Madras High Court

A.Geetha vs Kedhar on 25 March, 2025

                                                                                       CMA.No.2380 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 25.03.2025

                                                           CORAM

                                   THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                                CMA.No.2380 of 2022

                     1.A.Geetha
                     2.A.Jayakumar

                     A.Vijaykumar (died)

                     3.Sheela Dorathi
                                                                                          ... Appellants
                                                                Vs.
                     1.Kedhar
                     (R1 was set exparte in the trial Court)

                     2.ICICI Lombard General Insurance Company Limited,
                     Chota Bai Centre, 140, 3rd Floor,
                     Ungambakkam High Road,
                     Chennai – 600 034.
                                                                                        ... Respondents

                     Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
                     Act, against the judgment and decree dated 29.09.2021 made in
                     MACTOP.No.3731 of 2015 on the file of the Special Subordinate Judge
                     No.2, to deal with MCOP Cases (Motor Accident Claims Tribunal),
                     Chennai.




                     1/10




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                                                                                        CMA.No.2380 of 2022

                                         For Appellants           :Mr.C.Munusamy

                                         For Respondents :Mr.B.Sivakolappan for R2



                                                    JUDGMENT

Not satisfied with the quantum of compensation awarded by the

Tribunal, the claimant has come before this Court.

2. It is the case of the claimants that on 08.03.2015, the husband

of the first claimant, father of the claimants 2 to 4 viz., Andrews died in a

road accident. It is the case of the claimants that he was riding motorcycle

along the GST Road, Chrompet, near T.B.Hospital from North to South

direction. A Hero Honda motorcycle bearing registration No.TN-07AJ-

3769 came in the opposite direction in a rash and negligent manner and

dashed against the deceased. Due to the said impact, he sustained grievous

injury and succumbed to injury at Rajiv Gandhi Government General

Hospital, Chennai. Therefore, the claim petition was filed seeking

compensation against the respondents as the offending vehicle belonged to

the first respndent and insured with the second respondent.

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3. Before the Tribunal, the first respondent owner of the vehicle

remained ex-parte and the claim petition was contested by the second

respondent insurer. It was the case of the second respondent that the

accident had occurred only due to the negligence on the part of the deceased

and hence they were not liable to pay compensation.

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

to the conclusion that the accident had occurred only due to the negligence

on the part of the rider of Hero Honda motorcycle insured with the second

respondent. However, the Tribunal fixed 10% contributory negligence on

the part of the deceased for his failure to possess the proper driving licence.

The amount payable to the claimants was quantified at Rs.8,97,000/-, after

deducting 10% towards contributory negligence. Not satisfied with the

quantum of compensation, the claimants have come before this Court.

5. The learned counsel appearing for the claimants would submit

that failure to hold the valid driving licence cannot be the reason for fixing

contributory negligence on the deceased and hence finding rendered by the

Tribunal on the question of contributory negligence needs to be set aside.

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The learned counsel further submits that the amount of Rs.9,500/- fixed by

the Tribunal as notional income is very much on the lower side and hence

the same has to be enhanced.

6. The learned counsel appearing for the second respondent/Insurance

Company would submit that the deceased possessed driving licence

[marked as Ex.P9] only for driving the car and he was not authorized to

drive a two wheeler and hence the Tribunal was right in fixing 10%

contributory negligence on the part of the deceased. The claimants have not

produced any documents to prove the avocation and income of the deceased

and hence the Tribunal was justified in fixing Rs.9,500/- as notional income

of the deceased.

7. It is seen from Ex.P9 driving licence of the deceased, he was

authorised to drive only Light Motor Vehicle and he was not authorised to

drive two wheeler. The Apex Court in Sudhir Kumar Rana vs. Surinder

Singh and others reported in CDJ 2008 SC 862 = (2008) 12 SCC 436,

while considering non-possession of driving license observed as follows:-

“8. If a person drives a vehicle without a licence, he

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commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two- wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.”

8. The Tribunal fixed 10% contributory negligence on the

deceased only on the ground he did not possess valid driving licence.

Non-possession of driving licence per se is not a ground to fix contributory

negligence on the part of the deceased, when there is no positive evidence to

show that the deceased contributed to the accident. In the case on hand,

merely because the deceased did not possess valid driving licence to drive

motorcycle, the Tribunal was not justified in fixing contributory negligence

in the absence of any positive evidence to show that by his act, he

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contributed to the negligence. Therefore, the finding of the Tribunal with

regard to the contributory negligence is set aside.

9. The claimants in their claim petition have stated that the

deceased was a driver earning Rs.11,000/- per month. However, in order to

prove the avocation and income, the claimants have not produced any

documents. In case on hand, the accident had occurred in the year 2015.

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

feels the amount of Rs.11,000/- claimed by them as income of the deceased

cannot be treated as excessive one. Therefore, this Court is inclined to

adopt Rs.11,000/- as notional income of the deceased. As per

Ex.P9-driving licence, the Tribunal fixed the age of the deceased as 59

years. Therefore, the claimants are entitled to 10% enhancement towards

future prospects. There were four claimants at the time of accident.

Therefore, 1/4th of the amount has to be deducted towards personal expenses

of the deceased.

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10. It is brought to the notice of this Court, the 3rd claimant

namely A.Vijayakumar died pending original petition. However, his estate

will go to the mother, the 1st claimant in her capacity as class 1 legal heir.

11. In view of the discussions made earlier, the loss of

dependency is fixed at Rs.9,80,100/- (Rs.11,000/-x1.1x12x9x3/4). The

amount awarded by the Tribunal under the various other conventional heads

viz., Loss of consortium, loss of estate and funeral expenses are confirmed

and 10% of contributory negligence is set aside.

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.8,46,450/-             Rs.9,80,100/-
                                                                                          Rs.1,60,000/- (4
                            2. Loss of Consortium               Rs.1,20,000/-
                                                                                          members
                            3. Loss of Estate                   Rs.15,000/-               Rs.15,000/-
                            4. Funeral Expenses                 Rs.15,000/-               Rs.15,000/-
                                       Total                    Rs.9,96,450/-             Rs.11,30,100/-







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                            Sl.          Description                 Compensation            Compensation
                          No.                                        awarded by the         awarded by this
                                                                       Tribunal                 Court
                                                                  Rs.99,645
                                  Less 10% of contributory        Rs.8,96,805/-
                                                                                            Rs.11,30,100/-
                                  negligence                      rounder off to
                                                                  Rs.8,97,000

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

awarded by the Tribunal is enhanced to Rs.11,30,100/-, The 2nd

respondent/Insurance Company is directed to deposit 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, after deducting the amount already

deposited, if any, to the credit of MACTOP.No.3731 of 2015, on the file of

Special Sub Judge No.2 to deal with MCOP Cases (Motor Accident Claims

Tribunal, Chennai, within a period of six weeks from the date of receipt of

copy of this judgment. On such deposit, the appellants/claimants are

permitted to withdraw their respective award amount by filing appropriate

application before the Tribunal. The 1st claimant is entitled to Rs.7,30,100/-

and the claimants 2 and 4 are entitled to Rs.2,00,000/- (each)