Madras High Court

Manimegalai vs Jayagopal on 11 September, 2024

Author: R.Hemalatha

Bench: R. Hemalatha

                                                                                          CMA.No.880 of 2024


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 11.09.2024

                                                          CORAM:

                                  THE HONOURABLE MRS.JUSTICE R. HEMALATHA

                                                     C.M.A.No.880 of 2024

                     1. Manimegalai
                     2. Selvakani
                     3. Minor Senthamilselvi
                     4. Minor Tarunavel                                             ... Appellants
                                                               vs.
                     1. Jayagopal

                     2. The Divisional Manager
                        The Oriental Insurance company Limited,
                         No.4, Bharathidasan Road,
                        2nd Floor, Cantonment, Trichy 1                              ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against Award dated 05.09.2023 in
                     M.C.O.P.445/2019 on the file of the Motor Accident Claims Tribunal,
                     Principal District Court, Perambalur.


                                    For Appellants       : Mrs. C. Sangamithirai
                                                          for M/s. C. Vidhusan
                                    R1                   : Notice dispensed with.
                                    For R2               : Mr. N. Sampath



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                                                                                      CMA.No.880 of 2024




                                                    JUDGMENT

The appellants are the claimants in M.C.O.P.445/2019 on the

file of the Motor Accident Claims Tribunal, Principal District Court,

Perambalur, and they filed the claim petition under Section 166 of the

Motor Vehicles Act, 1988 seeking compensation of Rs.60,00,000/- for the

death of one Kathirvel (husband of the first claimant and father of the

claimants 2 to 4) in a road accident that occurred on 07.05.2019.

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

2.1. On 07.05.2019 Kathirvel (since deceased) was riding his

TVS Star City two wheeler bearing Registration Number TN-54-Y-0607

on Trichy-Chennai National Highway. When he was nearing Irur

Junction, at about 1.30 p.m., a bus bearing Registration Number TN-45-

BF-8985, belonging to the first respondent, that was going ahead of the

two wheeler suddenly applied brake as a result of which Kathirvel hit the

bus from behind and died on the spot.

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

the driver of the bus bearing Registration Number TN-45-BF-8985, was

the cause of the accident and that since the said bus 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 first respondent, the owner of the bus

remained absent and was set ex parte. 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 offending bus bearing Registration

Number TN-45-BF-8985 and the deceased in the ratio 50:50 and

directed the second respondent to pay compensation of 11,19,876/- (50%

of the total compensation of Rs.22,39,751/-) to the appellants/claimants

together with interest at the rate of 7.5% per annum from the date of the

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petition till the date of realisation. The Tribunal also held that the liability

of the respondents are joint and several.

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 Mrs.C. Sangamithirai, learned counsel appearing for

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

respondent Insurance Company.

8. Mrs.C. Sangamithirai, learned counsel appearing for the

appellants contended that the Tribunal had fastened negligence on the part

of the deceased to an extent of 50% even though the driver of the bus

drove in a rash and negligent manner and suddenly applied brake on the

middle of the road. She also contended that the Tribunal had not awarded

just compensation to the claimants. She therefore prayed for enhancement

of compensation.

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9. Per contra, Mr.N. Sampath, 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. He also contended

that the deceased drove his motorcycle with more than one person on

the pillion and also did not keep a minimum distance between his vehicle

and the bus which was going ahead of him. According to him, the victim

also did not have a valid driving license and in these circumstances,

deducting 50% towards contributory negligence on the part of the victim

by the Tribunal is perfectly in order.

10. The accident, in the instant case, took place on Trichy-

Chennai National highways. An FIR (ExP1) was registered against the

driver of the bus bearing Registration Number TN-45-BF-8985 belonging

to the first respondent. The Tribunal after considering the manner of

accident fastened negligence on the part of the driver of the bus and the

rider of the two wheeler (deceased) in the ratio 50:50. However, it is to be

pointed out that as per the FIR, the driver of the bus was responsible for

the accident. At the same time, the rider of the two wheeler should have

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kept a minimum distance between his vehicle and the vehicles that are

going ahead of him. A perusal of the FIR shows that the driver of the bus

suddenly applied brake on the middle of the road as a result of which the

two wheeler hit the bus. The damage is also on the rear portion of the bus

as per the Motor Vehicle Inspector's reports (Ex.P2 and Ex.P3). In the

circumstances, fastening negligence in the ratio 50: 50 on the part of the

driver of the bus and the deceased by the Tribunal cannot be justified.

The driver of the bus has also not been examined as a witness. There is

nothing on record to show that the driver of the bus was going in a

moderate speed. In the circumstances, the negligence on the part of the

deceased and the driver of the bus is fixed in the ratio 20:80.

10.1. According to the claimants, the deceased was aged 48

years then and was working as a driver for NTC Logistics India Private

Limited, Chennai, earning a sum of Rs.35,000/- per month. They filed the

salary certificate issued by the employer for the period from August 2015

to April 2019. However, the person who issued the salary certificate has

not been examined by the claimants. In the absence of satisfactory income

proof, the Tribunal fixed the notional monthly income of the deceased as

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Rs.14,562.01/- based on the cost inflation index for the year 2019-2020.

The accident took place in the year 2019 and the deceased was aged 48

years on the date of accident. In the circumstances, this Court is of the

view that fixing the notional income as Rs.15,000/- 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, 25% is added towards future prospects of the

deceased. Since the deceased had four dependents, 1/4 is deducted

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

instant case is 13 as per the decision rendered in Sarla Verma and others

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

Calculation

Notional Income = Rs.15,000/-

25% Future Prospects = Rs.18,750/-

After 1/4 deduction = Rs.14,063/-

Loss of dependency

= Rs.14,063/- x 12 x 13

= Rs.21,93,828/-

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In addition to that the claimants are entitled to Rs.1,60,000/- (40,000 x 4),

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                     21,93,828/-
                                  2.           Loss of consortium                      1,60,000/-
                                               (Rs.40,000/- x 4)
                                  3.           Funeral expenses                          15,000/-
                                  4.           Loss of Estate                            15,000/-
                                               Total                                  23,83,828/-
                                               Less 20%         contributory           4,76,766/-
                                               negligence
                                               Compensation amount                    19,07,062/-

This amount shall carry interest at the rate of 7.5% per annum from the

date of claim petition till the date of deposit.

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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 an extent of 50% is reduced to 20%.

iii. The compensation awarded by the Tribunal is enhanced from

Rs.11,19,876/- to Rs.19,07,062/-.

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 Oriental Insurance Company Limited,

Trichy, is directed to deposit the enhanced compensation amount of

Rs.19,07,062/- (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.445 of 2019

on the file of the Motor Accident Claims Tribunal, Principal District

Court, Perambalur, within a period of four weeks from the date of

receipt of a copy of this order/uploading of this order.

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vi. The enhanced compensation amount of Rs.19,07,062/, is

apportioned to the claimants as below:

Manimegalai (first claimant) Rs.7,07,062/-

with costs and interest Selvakani (second claimant) Rs.4,00,000/- Minor Senthamilselvi (third Rs.4,00,000/-

                                      claimant)
                                      Minor     Tarunavel       (fourth           Rs.4,00,000/-
                                      claimant)

vii. On such deposit being made, the appellants 1 and 2 are at liberty to

withdraw their share as per the apportionment made by this Court,

with costs and interest, after filing a proper petition for withdrawal.

Since the appellants 3 and 4 are minors, their share, shall be

deposited in a fixed deposit in any one of the Nationalised bank

until they attain majority.