Madras High Court
The Divisional Manager vs A.Lakshmi on 1 April, 2025
CMA.No.976 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :01.04.2025
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CMA No.976 of 2025 and
C.M.P.No.7767 of 2025
The Divisional Manager
The United India Insurance company Limited,
No.13-A SBI Complex,
Nethaji Road, Manjakuppam, Cuddalore 607 001 ... Appellant
Vs.
1. A.Lakshmi
2.A.Ananth
3.A.Asha
4.Minor A.Arthi
5.Minor A.Anushiya
(Minors 4 and 5 are represented by
1st petitioner)
K.Dhandapani(Died)
6. K.Babu ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, to set aside the award passed in MCOP No. 1020 of 2020
dated 10.01.2024 on the file of the Learned Motor Accidents Claims
Tribunal (Special District Court) Cuddalore.
For Appellant : Mr.J.Chandran
For respondents : M/s.Ramya V.Rao for R1 to R5
R6-Notice dispensed with
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CMA.No.976 of 2025
JUDGMENT
The Civil Miscellaneous Appeal is filed challenging the award
passed by the Motor Accident Claims Tribunal, Special District Court,
Cuddalore by the insurance company.
2. It was the case of the respondents 1 to 5/claimants 1 to 6 that
the husband of the first claimant, father of the claimants 2 to 5 and son
of the deceased 6th claimant namely Azhagesan died in a road accident
that had taken place on 10.07.2020. According to the claimants, the
deceased was driving his two-wheeler in Cuddalore to Vridhachalam
main road. When he came near V.Sathamangalam new bus stand, an
Ashok Leyland goods carrier belonged to the 6th respondent, insured
with the appellant came in a rash and negligent manner and dashed
against the two-wheeler. As a result of the accident, the deceased
sustained grievous injuries and died. Therefore, the claim petition was
filed seeking compensation of Rs.50,00,000/-
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3. The 6th respondent remained exparte before the Tribunal and
the claim petition was contested only by the appellant/ insurance
company, on the ground that the accident had occurred only due to the
rash and negligent driving of the deceased.
4. The Tribunal, based on the evidence of P.W.2 and the contents
of Ex.P1, FIR and Ex.P5, final report, came to the conclusion that the
accident had occurred due to the negligence on the part of the driver of
the vehicle insured with the appellant/ insurance company. The
compensation payable to the claimants was quantified at Rs.
29,88,000/-.Aggrieved by the same, the insurance company has come
before this court by way of this appeal.
5. The learned counsel for the appellant/Insurance Company
submitted that the deceased did not possess a valid driving license at
the time of accident. Therefore, the tribunal should have fixed
contributory negligence on his part. He further submitted that the
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notional income of Rs.18,000/- fixed by the tribunal is on higher side. It
is also stated by him that the amount awarded by the tribunal under
conventional damages is also on higher side.
6. The learned counsel for the respondents 1 to 5/ claimants
submitted that mere failure to produce the valid driving license is not a
ground to fix contributory negligence. The learned counsel also
submitted that the deceased had six dependents at the time of accident
including one son and three unmarried daughters. Therefore, the
tribunal was justified in fixing Rs.18,000/- per month as notional
income.
7. The Hon'ble Apex Court in the case of Sudhir Kumar Rana
Vs Surinder Singh and Others reported in (2008) 12 SCC 436
categorically held that mere failure to produce a valid driving license is
not a ground to fix contributory negligence on the part of the deceased
unless there is a positive evidence to show that he also contributed to
the accident. In the case on hand, there is no positive evidence to
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suggest that the deceased by his rash and negligence contributed to the
accident. Therefore, following the law laid down in Sudhir Kumar
Rana case cited supra, this Court holds that contributory negligence
cannot be fixed on the part of the deceased.
8. As far as the quantum of compensation is concerned, the
claimants in their petition had stated that the deceased was a contract
labourer employed in NLC India Limited and was earning a sum of Rs.
25,000/- per month. However, to prove the said plea, they have not
produced any documentary evidence. In these circumstances, the
tribunal fixed Rs.18,000/- as notional income for the deceased. Even if
there is no evidence to prove the avocation and income, this Court, by
taking into consideration the facts and circumstances of the case, can
fix a notional income.
9. It is submitted by the learned counsel for the claimants that the
deceased had a large family including three unmarried daughters and
one son. Therefore, according to him, the tribunal was justified in
fixing Rs.18,000/- as notional income.
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10. Having a large family or more dependents is not a factor
while fixing the notional income. In the absence of any evidence to
show the avocation and income, taking into consideration the date of
accident and the prevailing cost of living, the Court can fix a reasonable
amount as notional income. Therefore, taking into consideration the
facts and circumstances of the case, this Court is inclined to fix
Rs.16,500/- as notional income for the deceased. The tribunal fixed the
age of the deceased as 49 years based on Exhibit P2, Post Mortem
Report. Therefore, the claimants are entitled to 25% enhancement
towards future prospects. The applicable multiplier is 13. Since there
are six dependents, one-fourth of the amount has to be deducted
towards the personal expenses of the deceased. In that case, the loss of
dependency would be Rs.24,13,125/- which is calculated as follows:-
16,500 x 1.25 x 12 x 13 x 3/4 = Rs.24,13,125/-
11. The accident had occurred within three years from the date of
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pronouncement of judgment in Pranay Sethi case (31.10.2017).
Therefore, the first claimant is entitled to Rs.40,000/- towards loss of
consortium. The claimants 2 to 5, children of the deceased and the 6th
claimant/ father of the deceased are entitled to Rs.40,000/- each under
the heads loss of love and affection and loss of parental consortium.
Though the 6th claimant died pending original petition, the benefit of
his estate will go to his legal representatives namely the children of the
pre-deceased son/claimants 2 to 5. The benefit of the non-pecuniary
damage to the deceased 6th claimant will also go to the claimants 2 to
5. Therefore, the compensation under the head loss of love and
affection and loss of parental consortium is fixed as Rs.2,00,000/-
instead of Rs. 2,50,000/-The amount awarded by the tribunal under the
head funeral expenses is confirmed and the amount awarded under the
head transportation charges is set aside. The amount of Rs.25,000/-
awarded by the tribunal under the head loss of estate is reduced to
Rs.15,000/-. Accordingly, the total compensation payable to the
claimants is reduced to Rs.26,83,125/-.
12. In view of the discussions made earlier, the award passed by
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the Tribunal is modified as follows:-
Sl Description Amount Amount Award
. awarded awarded confirmed or
N by by this enhanced or
o Tribunal Court granted
(Rs) (Rs)
1. Loss of dependency 26,32,500/- 24,13,125/ Reduced
-
2. Loss of Estate 25,000/- 15,000/- Reduced
3. Funeral Expenses 15,000/- 15,000/- Confirmed
4. Loss of 50,000/- 40,000/- Reduced
Consortium(1st
claimant)
5 Loss of love and 2,50,000/- 2,00,000 Reduced
affection (claimants
2 to 5) and loss of
parental consortium
6 Transportation 15,000/- Nil Set aside
expenses
Total 34,12,452/- 26,83,125/- Reduced by
Rs.3,04,875/-
Less:20%contributory
negligence
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13. With the above modifications, the Civil Miscellaneous
Appeal is partly allowed and the compensation awarded by the Tribunal
at Rs.29,88,000/- is hereby reduced to Rs.26,83,125/-. The respondents
1 to 5/claimants are entitled to interest at the rate of 7.5% per annum
from the date of filing of the claim petition till the date of realization.
The appellant /Insurance company is directed to deposit the award
amount before the Tribunal along with interest and costs, less the
amount already deposited, if any, within a period of six weeks from the
date of receipt of copy of this Judgment.
14. As far as apportionment is concerned, the claimants 2 to
5/children of the deceased are entitled to Rs.3,00,000/- each and the 1st
claimant/wife of the deceased is entitled to Rs.14,83,125/-
15. The respondents 1 to 5/claimants are permitted to withdraw
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their share of compensation amount, along with interest and costs, less
the amount if any, already withdrawn, by making proper application
before the Tribunal subject to satisfying the Tribunal about attainment
of majority by minor claimants 4 and 5. Consequently, the connected
miscellaneous petition is closed. No costs.
01.04.2025
Index:Yes/No
Internet:Yes/No
nr
To
1. Motor Accidents Claims Tribunal
Special District Court, Cuddalore.
2. The Section Officer,
VR Section,
High Court, Madras.
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S.SOUNTHAR, J.
nr
CMA No.976 of 2025 and
01.04.2025
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