Madras High Court

Rajendiran vs Ilayaraja on 20 September, 2024

Author: R.Hemalatha

Bench: R. Hemalatha

                                                                                    CMA.No.1324 of 2024


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 20.09.2024

                                                         CORAM:

                                  THE HONOURABLE MRS.JUSTICE R. HEMALATHA

                                                 C.M.A.No.1324 of 2024

                     1. Rajendiran

                     2. Mariyayi                                               ... Appellants
                                                            vs.
                     1. Ilayaraja

                     2. The Manager,
                     Tata AIG General Insurance Company Limited,
                     1st Floor, Rajendra Building,
                     Duraiswamy Pillai Street,
                     West Tambaram, Chennai – 600 045.                        ... Respondents


                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988 against the Award dated 04.12.2023 in
                     M.C.O.P. 88 of 2021 on the file of the Motor Accident Claims Tribunal,
                     Principal District Court, Perambalur.


                                    For Appellants     : Mr.Ma.Pa.Thangavel
                                                        for Mr.M.Lokesh
                                    For R2             : Mr.J.Michael Visuvasam
                                    R1                 : No appearance


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                                                                                      CMA.No.1324 of 2024




                                                   JUDGMENT

The appellants are the claimants in M.C.O.P. 88 of 2021 on the

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

claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking

compensation of Rs.80,00,000/- for the death of their son Raja in a road

accident that occurred on 25.01.2021.

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

On 25.01.2021, Raja (since deceased) was riding a Hero

Passion Pro motorcycle bearing Registration Number TN-46-R-6711 on

Mandapam – Nannai Road and at about 6.10 p.m. a speeding Hero

Splender motorcycle bearing Registration Number TN-46-X-9840

belonging to the first respondent came on the opposite direction and hit

the two wheeler driven by Raja (deceased) resulting in his instantaneous

death.

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

the rider of the motorcycle bearing Registration Number TN-46-X-9840

was the cause of the accident and that since the said vehicle was insured

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with the second respondent, the Tata AIG General 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 motorcycle 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,

fastened negligence on the part of the offending motorcycle bearing

Registration Number TN-46-X-9840 and the deceased in the ratio 50:50

and directed the second respondent to pay compensation of 11,17,934/-

(50% of the total compensation of Rs.22,35,868/-) 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 and the

contributory negligence fastened on the part of the deceased by the

Tribunal, the claimants have filed the present appeal under Section 173 of

the Motor Vehicles Act, 1988.

7. Heard Mr.Ma.Pa.Thangavel, learned counsel appearing for

the appellants and Mr.J.Michael Visuvasam, learned counsel appearing for

the second respondent.

8. Mr.Ma.Pa.Thangavel, learned counsel appearing for the

appellants contended that the Tribunal relying on the rough sketch

(Ex.X2) had come to a conclusion that the deceased Raja also contributed

to the accident to the extent of 50%. He relied on the decision of the

Hon'ble Supreme Court in Jiju Kuruvila and Others vs Kunjujamma

Mohan and Others reported in 2013(2) TN MAC 44 (SC) and contended

that mere position of the vehicles after accident, as shown in the rough

sketch, cannot give a substantial proof as to the rash and negligent driving

on the part of one or the other. It is also his contention that the Tribunal

has not awarded just compensation to the claimants.

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9. Per contra Mr.J.Michael Visuvasam, learned counsel

appearing for the second respondent contended that the Tribunal after

analysing the evidence on record had rightly fixed negligence on the part

of the riders of both the vehicles in the ratio 50:50 and also awarded just

compensation to the claimants. Therefore, prayed for dismissal of the

present appeal.

10.Negligence :

The FIR (Ex.P1) was registered against the rider of the first

respondent's vehicle bearing Registration Number TN-46-X-9840. In the

complaint, it is stated that Raja (deceased) was travelling northern towards

south on the left hand side of the road. Thiru.Subramanian (P.W.2), the

eyewitness to the occurrence, had deposed that the rider of the first

respondent's vehicle was rash and negligent in driving his vehicle and that

the accident took place on the left hand side of the road. Nothing useful

was suggested to P.W.2 during the course of cross examination to

discredit or disbelieve his versions. In the decision in Jiju Kuruvila and

Others vs Kunjujamma Mohan and Others (cited supra) it has been held

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thus :

“24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.” When the eyewitness account is clear as to the manner of accident, the

Tribunal was wrong in fixing 50% contributory negligence on the part of

the deceased. In the circumstances, the negligence is fixed on the part of

the rider of the first respondent's vehicle.

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11.Quantum :

According to the claimants, their son Raja was working as a

loadman in a private concern in Dubai earning a sum of Rs.35,000/- per

month. In the absence of satisfactory proof, the Tribunal fixed the

notional monthly income of the deceased as Rs.15,167/- based on the Cost

of Inflation Index for the year 2020 – 2021. The accident took place in the

year 2021 and the deceased was aged 30 years. He died as a bachelor.

According to the claimants, they were depending on the income of their

son Raja. In the circumstances, this Court is of the opinion that fixing

notional monthly income of the deceased at 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 17 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 Monthly 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 17

= Rs.22,84,800/-

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.24,05,800/- ( 22,84,800 + 88,000 +

16,500 + 16,500= 24,05,800) as shown in the following tabular column.

                                       S.No.               Head                Amount granted
                                                                                by this court
                                  1.           Loss of dependency              Rs.22,84,800/-
                                  2.           Loss of consortium                Rs.88,000/-
                                               (Rs.40,000/- x 2)
                                  3.           Funeral expenses                  Rs.16,500/-
                                  4.           Loss of Estate                    Rs.16,500/-



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                                     S.No.                 Head               Amount granted
                                                                               by this court
                                  Total                                        Rs.24,05,800/-