Madras High Court

Gowri vs N.Raju on 4 April, 2025

                                                                                      CMA.No.485 of 2025

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 04.04.2025

                                                          CORAM

                                   THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                                CMA.No.485 of 2025
                     1.Gowri
                     2.Deepa
                     3.Ashwini
                                                                                        ... Appellants
                                                               Vs.
                     1.N.Raju

                     2.The Divisional Manager,
                     United India Insurance Company Limited,
                     Gurgoan, Haryana – 122 001 and Branch at Royakottai Fly Over,
                     Near HDFC Bank, Krishnagiri.

                     3.Dinesh @ Dinesh Kumar

                                                                                      ... Respondents

                     Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
                     Act, to enhance the compensation amount and fix the entire liability on 2nd
                     respondent made in Order dated 13.02.2024, made in MCOP.NO.951 of
                     2020, on the file of the Motor Accident Claims Tribunal, Special District
                     Court, Krishnagiri by allowing this Civil Miscellaneous Appeal.




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                                                                                       CMA.No.485 of 2025

                                        For Appellants           :Ms.L.Manisha

                                        For Respondents :Mr.D.Venkatachalam for R2
                                                         Notice Dispensed with for R1 and R3
                                                         as they remained ex-parte before the
                                                         Tribunal

                                                    J U D G M E N T

This appeal has been filed by the claimants on the questions of

quantum as well as fixation of negligence on the part of the 3rd respondent.

2. It is the case of the claimant that son of the first claimant

and brother of the claimants 2 and 3 died in a road accident that had

occurred on 15.04.2019. According to them, the deceased was travelling

as a pillion rider in TVS-Star City two wheeler driven by his brother. It was

stated by the claimants that the driver of TVS-Star City two wheeler had

driven the vehicle in a rash and negligent manner and dashed against the

TVS-Suzuki motorcycle driven by the 3rd respondent. The first respondent

owner of the TVS-Star City and the third respondent/owner of TVS-Suzuki

remained ex-parte before the Tribunal and the claim petition was resisted

only by second respondent insurer of TVS-Star city motor bike.

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3. It was the case of the second respondent before the Tribunal that

the accident had occurred only due to the negligence on the part of TVS-

Suzuki motorcycle. Therefore, it was prayed that the insurer of the

TVS-Star city motorcycle [R2], needed to be exonerated.

4. The Tribunal based on evidence available on record came to

the conclusion that the accident had occurred only due the rash and

negligent driving of the TVS-Suzuki motorcycle by the 3rd respondent.

Therefore, the 3rd respondent was directed to pay compensation of

Rs.20,69,000/-. Aggrieved by fixation of entire negligence on the part of

the 3rd respondent and also quantum of compensation, the claimants have

come before this Court.

5. The learned counsel appearing for the appellants vehemently

contended that eye witness-Pw2 clearly deposed about the negligence on the

part of the first respondent and the same was not properly considered by the

Tribunal. Therefore, the Tribunal committed an error in fixation of entire

negligence on the part of the 3rd respondent before the Tribunal, owner of

TVS Suzuki motor cycle. The learned counsel also submitted that the

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Tribunal committed an error in fixing Rs.10,000/- as notional income of the

deceased.

6. The learned counsel appearing for the second

respondent/Insurance Company would submit that the first respondent,

brother of the deceased clearly deposed that entire negligence was on the 3rd

respondent and based on his evidence and FIR, the Tribunal rightly fixed

entire negligence on the part of the 3rd respondent.

7. It is not in dispute that the deceased travelled in a TVS-Star

City two wheeler as pillion rider. The said vehicle was driven by his own

brother arrayed as first respondent. Though the first respondent remained

ex-parte before the Tribunal, he was examined on summons as RW.3 by the

second respondent. In his Chief examination, he deposed that when he was

driving TVS-Star City vehicle from Maharajakadai to Varattanapalli Road,

the TVS-Suzuki driven by the 3rd respondent came in the opposite direction

and both the vehicle dashed against each other. In cross examination

suggestion was made by the counsel for the appellant, as if, the accident had

occurred only due to his negligence, the said suggestion was categorically

denied by him.

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8. Therefore, it is clear, the son of the first claimant and the

brother of the deceased deposed before the Tribunal that there was no

negligence on his part. Absolutely, there is nothing on the part of the RW.3

to depose against the interest of his own mother who was arrayed as first

claimant. It is also seen from the records, after the accident, the first

respondent gave the police complaint against the 3rd respondent and based

on his complaint, the FIR was registered against the 3rd respondent and the

same was marked as Ex.P1.

9. In order to fix the negligence on the part of the 3 rd

respondent, the claimant examined one eye witness as PW.2. There is no

explanation why he had not given any police complaint immediately after

the accident. He appears to be a chance witness. When brother of the

deceased and son of the 1st claimant appeared as RW.3 and denied

suggestion that he was negligent while driving the vehicle, this Court is

unable to accept the evidence of PW.2 to fix negligent on the part of the

first respondent. Based on the evidence of RW.3, who was a driver of the

two wheeler in which the deceased travelled at the time of the accident and

the contents of FIR, the Tribunal came to the conclusion that the entire

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negligence was on the part of the 3rd respondent. The said finding is based

on proper appreciation of evidence available on record and hence it requires

no interference.

10. As far as quantum of compensation is concerned, it was

stated by the claimant in the claim petition that the deceased was a BSC

Chemistry graduate working in a medical shop. The income of the deceased

was stated as Rs.25,000/- per month in the claim petition. However, the

claimants have not produced any documents to prove his income. In the

case on hand, the accident had occurred in the year 2019, therefore, taking

into consideration, the date of accident and the cost of living, this Court is

inclined to fix Rs.16,500/- as the notional income of the deceased. The age

of the deceased was fixed as 26 by the Tribunal based on Ex.P5-

Consolidated Grade Card and Ex.P6-Transfer Certificate. Therefore, the

claimants are entitled 40% enhancement towards future prospects, the

applicable multiplier is 17. Since the deceased died as a bachelor 50% shall

be deducted towards the personal expenses. Accordingly, the loss of

dependency is fixed at Rs.23,56,200/- (16,500x1.4x12x17x1/2).

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11. The Tribunal granted 10% enhancement towards the

conventional damages like loss of estate, funeral expenses, loss of

consortium. In this case, the accident had occurred within three years from

the date of delivery of judgment in Pranay Sethi case which was on

31.10.2017. Therefore, the claimants are not entitled to 10% enhancement.

Accordingly, the claimants 1 to 3 are entitled to Rs.40,000/- (each) towards

loss of parental consortium and loss of love and affection. In addition to the

said amount, they are entitled to Rs.15,000/- (each) towards loss of estate

and funeral expenses.

12. In view of the discussions made earlier, the award passed

by the Tribunal is modified as follows:

                            Sl.          Description                 Compensation            Compensation
                          No.                                        awarded by the         awarded by this
                                                                       Tribunal                 Court
                            1. Loss of dependency                 Rs.19,04,000/-            Rs.23,56,200/-
                            2. Loss of income                     Rs.16,500/-               Rs.15,000/-
                            3. Funeral expenses                   Rs.16,500/-               Rs.15,000/-
                                  Loss of parental consortium
                            4.                                Rs.1,32,000/-                 Rs.1,20,000/-
                                  and love and affection
                                         Total                    Rs.20,69,000/-            Rs.25,06,200/-







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13. In view of the discussions made earlier, the compensation

awarded by the Tribunal is enhanced to Rs.25,06,200/-. In the above said

amount, the first claimant who is mother of the deceased is entitled to 50% and the

claimants 2 and 3 are entitled to 25%(each).

14. The claimants are entitled to the enhanced award amount

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

petition to the date of realisation. On deposit of award amount, the

appellants/claimants are permitted to withdraw the said amount by filing

appropriate application before the Tribunal. It is made clear, the

appellants/claimants are not entitled to claim interest for the delay period

163 days as per the order passed in CMP.No.30115 of 2024, dated

24.01.2025. The appellants are directed to pay an additional court fee for