Madras High Court

Mathiyazhagan vs P.Sellamuthu on 28 October, 2024

Author: R.Hemalatha

Bench: R.Hemalatha

                                                                                    CMA.No.656 of 2023


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 28.10.2024

                                                          CORAM:

                                  THE HONOURABLE MRS.JUSTICE R.HEMALATHA

                                                     C.M.A.No.656 of 2023
                     1. Mathiyazhagan
                     2. Thamaraiselvi
                     3. Minor Ashok                                                 ... Appellant
                        Minor petitioner is Rep. by his father and
                        natural guardian Mathiyazhagan, 1st appellant
                                                             vs.
                     1. P.Sellamuthu

                     2. The Branch Manager,
                        The Oriental Insurance Co. Ltd.,
                        No.107, Navaladian Complex,
                        2nd floor, SBI upstairs,
                        Dindigul main road,
                        Karur - 639 005.
                        Policy No.454203/31/2020/2023                              ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against the Award, dated 05.12.2022 in
                     M.C.O.P.79/2021 on the file of the Motor Accident Claims Tribunal,
                     Principal District Court, Perambalur.

                                    For Appellants      : Mrs.C.Sangamithira for
                                                          Mr.C.Vidhusan

                                    For R2              : Mr.T.K.Premkumar

                     1/10
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                                                                                          CMA.No.656 of 2023


                                                       JUDGMENT

The appellants are the claimants in M.C.O.P.79/2021 on the file of

the Motor Accident Claims Tribunal, Salem. They filed the claim petition

under Sections 140 & 166 of the Motor Vehicles Act, 1988, seeking

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

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

took place on 11.11.2020.

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

On 11.11.2020, Thamizhselvan (since deceased) was riding a

two wheeler bearing Registration number TN 46 S 6620 on Coimbatore -

Karur main road and at about 5.30 p.m., when he was nearing PSR

Thirumana Mandapam, a speeding lorry bearing Registration number TN

39 H 2599 which was coming ahead of him, suddenly turned right hand

side, as a result of which, Thamizhselvan hit the lorry and sustained

injuries all over his body. He was immediately rushed to Government

hospital, Karur. However, he died on the way to hospital.

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

the driver of the lorry was the cause of the accident and that since the said

vehicle was insured with the second respondent, the Oriental 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

negligence on the part of the driver of the lorry and the deceased in the

ratio 50:50 and directed the second respondent, the Oriental Insurance

Company Limited to pay compensation of Rs.12,01,636/- (50% of total

compensation amount of Rs.24,03,272/-) 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 05.12.2022. The Tribunal also held that the liability

of the owner of the lorry and the insurer is joint and several.

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6. Aggrieved over the quantum of compensation and the

contributory negligence fastened on the part of the deceased to the extent

of 50% by the Tribunal, the claimants have filed the present appeals under

Section 173 of the Motor Vehicles Act, 1988.

7. Heard Mrs.C.Sangamithira, learned counsel appearing for the

appellants and Mr.T.K.Premkumar, learned counsel appearing for the

second respondent.

8.Negligence:

It is seen from the records that the accident took place on

Coimbatore - Karur main road. The lorry bearing Registration number TN

39 H 2599 was going ahead of the two wheeler driven by Thamizhselvan

(deceased). The eyewitness (P.W2) account is that the driver of the lorry

suddenly turned right hand side of the road without any signal or

indicator, as a result of which, the rider of the two wheeler hit the lorry.

The manner of the accident clearly shows that the driver of the lorry was

rash and negligent in driving his vehicle. The FIR (Ex.P1) was also

registered against the driver of the lorry. In the circumstances, fastening

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50% of contributory negligence on the part of the rider of the two wheeler

Thamizhselvan (deceased) by the Tribunal, is erroneous and the same is

hereby set aside.

9. Quantum:

According to the claimants, Thamizhselvan (deceased) aged 21

years, was working as a machine operator in a private company, earning a

sum of Rs.20,000/- per month. In the absence of income proof, the

Tribunal fixed the notional monthly income of the deceased as

Rs.15,166/-. It is pertinent to point out that the accident took place in the

year 2020. Considering the age of the deceased and the year of the

accident, this Court is of the opinion that fixing notional monthly income

of the deceased as Rs.16,000/- 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 121.

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Calculation :

Notional Income = Rs.16,000/-

after adding 40% Future Prospects = Rs.22,400/-

After 1/2 deduction = Rs.11,200/-

Loss of dependency :

= Rs.11,200/- x 12 x 18

= Rs.24,19,200/-

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.25,69,200 (24,19,200

+ 1,20,000 + 15,000 + 15,000 = 25,69,200) as shown in the following

tabular column:

                                  S.No.            Head          Amount granted by this court
                                  1.       Loss of dependency              Rs.24,19,200/-
                                  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/-
                                  Total                                    Rs.25,69,200/-



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