Madras High Court
Mr.Jeyakannan vs Mr.Divya Impex on 21 December, 2016
Bench: R.Subbiah, J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.12.2016
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.A.(MD)No.2053 of 2013
1.Mr.Jeyakannan
2.J.Vasuki Kannan
3.J.Thanumalayan
[Minor represented through his
natural guardian the first appellant] : Appellants
Vs.
1.Mr.Divya Impex
2.The Divisional Manager,
ICICI Lombard General,
Insurance Company Limited,
Zenith House, Kashaviso Khadye Marg,
Mahalaxmi, Mumbai-400 034. : Respondents
PRAYER: Appeal is filed under Section 173 of the Motor Vehicles Act, 1988,
praying to enhance the compensation as per the judicial pronouncements of our
High Courts as well as the Apex Court and to set aside in portion of the
Decree and Judgments passed in M.C.O.P.No.123 of 2011, dated 12.08.2013
passed by the Motor Accident Claims Tribunal, the learned VIth Additional
District and Sessions Judge, Madurai, in respect of fixing 20% negligence of
the deceased.
!For Appellants : Mr.K.C.Ramalingam
^For Respondent No.2 : Mr.S.Srinivasaraghavan
:JUDGMENT
[Judgment of the Court was delivered by R.SUBBIAH, J] The claimants are on appeal challenging the judgment and decree dated 12.08.2013, made in M.C.O.P.No.123 of 2011, on the file of the Motor Accident Claims Tribunal, the learned VIth Additional District and Sessions Judge, Madurai.
2. The brief facts of the case are as follows:-
The accident in this case happened on 26.10.2010. The appellants are the father, mother and brother of the deceased Hardhip Vivek, who died in a motor accident that had occurred on 26.10.2010, involving the lorry bearing Registration No.TN-05-AB-3532 owned by the first respondent and insured with the second respondent Insurance Company.
3. In order to prove the claim, on the side of the appellants, the first appellant examined himself as P.W.1, besides examining one Thirunagalingam as P.W.2 and marked Exs.P.1 to P.10. On the side of the respondents, no evidence was adduced and no document was marked.
4. The Tribunal, after analyzing the entire evidence, has come to the conclusion that the accident is the result of contributory negligence of the deceased as well as the driver of the vehicle insured with the second respondent Insurance Company and thus, fixed the liability at the rate of 20% on the part of the deceased and 80% on the part of the driver of the lorry. Considering the factual aspects, the Tribunal awarded the following amounts as compensation with interest at the rate of 7.5% per annum:-
Sl.No. Head Amount granted by the Tribunal 1 For loss of income Rs.5,000x12x14 Rs.8,40,000/-2
For loss of love and affection Rs. 20,000/-
3 For transport expenses Rs. 2,000/- 4 For funeral expenses Rs. 5,000/- Total Rs. 8,67,000/-
Since the Tribunal has fixed 20% negligence on the part of the deceased, by deducting 20% from the total compensation, the Tribunal awarded a sum of Rs.6,93,600/- as compensation.
5. Challenging the fixation of 20% liability on the part of the deceased and not being satisfied with the quantum of compensation awarded by the Tribunal, the present appeal has been filed.
6. Heard the submissions made on either side.
7. So far as the rash and negligent aspect is concerned, it is the case of the claimants that on the date of accident, the deceased was proceeding in his two wheeler, viz., Bajaj Pulsar Motorcycle bearing Registration No.TN-59-AP-0209 from West to East, Highground Tiruchendur Road, at a moderate speed. At that time, the container lorry bearing Registration No.TN-05-AB-3532 owned by the first respondent and insured with the second respondent, which was coming on the same direction dashed behind the deceased vehicle at a hectic speed and due to impact, the deceased fell down and sustained injury and died on the way to hospital. In order to prove the rash and negligent aspect, on the side of the claimants, one Thirunagalingam was examined as P.W.2 as eye witness to the occurrence. During the cross- examination, he had stated that the two wheeler, in which, the deceased was coming on the road, hit on the rear side wheel of the lorry and thus, got involved in the accident. The Tribunal, by placing reliance on the evidence of P.W.2, has come to the conclusion that the accident ought to have occurred, while the deceased made an attempt to overtake the lorry and thus, the Tribunal has rightly fixed 20% liability on the part of the deceased. Therefore, in our considered opinion, though no evidence was adduced on the side of the Insurance Company, admission made by the eye witness-P.W.2, during the course of his cross-examination that the accident had occurred due to hit of two wheeler on the rear side of the lorry by the deceased, would show that there is contributory negligence on the part of the deceased also. Therefore, we do not find any infirmity in respect of the finding relating to fixing of liability of 20% on the part of the deceased.
8. Now, coming to quantum of compensation is concerned, it is the case of the appellants that at the time of accident, the deceased was studying in the second year M.B.B.S., Course in Tirunelveli Medical College. Hence, considering the future prospect of the deceased, the Tribunal fixed a sum of Rs.10,000/- as monthly income and after deducting Rs.5,000/- towards his personal expenses, by adopting the multiplier of '14', based on the age of the parents of the deceased, who were 45 years at the time of accident, the Tribunal has awarded a sum of Rs.8,40,000/- towards loss of income. Now, it is the case of the appellants that a sum of Rs.10,000/- fixed by the Tribunal as monthly income is extremely on the lower side. In this regard, the learned counsel for the appellants also relied upon a judgment of a Division Bench of this Court reported in 2014 ACJ 2693 [Managing Director, Metropolitan Transport Corpn. Ltd. v. S.Mariam Beevee]. In an identical situation, the Division Bench of this Court, for the death of a medical student, has fixed a sum of Rs.30,000/- as monthly income and hence, by fixing a sum of Rs.30,000/-, the Award of the Tribunal is to be enhanced under the head of loss of income. However, considering the facts of the case, we are of the opinion that the fixation of Rs.18,000/- as monthly income is just and reasonable. After deducting 50% towards his personal expenses and adopting the multiplier of '18', the loss of income comes to Rs.19,44,000/- (Rs.9,000x12x18). Thus, the appellants are entitled to a sum of Rs.19,44,000/- towards loss of income. We find that the Tribunal has awarded only a sum of Rs.20,000/- towards loss of love and affection. The said amount appears to be on the lower side and the same is hereby enhanced to Rs.1,00,000/-. A sum of Rs.2,000/- awarded by the Tribunal towards transport expenses is hereby enhanced to 15,000/-. Similarly, Rs.5,000 awarded by the Tribunal towards funeral expenses is hereby enhanced to Rs.25,000/-. Further, a sum of Rs.16,000/- is hereby awarded under the head of loss of estate.
9. Considering all these aspects, the award of the Tribunal is enhanced as follows:
Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 For loss of income Rs. 8,40,000/-
Rs.19,44,000/-
2 For loss of love and affection Rs. 20,000/- Rs. 1,00,000/- 3 For transport expenses Rs. 2,000/- Rs. 15,000/- 4 For funeral expenses Rs. 5,000/- Rs. 25,000/- 5 For loss of estate ------- Rs. 16,000/- TOTAL Rs. 8,67,000/- Rs.21,00,000/-
10. The Tribunal fixed 20% negligence on the part of the deceased and thus, after deducting 20% on the amount now granted by this Court, the claimants are entitled to a sum of Rs.16,80,000/- as compensation.
11. In the result, the Civil Miscellaneous Appeal is allowed in part in the following terms:-
(i) The Award of the Tribunal is enhanced to Rs.16,80,000/- from Rs.6,93,600/-.
(ii) The enhanced award amount will bear interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit. (iii) The Insurance Company is directed to deposit the enhanced award amount with interest at the rate of 7.5% per annum, after deducting the amount already deposited, if any, within a period of eight weeks from the date of receipt of a copy of this judgment.
(iv) On such deposit, the appellants 1 and 2 are permitted to withdraw the compensation amount as apportioned by the Tribunal. So far as the third appellant is concerned, since he is a minor at the time of filing Claim Petition and now, he would have attained majority, he is directed to file an application before the Tribunal to declare him as major and on filing of such application, the Tribunal is directed to pass appropriate orders declaring him as major and thereafter, permit him to withdraw his share, as apportioned by the Tribunal.
(v) There will be no order as to costs in this appeal.
To
1.The Motor Accident Claims Tribunal, the learned VIth Additional District and Sessions Judge, Madurai.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.