Madras High Court
Kasthuri vs Thanjiyappan on 3 September, 2024
Author: R.Hemalatha
Bench: R. Hemalatha
CMA.No.1199 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.09.2024
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.M.A.No.1199 of 2024
1. Kasthuri
2. Venkatesan ... Appellants
vs.
1. Thanjiyappan
2. Chola MS General Insurance Company Limited,
2nd Floor, Shaw Wallace Building,
No.154, Thambu Chetti Street,
Parrys Corner, Chennai 600 001 ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Award dated 24.04.2023 in
M.C.O.P.464 of 2019 on the file of the I Additional District and Sessions
Court, Motor Accidents Claims Tribunal, Vellore.
For Appellants : Mr. R. Nalliyappan
R1 : Notice dispensed with.
For R2 : Mrs. R. Sreevidhya
1/10
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CMA.No.1199 of 2024
JUDGMENT
The appellants are the claimants in M.C.O.P.464 of 2019 on the
file of the I Additional District and Sessions Court, Motor Accidents
Claims Tribunal, Vellore. They filed the claim petition under Section 166
of the Motor Vehicles Act, 1988 seeking compensation of Rs.30,00,000/-
for the death of their son Umapathi in a road accident that took place on
01.05.2019.
2. The brief case of the appellants / claimants is as follows :
2.1. On 01.05.2019 Umapathi (deceased) was riding his two
wheeler with one Ranganathan as a pillion rider on Kasikuttai-Senur
Road. At about 02.00 p.m., a Ashok Leyland Dost goods carriage vehicle
bearing Registration Number TN 23 CJ 2405, belonging to the first
respondent, hit the two wheeler driven by Umapathi, as a result of which
he sustained injuries all over his body and died on the spot.
3. According to the claimants, the rash and negligent driving of
the driver of the Ashok Leyland Dost goods carriage vehicle bearing
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Registration Number TN 23 CJ 2405, was the cause of the accident and
that since the said vehicle was insured with the second respondent, the
Chola MS General Insurance Company Limited, the owner and the
insurer are jointly and severally liable to pay compensation to them.
4. In the Tribunal the first respondent 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 after analysing the evidence on record fixed
10% contributory negligence on the part of the deceased and directed
the second respondent to pay compensation of Rs.17,46,400/- (90% on
the total compensation of Rs.19,40,400/-) 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 held that the liability
of the respondents are joint and several.
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6. Aggrieved over the quantum of compensation awarded by the
Tribunal, the claimants have filed the present appeal under Section 173 of
the Motor Vehicles Act, 1988.
7. Heard Mr. R. Nalliyappan, learned counsel appearing for the
appellants and Mrs. R. Sreevidhya, learned counsel for the second
respondent.
8. Mr. R. Nalliyappan, learned counsel appearing for the
appellants contended that the Tribunal though fixed negligence on the
part of the driver of the Ashok Leyland Dost goods carriage vehicle
bearing Registration Number TN 23 CJ 2405, had wrongly deducted 10%
towards contributory negligence on the part of the rider of the two wheeler
on the ground that he was not wearing a helmet at the time of accident.
He further contended that Umapathi (deceased) had passed Diploma
Course in Mechanical Engineering and was working in Honda Company,
Sriperumbudur, as a HDT Trainee earning a sum of Rs.13,000/- per
month. However, the Tribunal had fixed the notional monthly income of
the deceased only as Rs.12,000/-. He therefore, prayed for enhancement
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of the monthly income of the deceased.
9. Per contra, Mrs. R. Sreevidhya, learned counsel appearing
for the second respondent/Insurance Company contended that the Award
passed by the Tribunal is based on the well laid down principles of law
which were in vogue at the time of passing of the order and therefore, the
same need not be disturbed.
10. It is seen from a copy of the FIR (Ex.P1) that the driver of
the Ashok Leyland Dost goods carriage vehicle bearing Registration
Number TN 23 CJ 2405 was the wrong doer and the claimants have also
examined one Ranganathan (P.W.2), who is an eye witness to the
occurrence. When the Tribunal had come to the conclusion that the
driver of the Ashok Leyland Dost goods carriage vehicle bearing
Registration Number TN 23 CJ 2405 was rash and negligent in driving his
vehicle, it should not have fixed contributory negligence on the part of the
deceased on the ground that he was not wearing a helmet. In the
circumstances, the contributory negligence fixed on the part of the
deceased is hereby set aside.
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10.1. According to the claimants, the deceased had completed
Diploma Course in Mechanical Engineering and was working in Honda
Company, Sriperumbudur, as a HDT Trainee earning a sum of
Rs.13,000/- per month. Since the claimants did not adduce any
documentary evidence to substantiate the same, the Tribunal fixed the
notional monthly income of the deceased as Rs.12,000/-. The accident
took place in the year 2019 and the age of the deceased was 22 years at
the time of accident. In the circumstances, this Court is of the view that
fixing the notional income at Rs.13,000/- per month 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. Since the
deceased died as a bachelor, 1/2 should be deducted towards his personal
expenses. The deceased was aged 22 years on the date of the accident and
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.13,000/-
40% Future Prospects = Rs.18,200/-
After 1/2 deduction = Rs.9,100/-
Loss of dependency
= Rs.9,100/- x 12 x 18
= Rs.19,65,600/-
In addition to that the claimants are entitled to Rs.80,000/- (40,000 x 2),
Rs.15,000/- and Rs.15,000/- 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).
10.2. The enhanced amount under the different heads are
detailed hereunder:
S.No. Head Amount granted
by this court (Rs.)
1. Loss of dependency 19,65,600/-
2. Loss of consortium 80,000/-
(Rs.40,000/- x 2)
3. Funeral expenses 15,000/-
4. Loss of Estate 15,000/-
Total 20,75,600/-
This amount shall carry interest at the rate of 7.5% per annum from the
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date of claim petition till the date of deposit.
11. In the result,
i. The Civil Miscellaneous Appeal is partly allowed. No costs.
ii. The orders passed by the Tribunal fixing contributory negligence on
the part of the deceased to the extent of 10% is set aside.
iii. The compensation awarded by the Tribunal is enhanced from
Rs.17,46,400/- to Rs.20,75,600/-.
iv. The appellants / claimants are directed to pay court fee for the
enhanced compensation amount, if any, within a period of four
weeks from the date of this order and the Registry is directed to
draft the decree only after receipt of the Court fee.
v. The second respondent, the Chola MS General Insurance Company
Limited, Chennai, is directed to deposit the enhanced compensation
amount i.e., Rs.20,75,600/- (less the amount already deposited)
together with interest at the rate of 7.5% per annum from the date
of claim petition till the date of deposit to the credit of
MCOP.No.464 of 2019 on the file of the I Additional District and
Sessions Court, Motor Accidents Claims Tribunal, Vellore, within a
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period of four weeks from the date of receipt of a copy of this order.
The ratio of apportionment made by the Tribunal shall be kept
intact.
vi. On such deposit being made, the appellants are at liberty to
withdraw their share as per the apportionment made by the
Tribunal after filing a proper petition for withdrawal.
vii.The appellants/claimants are not entitled to claim any interest for
the period of delay of 228 days in filing this appeal, as per the
orders of this Court dated 25.04.2024 in C.M.P. No.7134 of 2024.
03.09.2024
Index : Yes/No
Speaking/Non-speaking order
bga
To
1. The I Additional District and Sessions Judge, Motor Accidents Claims
Tribunal, Vellore
2. Chola MS General Insurance Company Limited
2nd Floor, Shaw Wallace Building, No.154, Thambu Chetti Street,
Parrys Corner, Chennai 600 001
3.The Section Officer, VR Section, Madras High Court, Chennai.
R.HEMALATHA, J.
https://www.mhc.tn.gov.in/judis
bga
03.09.2024
https://www.mhc.tn.gov.in/judis
