Madras High Court
Jayanthi vs B.Arumugam on 4 February, 2025
CMA.Nos.640 of 2020 and 2587 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 04.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CMA No.640 of 2020 and
CMA No.2587 of 2021
In CMA No.640 of 2020
1. Jayanthi
2. Sharmila
3. N.Vinith
4. M.Chinnaponnu ... Appellants
Vs.
1. B.Arumugam
2. The Manager,
United India Insurance co. Ltd.,
Motor third party claim office,
Silingi Building, IV Floor,
134, Greams Road, Chennai-6. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988 against the decree and judgment dated 03.06.2019
made in MACT OP No.5067/2017 on the file of the II Judge, Small
Causes Court, Chennai.
Page 1 of 14
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CMA.Nos.640 of 2020 and 2587 of 2021
In CMA No.2587 of 2021
N.Sharmila ... Appellant
Vs.
1. B.Arumugam
2. The Manager,
United India Insurance co. Ltd.,
Motor third party claim office,
Silingi Building, IV Floor,
134, Greams Road, Chennai-6. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988 against the decree and judgment dated 03.06.2019
made in MACT OP No.5068/2017 on the file of the II Judge, Small
Causes Court, Chennai.
In both appeals
For appellant/s : Ms.P.T.Saleem Fathima
For Respondents : Ms.R.Rathna Thara for second respondent
R1- exparte
COMMON JUDGMENT
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CMA.Nos.640 of 2020 and 2587 of 2021
The appellants in CMA No.640 of 2020 are the claimants in
MCOP No.5067 of 2017 and they are the legal representatives of the
deceased Nagarathinam, viz., the first claimant is wife and the
claimants 2 and 3 are his children and the fourth claimant is his mother.
2. The appellant in CMA No.2587 of 2021 is the claimant in
MCOP No.5068 of 2017 (2nd claimant in MCOP No.5067/2017), who
sustained injury in the same accident and she is also the daughter of the
deceased Nagarathinam.
3. Not satisfying with the quantum of compensation awarded by
the Tribunal, both the appeals have been filed by the respective
claimants, seeking enhancement of compensation.
4. The facts and circumstances of the case and issues involved in
both the appeals have been arisen out of same accident and hence, both
the appeals have been taken together for passing common judgment.
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CMA.Nos.640 of 2020 and 2587 of 2021
5. According to the claimants/appellants, on 04.07.2017 at 9.45
hours, the deceased Nagarathinam was riding the motor cycle bearing
registration No.TN-22-BP 8791 in Gandhi Road, and the second
claimant Sharmila was the pillion rider. When the deceased approached
Sathananthapuram City Union Bank, a Tata Ace Van, proceeding in
front of the vehicle driven by the deceased suddenly applied brake.
Therefore, the deceased was also constrained to apply brake, as result
of which, he lost his balance and fell down on the road. At that point of
time, a mini lorry belonging to the first respondent, came in the
opposite direction had hit the deceased, as a result of which, he
received head injuries and died on 05.07.2017 at Rajiv Gandhi
Government Medical College Hospital, Chennai. The pillion rider/
claimant in CMA No.2587 of 2021 suffered multiple abrasion injuries
on her right hand. Therefore, the appellants in CMA No.640 of 2020
filed MCOP No.5067 of 2017, seeking compensation of Rs.35,00,000/-
and the appellant in CMA No.2587 of 2021 filed MCOP No.5068 of
2017, seeking compensation of Rs.3,00,000/- .
6. The first respondent in both the appeals is owner of the mini
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CMA.Nos.640 of 2020 and 2587 of 2021
lorry and he remained exparte before the Tribunal and the claim
petitions were contested by the insurer of the mini lorry, namely second
respondent by filing counter affidavit, wherein it denied the allegations
made in the claim petitions.
7. The Tribunal, based on the available evidence, came to the
conclusion that the deceased also contributed to the accident and hence,
fixed 25% contributory negligence on the deceased. The Tribunal
awarded a compensation of Rs.12,70,000/- in favour of the legal heirs
of the deceased in MCOP No.5067 of 2017 and awarded a sum of
Rs.18,750/- as compensation to the claimant in MCOP No.5068 of
2017. Not satisfied with the quantum of compensation and also
fixation of contributory negligence on the part of the deceased, the
appellants have filed the present appeals.
8. The learned counsel for the appellants submitted that the
Tribunal ought not to have fixed contributory negligence on the part of
the deceased, when the mini lorry driven by the first respondent crossed
the median and caused the accident. The learned counsel further
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CMA.Nos.640 of 2020 and 2587 of 2021
submitted that the deceased was employed as a Spray Operator in
R.K.Leather Private Limited, Nagalkeni, Chrompet and was earning a
sum of Rs.18,000/- per month. The pay slip produced by the claimants
were not properly appreciated by the Tribunal and hence, a sum of
Rs.10,000/- fixed towards income of the deceased was very much on
lower side and the same need to be enhanced.
9. The learned counsel for the second respondent vehemently
contended that the accident took place due to the head on collusion and
therefore, the Tribunal is justified in fixing the contributory negligence
at 25% on the deceased. It is also submitted by her that though the
claimants produced pay slips and salary certificate as Ex.P11 and
Ex.P13 respectively to show that the salary of the deceased was
Rs.14,100/- per month, the said pay slips were not signed or sealed by
the issuing authority. Therefore, the Tribunal is justified in rejecting the
same and hence, she submitted that the finding of the Tribunal need not
be interfered with.
10. In order to fix the contributory negligence, this court had a
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CMA.Nos.640 of 2020 and 2587 of 2021
look at the sketch prepared by the police,which was marked as Ex.P3.
A perusal of the same would suggest that the mini lorry driven by the
first respondent crossed the median and came to the right hand side of
half of the road and caused the accident. The two wheeler driven by the
deceased found in left side half of the road. Therefore, it is clear that
the accident had occurred due to the negligence of the driver of the mini
lorry who crossed the median line. The Tribunal, without taking into
consideration of Ex.P3 sketch, had erroneously fixed the contributory
negligence on the part of the deceased. Therefore, the said finding of
the Tribunal is set aside and this court holds that the accident had taken
place due to the rash and negligent driving of the driver of the mini
lorry.
11. As far as the income of the deceased is concerned, the
accident took place in the year 2017. The appellants/claimants
produced Ex.P11 and Ex.P13 salary slips, wherein, monthly salary of
the deceased was mentioned as Rs.13,700/- and Rs.14,100/- per month.
Ex.P11 series are the computer generated pay slips issued to the
deceased for the month of January 2017 to April 2017 and the same
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CMA.Nos.640 of 2020 and 2587 of 2021
would indicate that the monthly salary of the deceased was Rs.13,700/-
Ex.P13 is the salary certificate issued by the employer of the deceased.
A perusal of the above salary slips would indicate that the salary of the
deceased at the relevant point of time was Rs.14,100/-. Ex.P13 further
shows that an allowance of Rs.400/- per month was fixed and the
Ex.P13 was signed by the employer. However, the Tribunal has made
an observation that the salary certificate was not signed and sealed by
the employer of the deceased and consequently, fixed a sum of
Rs.10,000/- as monthly income of the deceased. In view of the
foregoing discussion, the observation made by the Tribunal is not
correct and the fixation of Rs.10,000/- as monthly income is very much
on lower side. In the absence of any proof filed by the claimants to
show the income of the deceased, this court could have easily fixed the
notional income at Rs.15,000/-, by taking into consideration the date of
accident. However, in the case on hand, the claimants produced the
salary certificates, indicating that the income of the deceased was only
Rs.14,100/-. Therefore, this court proceeds to fix the income of the
deceased at Rs.14,100/- per month.
12. As per the law laid down by the Honourable Supreme Court
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CMA.Nos.640 of 2020 and 2587 of 2021
in National Insurance Company Limited Vs. Pranay Sethi and others
reported in AIR 2017 SC 5157( Special Leave Petition (Civil)
No.25590 of 2014 dated 31.10.2017), the claimants are entitled to 25%
enhancement towards future prospects. Therefore, the monthly income
of the deceased is fixed at Rs.17,625/- (14,100 +3525), which includes
25% future prospects. There are 4 dependents for the deceased.
Therefore, as the law laid down by the Hon'ble Supreme Court in Sarla
Verma and other Vs. Delhi Transport Corporation and another
reported in (2009) 6 SCC 121, 1/ 4 of the amount shall be deducted
towards personal expenses. Further, proper multiplier to be adopted in
this case is '13', as the deceased was aged 49 years. Accordingly, Loss
of dependency is fixed at Rs. 20,62,125/- [17,625 x 12 x 13 =
27,49,500 (-) 6,87,375 = 20,62,125]
13. The award passed by the Tribunal under the other
conventional heads, viz., loss of estate, funeral expenses, consortium to
the first claimant-wife and love and affection towards claimants 2 and
3/children, totalling to Rs.1,70,000/- are hereby confirmed. In all, the
claimants are entitled to Rs.22,32,125/-.
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CMA.Nos.640 of 2020 and 2587 of 2021
14. Accordingly, the modified award passed by this Court in
CMA No.640 of 2020 under various heads are as follows.
Sl. Description Amount Amount Award
No awarded by awarded by confirmed
Tribunal this Court or enhanced
(Rs) (Rs) or granted
1. Loss of dependency 15,21,000 20,62,125 enhanced
2. Loss of estate 15,000 15,000 confirmed
3. Funeral expenses 15,000 15,000 confirmed
4. Consortium to wife 40,000 40,000 confirmed
5. Love and affection 1,00,000 1,00,000 confirmed
Rs.50,000/- each to
claimants 2 and 3
6. Total 16,91,000 22,32,125
Less Contributory 4,22,750 nil enhanced
negligence at 25%
Award amount 12,68,250 22,32,125 enhanced by
rounded off 9,62,125
to 12,70,000
15. As far as the CMA No.2587 of 2021 is concerned, the
injured/ daughter of the deceased is the appellant/claimant. A perusal of
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CMA.Nos.640 of 2020 and 2587 of 2021
the typed set of papers and other records would indicate that she
sustained only simple injury in her right hand. Therefore, the Tribunal
awarded only a sum of Rs.25,000/- as compensation and after
deducting 25% towards contributory negligence, has granted
compensation at Rs.18,750/-. This court already held that the accident
had taken place due to the negligence of the driver of the mini lorry,
which came in the opposite direction. Therefore, the contributory
negligence cannot be fixed on the driver of the two wheeler. In such
circumstances, the deduction made by the Tribunal for contributory
negligence is liable to be set aside. Taking into consideration the nature
of simple injury suffered by the claimant, this court feels that the
amount of Rs.25,000/- would represent just compensation.
16. Accordingly, the appellant/ claimant in CMA No.2587/2021
is entitled to a sum of Rs.25,000/- as compensation.
17. With the above modifications, this Civil Miscellaneous
Appeals are partly allowed.
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CMA.Nos.640 of 2020 and 2587 of 2021
As far as the CMA No.640 of 2020 is concerned, the
compensation awarded by the Tribunal at Rs.12,70,000/- is hereby
enhanced to Rs.22,32,125/- together with interest at 7.5% per annum
(excluding the default period, if any) from the date of petition till the
date of deposit.
As far as the CMA No.2587 of 2021 is concerned, the
compensation awarded by the Tribunal at Rs.18,750/- is hereby
enhanced to Rs.25,000/- together with interest at 7.5% per annum
(excluding the default period, if any) from the date of petition till the
date of deposit.
18. The second respondent is directed to deposit the
compensation amount now determined by this Court in both the
appeals, along with interest and costs, less the amount already
deposited, if any, within a period of six weeks from the date of receipt
of a copy of this judgment. On such deposit, the appellants/claimants
shall be permitted to withdraw the compensation amount along with
interest and costs, less the amount if any, already withdrawn, on filing
formal application. No costs.
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CMA.Nos.640 of 2020 and 2587 of 2021
04.02.2025
Index:Yes/No
Internet:Yes/No
mst
To
1. The II Judge, Small Causes Court,
Chennai.
2. The Manager, United India Insurance co. Ltd.,
Motor third party claim office,
Silingi Building, IV Floor,
134, Greams Road, Chennai-6.
https://www.mhc.tn.gov.in/judis
CMA.Nos.640 of 2020 and 2587 of 2021
S.SOUNTHAR, J.
mst
CMA No.640 and 2587 of 2021
04.02.2025
https://www.mhc.tn.gov.in/judis
