Madras High Court
The Managing Director vs Santhi ... 1St on 2 January, 2025
Author: J.Nisha Banu
Bench: J.Nisha Banu
2025:MHC:4252
CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 06 / 12 / 2024
JUDGMENT PRONOUNCED ON : 02 / 01 / 2025
CORAM:
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
AND
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
CMA NO.521 OF 2024
AND
CMP NO.5171 IN CMA NO.521 OF 2024
AND
CROS.OBJ.NO.41 OF 2024
CMA NO.521 OF 2024
The Managing Director
M/s.Cholamandalam MS General
Insurance Company Limited
Old No.10, New No.23, 100 Feet Road,
Sundararaja Nagar, Mudaliyarpet,
Pondicherrry – 605 004. ... Appellant / 2nd Respondent
Vs.
1.Santhi ... 1st Respondent / 1st Petitioner
2.Minor.Hari Prasad Yadav ... 2nd Respondent / 2nd Petitioner
3.Minor.Girish Yadav ... 3rd Respondent / 3rd Petitioner
(R2 and R3 Rep. by their mother
and next friend Shanthi)
4.Arumugham ... 4th Respondent / 4th Petitioner
Page No.1 of 16
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
5.Rukmani … 5th Respondent / 5th Petitioner
6. Madan Nath … 6th Respondent /1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, praying to set aside the Award dated July 21, 2023
passed in M.C.O.P.No.764 of 2021 by the Motor Accident Claims
Tribunal, Special District Court -II, Cuddalore.
For Appellant : Mr.J.Michael Visuvasam
For Respondents 1 to 5 : Mr.F.Terry Chella Raja
For Respondent 6 : Left
CROS.OBJ.NO.78 OF 2024
1.Santhi
2.Minor.Hari Prasad Yadav
3.Minor.Girish Yadav
(Note: Cross Objectors 2 and 3
are represented by their mother
and next friend - Shanthi)
4.Arumugham
5.Rukmani ... Cross Objectors /
Respondents 1-5
Vs.
1.The Branch Manager
M/s.Cholamandalam MS
Page No.2 of 16
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
General Insurance Company Limited,
Old No.10, New No.23, 100 Feet Road,
Sundararaja Nagar, Mudaliyarpet,
Pondicherry. … 1st respondent/
Appellant
2. Madan Nath … 2nd respondent/
6th Respondent
PRAYER: Cross Objection filed under Order XLI Rule 22 of Code of
Civil Procedure, 1908 for enhancement of compensation awarded vide
Award dated July 21, 2023 passed in M.C.O.P.No.764 of 2021 by the
Motor Accident Claims Tribunal, Special District Court -II, Cuddalore.
For Cross Objectors : Mr.F.Terry Chella Raja
For Respondent -2 : Mr.J.Michael Visuvasam
For Respondent-1 : Left
COMMON JUDGMENTR.S
R.SAKTHIVEL, J.
Feeling aggrieved by the ‘Award dated July 21, 2023 passed
in M.C.O.P.No.764 of 2021 by the 'Motor Accident Claims Tribunal,
(Special District Court No.-II), Cuddalore' ['Tribunal' for short], the
second respondent therein - Insurance Company has preferred
C.M.A.No.521 of 2024 praying to set aside the Award, while the
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
petitioners therein have preferred Cross Objection No.41 of 2024 praying
to enhance the compensation. This Common Judgment will govern both,
the Civil Miscellaneous Appeal and the Cross Objection.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Motor Claims Original Petition.
3. By the impugned Award, the Tribunal has computed a
compensation of Rs.59,42,375/-, out of which 10% has been deducted
towards contributory negligence on the part of deceased and thus, the
Tribunal awarded a compensation of Rs.53,48,200/- to the petitioners 1 to
5 along with interest at 7.5% per annum from the date of filing of claim
petition till the date of deposit.
PETITIONERS' CASE:
4. The first petitioner is the wife of the deceased – Srinivasan.
Second and third petitioners are his minor sons. Fourth and fifth
petitioners are his parents. On the fateful day viz., May 1, 2021, at about
05.30 p.m., the deceased–Srinivasan was riding his motorcycle bearing
Registration No.TN-91-Y-5555, on Virudachalam to Cuddalore Main
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
Road. While so, the First respondent's Honda Activa bearing Registration
No.TN-31-CW-9015 travelling in the same direction, at a high speed in a
rash and negligent manner, hit behind the deceased’s motorcycle, as a
result of which, the deceased was thrown off the motorcycle. The deceased
sustained grievous injuries on his head and multiple fractures all over his
body. Immediately, he was taken to Government Hospital, Virudachalam
and subsequently he was transferred to JIPMER, Pondicherry. Thereafter,
he succumbed to the injuries on May 2, 2021.
4.1. At the time of accident, the deceased was aged about 45
years, and was earning a sum of Rs.2,00,000/- per month being the
proprietor of ‘Srinivasa Transport and Contractor’.
4.2. The first petitioner lodged a complaint before
Mandharakuppam Police station against the driver of an unregistered
motorcycle. After investigation, police officials filed Ex.P.8 - Final Report
as against the rider of the Honda Activa Scooter bearing Reg.No.TN-31-
CW-9015. According to the petitioners, the accident occurred only due to
the rash and negligent riding of the rider of the Honda Activa Scooter; the
first respondent's vehicle was insured with the second respondent –
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
Insurance Company; and hence, both the respondents are liable to pay
compensation to the petitioners. Accordingly, the petitioners filed the
Claim Petition before the Tribunal seeking compensation of
Rs.2,00,00,000/- (Rupees Two Crores only) along with interest and costs.
RESPONDENTS' CASE
5. The first respondent remained absent and therefore, was set
ex-parte before the Tribunal.
6. The second respondent filed counter denying the Claim
Petition averments and also contending that the first respondent had no
valid driving licence at the time of accident. According to them, the
deceased was riding the motorcycle and suddenly crossed the road and
hence, he also contributed to the accident. Hence, the owner and the
Insurance company of the deceased travelled motorcycle are also
necessary parties to the proceedings. Therefore, this petition is liable to be
dismissed.
TRIBUNAL
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
7. The Tribunal framed the following points for
consideration:-
i) Whether the accident took place due to the rash and
negligent act of the driver of the vehicle bearing
Reg.No.TN-31-CW-9015?
ii) Whether the respondents are liable to pay
compensation?
Iii) Whether the petitioners are entitled for the
compensation ? If so, from whom and what is the
quantum?
iv) To what other reliefs, the petitioners are entitled to?
8. Before the Tribunal, on the side of the petitioners, the first
petitioner / wife of the deceased - Srinivasan was examined as P.W.1, one
Jayasankar, eyewitness to the accident, was examined as P.W.2 and 15
documents were marked as Ex-P.1 to Ex-P.15. The respondents did not let
in any oral or documentary evidence.
9. The Tribunal after considering the pleadings, oral and
documentary evidence and upon hearing either side, held that the accident
occurred due to the rash and negligent riding of the Honda Activa
belonging to the first respondent and fixed 10% contributory negligence
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
on the part of the deceased for non-wearing of helmet and directed the
second respondent-Insurance Company, being the insurer of the Honda
Activa, to pay a sum of Rs.53,48,200/-, being 90% of the award amount,
as compensation to the petitioners 1 to 5. The breakup of the amount
awarded by the Tribunal is summarised below:-
Sl.No. Head Amount
1 Loss of Income Rs.56,79,375.00
Annual Income of the deceased (Rs.4,36,875/- x 13)
2 Loss of Spousal consortium to 1st petitioner Rs.44,000.00
3 Loss of Parental Consortium to 2nd and 3rd petitioners) Rs.88,000.00
4 Loss of filial Consortium to 4th and 5th petitioners Rs.88,000.00
5 Funeral expenses and loss of estate Rs.33,000.00
6 Transport Expenses Rs. 10,000.00
Total Rs.59,42,375.00
Deduct 10% of award amount for contributory negligence Rs.5,94,238.00
Total Compensation payable to the petitioners Rs.53,48,137.00
Rounded off to
Rs.53,48,200.00
10. Feeling aggrieved by the said Award, the second
respondent – Insurance Company has preferred the Civil Miscellaneous
Appeal. Dissatisfied with the Award amount, the petitioners have preferred
the Cross Objection praying to enhance the Award amount.
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
ARGUMENTS
11. The learned Counsel for the appellant / second
respondent- Insurance Company argued that the Tribunal has wrongly
fixed the income of the deceased at Rs.40,000/- p.m. which is excessive
and unjustified. The petitioners have not produced any income tax return
of the deceased in respect of his income from business. Further, the
Tribunal determined the loss of dependency at Rs.56,79,375/- which is
incorrect and exorbitant. Accordingly, he prayed to allow the Civil
Miscellaneous Appeal and set aside the Award.
12. Per contra, learned Counsel for the Cross Objectors /
petitioners submitted that the Tribunal ought not to have deducted 10% of
the compensation towards contributory negligence on the ground that the
deceased - Srinivasan was not wearing helmet at the time of accident,
when the 2nd respondent failed to prove the same. Further he contended
that the deceased was aged about 45 years and owned two lorries and
earned Rs.2,00,000/- per month at the time of accident, whereas the
Tribunal underestimated the income of the deceased at Rs.40,000/- per
month. To prove the income, the petitioners marked as Ex-P.9 and
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
Ex-P.11, the Registration Certificates of the two lorries and the Account
Statement of the deceased respectively. The Tribunal ought to have
awarded just compensation for the death of the deceased in the accident by
applying proper multiplier as per law. Accordingly, he prayed to allow the
Cross Objection and enhance the compensation.
DISCUSSION
13. This Court has considered the arguments advanced by the
learned counsel for the petitioners and the learned counsel for the second
respondent-Insurance Company, and has also perused the evidence on
record and the impugned Award passed by the Tribunal.
14. The accident is admitted. As regards negligence, the
question is whether the deceased contributed to the accident or not. The
case of the second respondent is that the deceased suddenly crossed the
road, without following the traffic rules and thus contributed to the
accident. But the second respondent has not produced any substantial
evidence to support the said averment. At the time of trial, the rider of the
Honda Activa Scooter was not examined by the second respondent. The
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
Tribunal held that the accident occurred due to the rash and negligent
riding of the first respondent's Honda Activa Scooter and found 10%
negligence on the part of the deceased for non-wearing of helmet.
15. As far as contributory negligence is concerned, in Ex-P.5-
Post-mortem Report, it is stated that the deceased sustained grievous
Cranio-Cerebral injuries in the accident. It is evident from the Post-
mortem Report that only because of the head injuries sustained by the
deceased, his death had occurred. Further, there is no evidence to suggest
the contra that the deceased was wearing helmet at the time of accident. If
the deceased had worn helmet at the time of accident, his death could have
been avoided. Thus, by non-wearing helmet, the deceased had also
contributed to the accident. In these circumstances, this Court is of the
view that the Tribunal has rightly held that the accident occurred due to
the negligence on the part of the rider of first respondent’s Honda Activa
and rightly fixed 10% contributory negligence on the part of the deceased
for non-wearing of helmet. Thus, this Court has no reason to interfere with
the findings of the Tribunal regarding negligence.
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
16. As far as the quantum of compensation is concerned,
according to the petitioners, the deceased was the proprietor of ‘Srinivasa
Transport and Contractor’ and earning a sum of Rs.2,00,000/- per month.
To prove the same, the petitioners had produced the documents, namely
Ex-P.9 to Ex-P.11. Admittedly, there is no direct evidence on the monthly
income of the deceased at the time of accident. On a perusal of Ex.P.9 –
Copy of Registration Certificates of two Lorries bearing Registration
Nos.TN-11-J-9121 & TN-55-AK-3272 respectively, it is observed that the
deceased owned the two lorries in his name and that they were maintained
by him, by paying Insurance Premium. Further, it is alleged by the
petitioners that the name of borrower viz., “N.Sivasankar” in Ex.P.14 –
Finance Company Pass Book, but the petitioners failed to examine the
said borrower to prove the monthly loan amount to the deceased. Further,
Ex.P.11- Bank Statement would go to show that the deceased had received
various payments by cash as well as by cheque and that he withdrew the
same. However, the petitioners did not file Books of Account to show the
monthly turnover of the business nor the Statement of Monthly Profit.
That apart, the petitioners have not chosen to file Annual Income Tax
Returns to prove his monthly income. Ex-P.11 – Bank Statements cannot
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
be taken as direct proof of actual income of the deceased. The deceased
being a business man would have naturally had a significant cash flow in
his bank account, but they do not conclusively prove the alleged income of
the deceased. In these circumstances, this Court is of the view that the
Tribunal is right in notionally fixing Rs.40,000/- as the monthly income
of the deceased.
17. The age of the deceased being 46 years, the Tribunal has
rightly applied 25% future prospects, after deducting income tax from the
annual income of the deceased, and has also rightly deducted 1/4th thereof
towards personal expenses of the deceased, and rightly applied the
multiplier of 13 to arrive at the compensation of Rs.56,79,375/- under the
head “loss of dependency”. Further, the Tribunal enhanced the
conventional head by 10%, which is in tune with the decision of the
Hon’ble Supreme Court in National Insurance Company Limited v.
Pranay Sethi & Ors reported in (2017) 16 SCC 680. This Court does not
find any interference with the same.
18. Thus, this Court has no reason to interfere with the Award
of the Tribunal. Both, the Civil Miscellaneous Appeal and the Cross
Objection are devoid of merits and liable to be dismissed.
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
CONCLUSION
19. In the result, the Civil Miscellaneous Appeal and the
Cross Objection are dismissed, and the Award dated July 21, 2023 passed
in M.C.O.P.No.764 of 2021 by the Tribunal is hereby confirmed. In view
of the facts and circumstances of this case, there shall be no order as to
costs. Consequently, connected miscellaneous petition is closed.
[J.N.B., J.] [R.S.V., J.]
02 / 01 / 2025
Index : Yes
Neutral Citation : Yes
Speaking Order : Yes
kkd /tk
To
The Motor Accident Claims Tribunal
Special District Court -II,
Cuddalore.
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
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CMA NO.521 OF 2024 & CROS.OBJ.NO.41 OF 2024
J. NISHA BANU, J.
AND
R. SAKTHIVEL, J.
kkd/tk
PRE-DELIVERY COMMON JUDGMENT MADE IN
CMA NO.521 OF 2024
AND CROS.OBJ.NO.41 OF 2024
02 / 01 / 2025
https://www.mhc.tn.gov.in/judis
