Madras High Court

Punitha vs Sujatha on 4 February, 2025

CMA.No.3343 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated :04.02.2025

CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR

CMA No.3343 of 2021
1. Punitha.
2. Minor Harikishore
3. Minor Karpakam
4.Indhirani
5. Selvaraj
6. Jayammal
Minor Appellants represented by next friend
and mother Punitha, the 1st appellant. ... Appellants

Vs.
1. Sujatha
2. Bharati Axa General Insurance Company Limited
No.162, Metro Plaza 2nd floor, Opposite Spencer Plaza
Anna Salai, Mount road, Chennai-2 ... Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988, to allow the present appeal award enhanced
compensation in judgment and decree dated 14.10.2019 in MCOP
No.597/2015 on the file of the Motor Accidents Claims Tribunal
(Additional District Judge, FAC), Namakkal as prayed for in this CMA
with cost.
For appellant : Ms.D.Jeevitha
for R.Nalliyappan

Page 1 of 9
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CMA.No.3343 of 2021

For Respondents : M/s.B.Sivakollappan
R1- served-No appearance

JUDGMENT

Aggrieved by the quantum of compensation, the claimants have

come before this Court by way of this appeal.

2. The wife, two minor children and parents of the deceased

filed the original claim petition. Pending claim petition, the parents of

the deceased, who are arrayed as claimants 4 and 5 passed away and

hence, their legal representatives were brought on record as claimants 6

to 8,

3. According to the claimants, on 18.04.2015 at about 9.30 a.m,

when the deceased attempted to cross the Sellappampatti to

Bommaikuttaimedu National Highway-7, while riding his two-wheeler,

the car owned by the first respondent came in the opposite direction in

a rash and negligent manner and hit the two-wheeler of the deceased.

As a result of which, the rider of the two-wheeler died. It is the further

case of the claimants that the deceased was aged about 40 years and he

was running a saloon shop and earning a sum of Rs.15,000/- per

month.

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4. The second respondent filed a counter-affidavit and resisted

the claim on the ground of negligence and also other aspects. It is the

specific case of the second respondent that the deceased was solely

responsible for the accident and hence, there was no negligence on the

part of the driver of the first respondent vehicle. Accordingly, the

second respondent prayed for dismissal of the claim petition.

5. Before the Tribunal, the wife of the deceased/ claimant No.1

was examined as PW1 and one eyewitness was examined as P.W2. On

behalf of the respondents, the law officer of the second respondent was

examined as R.W1. On behalf of the claimants, 13 documents were

marked as Exhibit P1 to Exhibit P13. On behalf of the second

respondent, the final report and the rough sketch were marked as

Exhibit R1 and Exhibit R2.

6. The Tribunal, based on the evidence available on record, came

to the conclusion that the deceased has also contributed to the accident

and hence, fixed contributory negligence at the rate of 10% on the

deceased. The Tribunal had fixed the monthly income of the deceased

at Rs.9,000/- and awarded a sum of Rs. 14,47,020/- after deducting

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10% towards the contributory negligence. Aggrieved by the same, the

claimants have come before this court by way of this appeal.

7. The learned counsel for the appellants/claimants submitted

that the Tribunal failed to take into consideration the evidence of

eyewitness, PW2 and hence, erred in fixing 10% on contributory

negligence on the deceased. The learned counsel further submitted that

the amount of Rs. 9000/- fixed as monthly income of the deceased was

very much on the lower side having regard to the fact that the accident

had occurred in the year 2015. The learned counsel also submitted that

the Tribunal erred in not granting amount under the head 'loss of love

and affection' for the two minor children, namely the claimants 2 and 3.

8. The learned counsel for the second respondent submitted that

Exhibit R1, final report filed by the police, would indicate that the

negligence is on the part of the deceased. The learned counsel, by

taking this court to the rough sketch marked as Exhibit R2, submitted

that there was no fault on the part of the driver of the first respondent

vehicle and the accident had taken place only due to the negligence of

the deceased.

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9. A perusal of the rough sketch, Exhibit R2 would indicate that

the car, belonging to the first respondent, was proceeding from Salem

to Namakkal on the left side of the half road. The accident had

occurred, after the deceased crossed the median with his two wheeler,

on the farther half of road (left hand portion of road for first

respondent). Therefore, it is clear that the deceased crossed the road in

his two-wheeler without taking necessary precaution and without

noting fast-moving car on the farther half portion of the road.

Therefore, the Tribunal is justified in fixing a contributory negligence

of 10% on the part of the deceased. The said finding requires no

interference. As far as the income of the deceased is concerned, the

Tribunal fixed it at Rs.9,000/- per month. The accident had occurred in

the year 2015, therefore, this court feels that a sum of Rs.13,000/- per

month would be appropriate, having regard to the arguments advanced

by the claimants before the tribunal.

10. Before the Tribunal, the learned counsel for the claimants

relied on the judgment of Hon'ble Apex Court in the case of Neeta, w/o

Kallappa Kadolkar and Others Vs Divisional Manager, MSRTC,

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Kolhapur reported in 2015(1) TN MAC 161 SC and claimed that

monthly income should have been fixed at Rs.12,000/- per month. The

same is noted by tribunal in its order. In the light of the arguments

made before the Tribunal and having regard to the other facts and

circumstances, this court fixes the monthly income of the deceased at

Rs.13,000/- per month.

11. As per the law laid down by the Hon'ble Apex Court in

National Insurance Co.Ltd Vs Pranay Sethi and Others, the claimants

are entitled to 25% towards future prospects, therefore, the amount

under the head 'loss of dependency is calculated as follows:-

Rs.13,000 + 3,250 (13,000 x 25%) x 12 x 15 x 3/4 =

Rs.21,93,750/-.

12. The Tribunal has not awarded any amount towards loss of

love and affection for the two minor children, the claimants 2 and 3.

Therefore, the claimants 2 and 3 are entitled to Rs.40,000/- each under

the head 'loss of love and affection'. The compensation awarded by the

Tribunal under other heads are confirmed. Thus, the compensation

awarded by the Tribunal is enhanced from Rs.16,07,840/- to

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Rs.23,62,750/-, break-up as follows -

                              Sl. Description           Amount        Amount      Award
                              No                       awarded by     awarded confirmed or
                                                        Tribunal       by this  enhanced or
                                                          (Rs)       Court (Rs)   granted
                              1.    Loss of            15,18,840/-   21,93,750/-     Enhanced
                                    dependency
                              2.    Loss of             40,000/-      40,000/-       Confirmed
                                    consortium
                              3.    Loss of Estate      15,000/-       15,000/-      Confirmed
                              4.    Funeral expenses    15,000/-      15,000/-       Confirmed
                              5,    Loss of love and      NIL         80,000/-        Granted
                                    affection
                              6.    Transportation       5,000/-       5,000/-       Confirmed
                                    expenses
                              7     Medical Bills       14,000/-      14,000/-       Confirmed
                                          Total        16,07,840/-   23,62,750/      Enhanced
                                                                          -              by
                                                                                    Rs.7,54,910/-

13. With the above modifications, the Civil Miscellaneous

Appeal is partly allowed and the compensation awarded by the

Tribunal at Rs.16,07,840/- is hereby enhanced to Rs.23,62,750 /- The

appellants/claimants are entitled to interest at the rate of 7.5% per

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annum (excluding the delay period, if any) from the date of filing of

the claim petition till the date of realization. The second

respondent/Insurance Company is directed to deposit the enhanced sum

along with interest and costs, less the amount already deposited, if any,

within a period of four weeks from the date of receipt of copy of this

judgment. On deposit of the enhanced sum, the appellants/claimants

are entitled to withdraw the same along with interest and costs, less the