Madras High Court
Mani vs Vadivel on 18 September, 2024
Author: R.Hemalatha
Bench: R. Hemalatha
CMA.No.1485 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.09.2024
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.M.A.No.1485 of 2024
1. Mani
2. Karthi
3. Minor Kasthuri
(Minor represented by his mother/Guardian Mani)
4. Eswari ... Appellants
Third appellant is declared as major and her mother/Guardian,
the first appellant Mani, is discharged from guardianship of the
third appellant vide court order dated 21.03.2024 made in CMP
No.5713 & 5715 of 2024 in C.M.A. Sr. No.11581/2024.
vs.
1. Vadivel
Palanivel (died)
2. The Divisional Manager,
United India Insurance Company Limited,
Mettur Road, Muthaiya Complex, Erode.
3. Shanmugam ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Award dated 22.04.2022 in
M.C.O.P.269/2018 on the file of the Motor Accident Claims Tribunal, IV
Additional District & Sessions Court, Bhavani at Erode.
1/11
https://www.mhc.tn.gov.in/judis
CMA.No.1485 of 2024
For Appellants : Mr. C. Ramaraj
R1 & R3 : Notice dispensed with.
For R2 : Mr. D. Venkatachalam
JUDGMENT
The appellants are the claimants in M.C.O.P.269/2018 on the
file of the Motor Accident Claims Tribunal and they filed the claim
petition under Section 166 of the Motor Vehicles Act, 1988 seeking
compensation of Rs.20,00,000/- for the death of one Azhvarigounder
(husband of first claimant and father of claimants 2 and 3 and son of
claimant 4) in a road accident that occurred on 02.03.2018.
2. The brief case of the appellants / claimants is as follows :
2.1. On 02.03.2018 Azhvarigounder (since deceased) was
riding his two wheeler bearing Registration Number TN-33-C-6752 on
Bhavani-Mettur Road. When he was nearing Chithar village, at about
06.20 a.m., a bus bearing Registration Number TN-45-AF-6777,
belonging to the second respondent (since deceased), hit the two wheeler
https://www.mhc.tn.gov.in/judis
driven by Azhvarigounder, causing his instantaneous death.
2.2. According to the claimants, the rash and negligent driving
of the driver of the bus bearing Registration Number TN-45-AF-6777,
was the cause of the accident and that since the said bus was insured with
the third respondent (second respondent herein), the United India
Insurance Company Limited, the owner and the insurer are jointly and
severally liable to pay compensation to them. During the pendency of
the trial the second respondent, the owner of the bus, died and his legal
heir was impleaded as fourth respondent.
3. In the Tribunal the driver and the owner of the bus
remained absent and were set ex parte. The third respondent Insurance
Company resisted the claim petition on all the grounds available to the
insurer under Section 170 of the Motor Vehicles Act.
4. The Tribunal, after analysing the evidence on record,
fastened negligence on the part of the driver of the offending bus bearing
Registration Number TN-45-AF-6777 and on the deceased in the ratio
https://www.mhc.tn.gov.in/judis
60:40. Since the second respondent, the owner of the bus did not have a
valid permit to ply his bus in the route, where the accident occurred, the
Tribunal directed the third respondent Insurance Company to pay
compensation of Rs.7,11,353/- to the claimants together with interest at
the rate of 7.5% per annum from the date of petition till the date of
realisation, in the first instance, and then recover the same from the fourth
respondent, the owner of the bus, under the same cause of action (pay
and recovery), vide its orders dated 22.04.2022.
5. 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.
6. Heard Mr. C. Ramaraj, learned counsel appearing for the
appellants and Mr. D. Venkatachalam, learned counsel appearing for the
second respondent Insurance Company.
7. Mr. C. Ramaraj, learned counsel appearing for the appellants
https://www.mhc.tn.gov.in/judis
contended that the Tribunal had fastened negligence on the part of the
deceased to an extent of 40% even though the driver of the bus did not
have a valid permit to ply his bus in the said route. He also contended that
the Tribunal has not awarded just compensation.
8. Per contra, Mr. D. Venkatachalam, learned counsel
appearing for the second respondent/Insurance Company contended that
the manner of the accident would clearly go to show that the rider of the
two wheeler was also rash and negligent in driving his vehicle and
therefore, the order of the Tribunal fastening negligence on the part of the
rider of the two wheeler to an extent of 40% is perfectly in order. He also
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 in the present
appeal.
9. A perusal of the rough sketch shows that the bus was
proceeding towards southern direction from north on Bhavani-Mettur
Road and the two wheeler was proceeding towards eastern direction from
https://www.mhc.tn.gov.in/judis
west. The scene of occurrence is on the eastern side of the road which
would go to show that both the vehicles were at fault. Since the bus is a
Heavy Motor Vehicle, the driver of the bus should have been more careful
while driving his vehicle. In the circumstances, the negligence on the
part of the deceased and on the driver of the bus is fixed in the ratio 20:80.
9.1. According to the claimants, the deceased was working as
a loadman earning a sum of Rs.20,000/- per month. In the absence of
satisfactory income proof, the Tribunal fixed the notional monthly income
of the deceased as Rs.10,000/-. The accident took place in the year 2018
and the deceased was aged 55 years on the date of accident. In the
circumstances, this Court is of the view that fixing the notional income as
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, 10% 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 11 as per the decision
rendered in Sarla Verma and others vs. Delhi Transport Corporation
https://www.mhc.tn.gov.in/judis
and another reported in (2009) 6 SCC 121.
Calculation
Notional Income = Rs.13,000/-
10% Future Prospects = Rs.14,300/-
After 1/4 deduction = Rs.10,725/-
Loss of dependency
= Rs.10,725/- x 12 x 11
= Rs.14,15,700/-
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).
9.2 The enhanced amount under the different heads are detailed
hereunder:
S.No. Head Amount granted
by this court (Rs.)
1. Loss of dependency 14,15,700/-
2. Loss of consortium 1,60,000/-
https://www.mhc.tn.gov.in/judis
S.No. Head Amount granted
by this court (Rs.)
(Rs.40,000/- x 4)
3. Funeral expenses 15,000/-
4. Loss of Estate 15,000/-
Total 16,05,700/-
Less 20% contributory 3,21,140/-
negligence
Compensation amount 12,84,560/-
This amount shall carry interest at the rate of 7.5% per annum from the
date of claim petition till the date of deposit.
10. 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 40% is reduced to 20%.
iii. The compensation awarded by the Tribunal is enhanced from
Rs.7,11,353/- to Rs.12,84,560/-.
iv. The appellants / claimants are directed to pay court fee for the
https://www.mhc.tn.gov.in/judis
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 United India Insurance Company
Limited, Erode, is directed to deposit the enhanced compensation
amount of Rs.12,84,560/- (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, in the first instance, to the
credit of MCOP.269 of 2018 on the file of the Motor Accident
Claims Tribunal, IV Additional District & Sessions Court, Bhavani,
within a period of four weeks from the date of receipt of a copy of
this order/uploading of this order and then recover the same from
the third respondent, the owner of the bus, under the same cause of
action. The ratio of apportionment made by the Tribunal shall be
kept intact.
vi. On such deposit being made, the claimants 1 to 4 are at liberty to
withdraw the same as per the orders passed by the Tribunal after
https://www.mhc.tn.gov.in/judis
following due process of law.
vii.The appellants/claimants are not entitled to claim any interest for
the period of delay of 507 days in filing this appeal, as per the
orders of this Court dated 06.06.2024 in C.M.P. No.7889 of 2024.
18.09.2024
Index : Yes/No
Speaking/Non-speaking order
bga
To
1. Motor Accident Claims Tribunal,
IV Additional District & Sessions Judge, Bhavani
2. The Divisional Manager,
United India Insurance Company Limited,
Mettur Road, Muthaiya Complex, Erode.
3.The Section Officer, VR Section, Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
R.HEMALATHA, J.
bga
18.09.2024
https://www.mhc.tn.gov.in/judis
