High Court · 2025

CMA.No.2630 of 2021IN THE HIGH COURT OF JUDICATURE AT MADRASDated 12.03.2025CORAM:THE HONOURABLE MR.JUSTICE S.SOUNTHARCMA No.2630 of 20211. Selvi2. Chinnapapu Rajamanickam (died) ... Appellants Vs.1. P.Sumesh2. The United India Insurance Company Limited, Rep. by its Manager, MO Office, 22-B, 11, Krishnaveni Complex, Pallipalayam, Namakkal District.... RespondentsPrayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988 to enhance the compensation made in the award and judgment in MCOP No.53 of 2017 dated 12.12.2018 on the file of the Special District Judge, Motor Accident Claims Tribunal, Erode.For appellants: Mr.C.KulanthaivelFor Respondent: Mr.J.Chandran, second respondent JUDGMENTPage 1 of 10 https://www.mhc.tn.gov.in/judis CMA.No.2630 of 2021This civil miscellaneous appeal has been filed by the claimants challenging the fixation of contributory negligence as well as seeking enhancement of compensation awarded by the Tribunal in MCOP No.53 of 2017, dated 12.12.2018.2. It is the case of the appellants/claimants that the husband of the first claimant, son of the claimants 2 and 3 was proceeded with his TVS motorcycle on 12.10.2016 on the Pallipalayam to Komarapalayam road and when he approached the Aavathipalayam Arasankadu Bus stop, a car belonging to the first respondent, insured with the second respondent came in the opposite direction and dashed against the two wheeler driven by the deceased. Due to the accident, he was thrown out from the vehicle and sustained grievous injuries and subsequently, he died in the hospital. The claimants filed claim petition seeking compensation of Rs.25,00,000/-.3. The first respondent, owner of the vehicle remained exparte before the Tribunal. The claim petition was resisted only by the second respondent/insurance company by filing counter. The second Page 2 of 10 https://www.mhc.tn.gov.in/judis CMA.No.2630 of 2021respondent claimed that the accident had occurred only due to the negligence on the part of the deceased and sought for dismissal of the claim petition.4. Pending claim petition, the 3rd claimant, father of the deceased died and the claim petition was pursued by the claimants 1 and 2.5. Based on the evidence available on record, the Tribunal came to the conclusion that the accident had occurred in the middle of the road and therefore, both the deceased and the first respondent, who had driven the car were equally responsible for the accidence and fixed 50 % contributory negligence on the part of the deceased. The amount payable to the claimant was quantified at Rs.4,64,250/-, after deducting amount towards contributory negligence. Aggrieved by the same, the claimants have come before this court.6. The learned counsel for the appellant would submit that the Page 3 of 10 https://www.mhc.tn.gov.in/judis CMA.No.2630 of 2021accident had taken place only due to the negligent driving of the first respondent and the Tribunal committed serious error in fixing 50% contributory negligence on the part of the deceased. He further submits that the notional income fixed by the Tribunal at Rs.6,500/- is very much on lower side and the same needs enhancement.7. The learned counsel for the second respondent/ insurance company would submit that the Tribunal, based on the rough sketch Ex.P3, fixed contributory negligence on the part of the deceased and the same is based on proper appreciation of evidence. He further submits that the claimants have not produced any document to substantiate the actual income of the deceased and hence, the Tribunal was justified in fixing a sum of Rs.6,500/- as notional income.8. In order to prove the negligence on the part of the driver of the car, the claimants examined an eye witness to the accident as PW2 and he clearly deposed about the rash and negligent driving of the car belonged to the first respondent. The First Information Report Ex.P1 also proved that the case was registered against the driver of the car. A Page 4 of 10 https://www.mhc.tn.gov.in/judis CMA.No.2630 of 2021perusal of rough sketch Ex.P3 would indicate that the accident had occurred in the middle of the road. Based on Ex.P3, the Tribunal fixed 50% contributory negligence on the part of the deceased. The deceased was driving his two wheeler and the other vehicle involved in the accident is a car owned by the first respondent. The PW2, eye witness to the accident speaks about the rash and negligent driving on the part of the driver of the car. Therefore, the Tribunal was not justified in fixing 50% contributory negligence on the part of the deceased, who had driven a two wheeler. Taking into consideration the entire facts and circumstances of the case, this court is inclined to fix 40% contributory negligence on the part of the deceased and 60% on the part of the driver of the car.9. In the claim petition, it was stated by the claimants that the deceased was employed in courier service and was earning a sum of Rs.12,000/- per month. The employer of the deceased was examined as PW3 and he also produced salary certificate issued to the deceased and the same was marked as Ex.P8. The Tribunal committed a serious error in ignoring the evidence of PW3 merely on the ground that the Page 5 of 10 https://www.mhc.tn.gov.in/judis CMA.No.2630 of 2021attendance register, salary book and other relevant material documents were not produced. Even if there is no other positive evidence to prove the income of the deceased, in the light of the evidence of PW3 and documentary evidence of Ex.P8, this court is inclined to fix income of the deceased at Rs.12,000/- per moth. 10. As per Ex.P6 postmortem certificate, the age of the deceased was 46 years and hence, the Tribunal was right in giving 25% enhancement towards future prospects. The applicable multiplier is 13. There were three persons depending on the deceased at the time of filing claim petition and hence, 1/3 should be deducted towards personal expenses of the deceased. Accordingly, the claimants are entitled to a sum of Rs.15,60,000/- (12,000 x 1.25 x 12 x 13 x 2/3) under the head loss of dependency.11. Apart from the above compensation, the first claimant/ wife is entitled to Rs.40,000/- towards loss of consortium and the second claimant/ mother of the deceased is entitled to Rs.40,000/- towards loss of filial consortium. Further, the claimants are entitled to Rs.15,000/- Page 6 of 10 https://www.mhc.tn.gov.in/judis CMA.No.2630 of 2021each towards loss of estate and funeral expenses. However, the compensation of Rs.10,000/- awarded by the Tribunal towards transport expenses is set aside, as it was covered by the compensation towards loss of estate.12. Accordingly, the compensation awarded by the Tribunal is revised as under:Sl. NoDescriptionAmount awarded by Tribunal (Rs)Amount awarded by this Court (Rs)Award confirmed or enhanced or granted1.Loss of Dependency8,38,50015,60,000enhanced2.Loss of consortium to first claimant40,00040,000confirmed3.Loss of filial consortium to 2nd claimants25,00040,000enhanced4.Loss of estate--15,000granted5.Funeral expenses15,00015,000confirmed6.Transportation charges10,000--set aside Total9,28,500 16,70,000Deduct contributory negligence4,64,250 (50%)6,68,000(40%)Compensation4,64,25010,02,000enhanced by 5,37,750 13. With the above modifications, this Civil Miscellaneous Page 7 of 10 https://www.mhc.tn.gov.in/judis CMA.No.2630 of 2021Appeal is allowed and the compensation awarded by the Tribunal at Rs.4,64,250/- is hereby enhanced to Rs.10,02,200/- together with interest at 7.5% per annum (excluding delay period interest for 340 days on enhanced compensation, as per order in CMP No.10480 of 2021, dated 08.09.2021) from the date of petition till the date of deposit. The appellants are directed to pay the applicable court fees for the enhanced compensation now determined by this court.14. From the above enhanced compensation, the second claimant/ mother of the deceased is entitled to Rs.2,25,000/- towards her share and the first claimant/wife of the deceased is entitled to the remaining compensation amount as her share.15. The second respondent/insurance company is directed to deposit the compensation amount now determined by this Court, 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 claimants shall be permitted to withdraw their respective shares along with interest and costs, less the amount if any, already withdrawn, by making formal application before the Tribunal.Page 8 of 10 https://www.mhc.tn.gov.in/judis CMA.No.2630 of 2021There shall be no order as to costs.12.03.2025Index:Yes/NoSpeaking order: Yes/NoNeutral citation : Yes/NomstTo1. The Special District Judge, Motor Accident Claims Tribunal, Erode.2. The Section Officer, V.R.Section, Madras High Court.Page 9 of 10 https://www.mhc.tn.gov.in/judis CMA.No.2630 of 2021S.SOUNTHAR, J.mstCMA No.2630 of 202112.03.2025 Page 10 of 10