion

that fixing notional monthly income of the deceased as Rs.14,000/- would

meet the ends of justice. As per the decision of the Supreme Court of

India in National Insurance Co. vs Pranay sethi and others reported in

2017 (2) TNMAC 601, 40% is added towards future prospects of the

deceased. The deceased died as a bachelor and hence, 50% is deducted

towards his personal expenses. The proper multiplier to be adopted in the

instant case is 18 as per the decision rendered in Sarla Verma and others

vs. Delhi Transport Corporation and another reported in (2009) 6 SCC

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Calculation :

Notional Income = Rs.14,000/-

after adding 40% Future Prospects = Rs.19,600/- After 1/2 deduction = Rs.9,800/-

Loss of dependency:

= Rs.9,800/- x 12 x 18 = Rs.21,16,800/-

In addition to that the claimants are entitled to Rs.1,20,000/- (40,000/-x3),

Rs.15,000/- and Rs.15,000/- towards loss of consortium, loss of estate and

funeral expenses respectively as per the decision in National Insurance

Co. vs Pranay sethi and others (cited supra). Thus, the claimants are

entitled to a total compensation of Rs.22,66,800/- (21,16,800 + 1,20,000

+ 15,000 + 15,000 = 22,66,800) as shown in the following tabular

column:

                                       S.No.               Head               Amount granted
                                                                               by this court
                                  1.           Loss of dependency             Rs. 21,16,800 /-
                                  2.           Loss of consortium               Rs.1,20,000/-
                                               (Rs.40,000/- x 3)
                                  3.           Funeral expenses                  Rs.15,000/-
                                  4.           Loss of Estate                    Rs.15,000/-



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                                     S.No.                   Head                Amount granted
                                                                                  by this court
                                                                         Total    Rs.22,66,800/-