C.M.A.No.
765 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.02.2020
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.765 of 2020
1.Saraswathy
2.Minor Yamuna Devi
3.Minor Umadevi
(Minors/appellants 2 and 3 rep. by their
next friend and mother/1st appellant)
4.Umadevi .. Appellants
Vs.
1.Premkumar
2.The Divisional Manager
New India Assurance Company Ltd.
Divisional office, No.29
Paramathi road, Namakkal taluk
Namakkal District-637 001. .. Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated 05.07.2019 made
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C.M.A.No.765 of 2020
in M.C.O.P.No.3 of 2015 on the file of Motor Accident Claims Tribunal,
Additional District Court, Namakkal.
For Appellants : Mr.A.Sathish Kumar
For R2 : Mr.J.Chandran
JUDGMENT
The Civil Miscellaneous Appeal is filed challenging the portion of the
award fixing 10% contributory negligence on the part of the deceased as well
as for enhancement of compensation granted by the Tribunal in the award
dated 05.07.2019 made in M.C.O.P.No.3 of 2015 on the file of Motor
Accident Claims Tribunal, Additional District Court, Namakkal.
2.The appellants are claimants in M.C.O.P.No.3 of 2015 on the file of
Motor Accident Claims Tribunal, Additional District Court, Namakkal. They
filed the said claim petition claiming a sum of Rs.30,00,000/- as
compensation for the death of one Ramesh, who died in the accident that took
place on 08.10.2014.
3.According to the appellants, on the date of accident i.e., on
08.10.2014 at about 7.10 p.m., while the deceased Ramesh was riding in his
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C.M.A.No.765 of 2020
motorcycle on Namakkal to Trichy road, near Valayapatti power house, a
tipper lorry, which came in the opposite direction, belonging to the 1st
respondent, driven by its driver in a rash and negligent manner, dashed on the
motorcycle and caused the accident. Due to the accident, the deceased
Ramesh sustained grievous injuries and succumbed to his injuries on
15.10.2014. Therefore, the appellants filed the said claim petition claiming
compensation against the respondents.
4.The 1st respondent, owner of the tipper lorry, remained exparte before
the Tribunal.
5.The 2nd respondent/Insurance Company filed counter statement
denying the averments made in the claim petition and stated that the driver of
the tipper lorry after noticing that the deceased Ramesh rode the motorcycle
in a rash and negligent manner towards centre portion of the road, blown
horn, applied brake suddenly and further swerved his vehicle to the extreme
left side of the road to avoid the accident. The deceased Ramesh alone rode
the motorcycle in the wrong side of the road and invited the accident. In the
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C.M.A.No.765 of 2020
final report, it was stated that the deceased alone was responsible for the
accident. The deceased was the tort-feasor and therefore, the appellants are
not entitled to any compensation. The 2nd respondent/Insurance Company has
also denied the age, avocation and income of the deceased. In any event, the
compensation claimed by the appellants is excessive and prayed for dismissal
of the claim petition.
6.Before the Tribunal, the 1st appellant, wife of the deceased, examined
herself as P.W.1 and one Karthikeyan, eye-witness to the accident, was
examined as P.W.2 and marked 11 documents as Exs.P1 to P11. The
appellant/Insurance Company examined one Vinoba, Assistant Manager, as
R.W.1 and marked four documents as Exs.R1 to R4.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
both the deceased as well as the driver of the tipper lorry belonging to the 1st
respondent, fixed 10 : 90 contributory negligence on the part of the deceased
as well as the driver of the tipper lorry respectively, awarded a sum of
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C.M.A.No.765 of 2020
Rs.19,72,600/- as compensation to the appellants and directed the 2nd
respondent/Insurance Company being insurer of the said tipper lorry, to pay a
sum of Rs.17,75,340/- i.e., 90% of the compensation to the appellants.
8.Challenging the portion of the award fixing 10% contributory
negligence on the part of the deceased as well as for enhancement of
compensation, the appellants have come out with the present appeal.
9.The learned counsel appearing for the appellants contended that the
Tribunal rightly accepted the evidence of P.W.2 and held that the accident has
occurred only due to rash and negligent driving by the driver of the tipper
lorry belonging to the 1st respondent. But the Tribunal erred in fixing 10%
contributory negligence on the part of the deceased instead of fixing entire
negligence on the part of the driver of the tipper lorry. The deceased was
working as a lorry driver at the time of accident and was earning a sum of
Rs.15,000/- per month & Rs.200/- as daily batta. The Hon'ble Apex Court
fixed notional income of the deceased at Rs.12,000/- for the accident
occurred in the year 2011. In the present case, the accident has occurred in the
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C.M.A.No.765 of 2020
year 2014. The Tribunal ought to have fixed notional income of the deceased
at Rs.15,000/- and granted 40% enhancement towards future prospects. The
amounts awarded by the Tribunal towards transportation and loss of love &
affection are meagre and prayed for setting aside the portion of the award
fixing 10% contributory negligence on the part of the deceased and for
enhancement of compensation.
10.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that the deceased drove the
vehicle in a rash and negligent manner in the middle of the road and only due
to his negligence, the accident has occurred. The 2nd respondent/Insurance
Company has marked the final report as Ex.R2, wherein the Police after
investigation, altered F.I.R. and closed the case as 'abated', as the negligence
was on the part of the deceased. The 2nd respondent has marked the rough
sketch as Ex.R3 to show the place of accident and that the accident has
occurred due to negligence on the part of the deceased. The Tribunal ought to
have fixed entire negligence on the part of the deceased instead of fixing
10%. The appellants failed to substantiate the contention with regard to the
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C.M.A.No.765 of 2020
avocation and income of the deceased. In the absence of any material
evidence, the Tribunal erred in fixing monthly income of the deceased at
Rs.8,000/-, which is excessive. The total compensation awarded by the
Tribunal is excessive and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellants as well as the
2nd respondent/Insurance Company and perused the entire materials available
on record.
12.It is the contention of the appellants that while the deceased was
riding in his motorcycle on the left side of the road, driver of the tipper lorry,
which came in the opposite direction in a rash and negligent manner, dashed
against the motorcycle and caused the accident. To substantiate their case, the
appellants examined the eye-witness to the accident as P.W.2, who deposed
that the accident has occurred only due to rash and negligent driving by the
driver of the tipper lorry belonging to the 1st respondent. The appellants have
also marked the F.I.R. as Ex.P1, which was registered against the driver of the
tipper lorry. On the other hand, it is the contention of the 2nd
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C.M.A.No.765 of 2020
respondent/Insurance Company that the accident has occurred only due to
rash and negligent riding of the motorcycle by the deceased in the middle of
the road. The 2nd respondent did not examine any eye-witness to the accident
or driver of the tipper lorry to substantiate their contention. On the other
hand, they have marked the altered final report as Ex.R2, wherein the Police
after investigation, closed the case as 'abated', as the accident has occurred
only due to rash and negligent riding of the motorcycle by the deceased. The
2nd respondent also marked the rough sketch as Ex.R3 to prove their case. The
Tribunal considering the evidence of P.W.2, Ex.R2/final report &
Ex.R3/rough sketch, held that the accident has occurred only due to rash and
negligent driving by both the deceased as well as the driver of the tipper lorry
and fixed 10 : 90 contributory negligence on the part of the deceased as well
as driver of the tipper lorry belonging to the 1st respondent. There is no error
in the said finding of the Tribunal warranting interference by this Court.
13.As far as quantum of compensation is concerned, the appellants
have contended that the deceased was earning a sum of Rs.15,000/- per
month and Rs.200/- as daily batta, by working as a lorry driver at the time of
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C.M.A.No.765 of 2020
accident. The appellants have failed to prove the said contention. In the
absence of any material evidence to prove the income of the deceased, the
Tribunal fixed a sum of Rs.8,000/- per month as notional income of the
deceased. The accident is of the year 2014 and the notional income fixed by
the Tribunal is meagre. Hence, a sum of Rs.12,000/- per month is fixed as
notional income of the deceased. As per Ex.P9/driving license of the
deceased, the deceased was aged 37 years at the time of accident. The
Tribunal granted 40% enhancement towards future prospects, applied
multiplier '15' and deducted 1/4th towards personal expenses and the same are
correct. Thus, the compensation awarded by the Tribunal towards loss of
dependency is enhanced to Rs.22,68,000/- (Rs.12,000/- + 4800 [Rs.12,000/-
X 40%] X 12 X 15 X 3/4). The Tribunal has not awarded any compensation
towards loss of love & affection to the appellants 2 & 3, who are minor
daughters of the deceased. Hence, a sum of Rs.40,000/- each is awarded
towards loss of love & affection to the appellants 2 & 3. The amounts
awarded by the Tribunal under all other heads are just and reasonable and
hence, the same are confirmed. Thus, the compensation awarded by the
Tribunal is modified as follows:
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C.M.A.No.765 of 2020
S.No Description Amount Amount awarded Award
awarded by by this Court confirmed or
Tribunal (Rs) enhanced or
(Rs) granted or
reduced
1. Loss of 15,12,000 22,68,000 Enhanced
dependency
2. Loss of estate 15,000 15,000 Confirmed
3. Funeral 15,000 15,000 Confirmed
expenses
4. Loss of 40,000 40,000 Confirmed
consortium to
the 1st appellant
5. Medical 3,85,576 3,85,576 Confirmed
expenses
6. Transportation 5,000 5,000 Confirmed
7. Loss of love - 80,000 Granted
and affection to
the appellants 2
&3
Total 19,72,576 28,08,576
rounded off to rounded off to
19,72,600 28,08,600
90% of the 17,75,340 25,27,740 Enhanced by
award amount Rs.7,52,400/-
14.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.19,72,600/- is hereby
enhanced to Rs.28,08,600/- together with interest at the rate of 7.5% per
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C.M.A.No.765 of 2020
annum from the date of petition till the date of deposit. The appellants are
directed to pay necessary Court fee, if any, on the enhanced compensation.
The 2nd respondent/Insurance Company is directed to deposit 90% of the
enhanced award amount now determined by this Court i.e., Rs.25,27,740/-
along with interest and costs, less the amount if any, already deposited by
them, within a period of six weeks from the date of receipt of a copy of this
judgment. On such deposit, the appellants 1 & 4 are permitted to withdraw
their respective share of the award amount as per the apportionment fixed by
the Tribunal, along with proportionate interest and costs, less the amount if
any, already withdrawn. The share amounts of the minors/appellants 2 & 3
are directed to be deposited in any one of the Nationalised Banks till the
minors attain majority. The 1st appellant, being mother of the
minors/appellants 2 & 3, is permitted to withdraw the accrued interest once in
three months for the welfare of the minors. No costs.
28.02.2020
Index : Yes / No
kj
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C.M.A.No.765 of 2020
V.M.VELUMANI, J.,
kj
To
1.The Additional District Judge
The Motor Accident Claims Tribunal
Namakkal.
2.The Section Officer
V.R.Section
High Court, Chennai.
C.M.A.No.765 of 2020
28.02.2020
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