Madras High Court

Sellaiya vs Ramasamy on 30 October, 2024

Author: R.Hemalatha

Bench: R. Hemalatha

                                                                                    CMA.No.1300 of 2024


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 30.10.2024

                                                         CORAM:

                                  THE HONOURABLE MRS.JUSTICE R. HEMALATHA

                                                 C.M.A.No.1300 of 2024

                     1. Sellaiya
                     2. Rasathi                                               ... Appellants

                                                            vs.
                     1. Ramasamy
                     2. The Divisional Manager,
                     The Oriental Insurance Company Limited,
                     No.4, Promenade Road,
                     2nd Floor, Cantonment, Trichy – 1.                       ... Respondents



                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against the Award dated 12.03.2024 in
                     M.C.O.P. 209 of 2022 on the file of the Motor Accident Claims Tribunal,
                     Principal District Court, Perambalur.


                                    For Appellants     : Ms.C.Sangamithirai
                                                        for Mr.C.Vidhusan
                                    For R2             : Mr.N.Sampath




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                                                                                     CMA.No.1300 of 2024




                                                    JUDGMENT

The appellants are the claimants in M.C.O.P. 209 of 2022 on the

file of the Motor Accident Claims Tribunal, Perambalur. They filed the

claim petition under Sections 140 and 166 of the Motor Vehicles Act,

1988 seeking compensation of Rs.30,00,000/- for the death of their son

Paneer Selvam in a road accident that occurred on 21.12.2021.

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

On 21.12.2021, Paneer Selvam (since deceased) was riding his

two wheeler bearing Registration Number TN-46-J-0982 on Kiliyur –

V.Agaram road and at about 9.00 a.m., a speeding Tata Sumo car bearing

Registration Number TN-46-W-7555 came in the opposite direction and

hit the two wheeler, as a result of which, Paneer Selvam (deceased)

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

Government Hospital, Perambalur. However, he succumbed to injuries on

24.12.2021.

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

the driver of the Tata Sumo car bearing Registration Number TN-46-W-

7555 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 Tata Sumo car remained

absent and was set ex parte. The second respondent resisted the claim

petition on all the grounds available to the insurer under Section 170 of

the Motor Vehicles Act.

5. The Tribunal, vide its orders dated 12.03.2024, fastened

negligence on the part of the driver of the Tata Sumo Car bearing

Registration Number TN-46-W-7555 and the deceased in the ratio 70:30

and directed the second respondent to pay compensation of

Rs.17,39,567/- (70% of the total compensation of Rs.24,85,096/-) to the

appellants (claimants) together with interest at the rate of 7.5% per annum

from the date of the petition till the date of realisation. The Tribunal also

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held that the liability of the owner of the car and the insurer is joint and

several.

6. Aggrieved over the quantum of compensation and also

fastening negligence on the part of the deceased to the extent of 30% by

the Tribunal, the claimants have filed the present appeal under Section

173 of the Motor Vehicles Act, 1988.

7. Heard Ms.C.Sangamithirai, learned counsel appearing for the

appellants and Mr.N.Sampath, learned counsel appearing for the second

respondent.

Negligence

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

registered against the driver of the Tata Sumo car bearing Registration

Number TN-46-W-7555. Thiru. Raju (P.W.2), the eyewitness to the

occurrence had clearly spoken about the rash and negligent driving of the

driver of the Tata Sumo car. Nothing useful was suggested to P.W.2

during the course of cross examination to discredit or disbelieve his

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versions. The manner of accident also shows that the driver of the car was

rash and negligent in driving his vehicle. Therefore, the Tribunal was

wrong in fastening contributory negligence on the part of the deceased to

the extent of 30% on the ground that (i) there was a head-on collision

between the car and the two wheeler and (ii) the deceased was not

wearing helmet at the time of accident. Moreover, there is nothing on

record to show that the deceased also contributed to the accident.

Quantum

9. In the claim petition, it is contended that the deceased was

working as a supplier in a hotel earning a sum of Rs.17,000/- per month.

In the absence of satisfactory income proof, the Tribunal fixed the

notional monthly income of the deceased as Rs.6,500/-. The accident took

place in the year 2021 and the deceased was aged 20 years on the date of

accident. In the circumstances, 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

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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.

Calculation

Notional Income = Rs.16,000/-

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.88,000/- (44,000 x 2),

Rs.16,500/- and Rs.16,500/- for '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.25,40,200/- ( 24,19,200 + 88,000 +

16,500 + 16,500= 25,40,200) as shown in the following tabular column.






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                                       S.No.               Head             Amount granted
                                                                             by this court
                                  1.           Loss of dependency            Rs.24,19,200/-
                                  2.           Loss of consortium             Rs.88,000/-
                                               (Rs.44,000/- x 2)
                                  3.           Funeral expenses               Rs.16,500/-
                                  4.           Loss of Estate                 Rs.16,500/-
                                  Total                                      Rs.25,40,200/-

10. Thus, the compensation awarded by the Tribunal is enhanced

to Rs.25,40,200/- that would carry interest at the rate of 7.5% per annum.

11. In the result,

i. The Civil Miscellaneous Appeal is partly allowed. No costs.

ii. The contributory negligence fastened on the part of the deceased is

set aside.

iii. The compensation awarded by the Tribunal is enhanced to

Rs.25,40,200/-.

iv. The appellants are directed to pay the Court fee for the enhanced

compensation amount, if any, within a period of four weeks from

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the date of this order and the Registry is directed to draft the decree