Madras High CourtMeena vs Baskaran on 28 July, 2023C.M.A. No.284 of 2022\n\n                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\n                                                  DATED: 28.07.2023\n\n                                                      CORAM :\n\n                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN\n\n                                                 C.M.A.No.284 of 2022\n\n                  1.Meena\n                  2.Minor Kanishka\n                  3.Minor Sabarivasan\n                  4.Minor Sunmathi\n                  5.Jayamani                ..                                     Appellants\n\n                                            Vs.\n\n                  1.Baskaran\n\n                  2. The Divisional Manager\n                  Divisional Office,\n                  New India Assurance Co. Ltd.,\n                  Office situated at Amman Complex,\n                  Mettur Road, Erode – 638 011.     ..                           Respondents\n\n\n                  Prayer: This Civil Miscellaneous Appeal is filed underSection 173of Motor\n                  Vehicles Act, 1988, against the judgment and decree dated 30.03.2031 passed\n                  in MCOP No.602 of 2018 on the file of Motor Accident Claims Tribunal,\n                  Special District Court at Erode District.\n\n\n                  _____\n                  1/14\n\n\n\nhttps://www.mhc.tn.gov.in/judis\n                                  C.M.A. No.284 of 2022\n\n\n\n\n                  _____\n                  2/14\n\n\n\nhttps://www.mhc.tn.gov.in/judis\n                                                                           C.M.A. No.284 of 2022\n\n\n\n                                  For Appellants   : Mr.Ma.P.Thangavel\n\n                                  For Respondents : No appearance for R1\n                                               Mrs.R.Sreevidhya for R2\n\n                                       JUDGMENTThis Civil Miscellaneous Appeal has been filed by the appellants\n\n                  challenging the award dated 30.03.2031 passed in MCOP No.602 of 2018 on\n\n                  the file of Motor Accident Claims Tribunal, Special District Court at Erode\n\n                  District.2. The appellants filed MCOP No.602 of 2018 on the file of Motor\n\n                  Accident Claims Tribunal, Special District Court at Erode District claiming a\n\n                  sum of Rs.30,00,000/- as compensation for the death of one Murugesan who\n\n                  died in the accident that took place on 01.02.2018.3. According to the appellants, on 01.02.2018, while the deceased\n\n                  Murugesan was riding his TVS XL bearing Regn.No.TN39 BW 0816\n\n                  alongwith his friend as pillion rider, on the Avinashi to Karumathampatty\n\n\n                  _____3/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 2022Road, near Thekkalur Santhai from East to West direction, the 1st respondent\n\n                  rode his bike bearing Regn.No.TN37 BY 4340 in a rash and negligent manner\n\n                  in the same direction and hit against the deceased motorcycle. Due to the\n\n                  sudden hit, both the rider as well as the pillion rider of the motorcycle were\n\n                  thrown away and sustained multiple grievous injuries all over their bodies.\n\n                  Inspite of treatment, the said Murugesan died on 02.02.2018 and hence the\n\n                  appellants filed the claim petition claiming compensation against the\n\n                  respondents.4. The 1st respondent remained exparte before the Tribunal.5. The 2nd respondent filed counter statement denying the averments\n\n                  made in the claim petition including the manner of accident.       The deceased\n\n                  alone rode the motorcycle under the influence of alcohol in a rash and\n\n                  negligent manner and caused the accident. The deceased did not wear helmet\n\n                  at the time of accident and thereby violated the policy conditions.          The\n\n                  appellant has not impleaded the owner and insurer of the TVS XL and hence\n\n\n                  _____4/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 2022the claim petition is bad for non-joinder of necessary parties.        The 2nd\n\n                  respondent denied the age, avocation and income of the deceased. The total\n\n                  compensation claimed by the appellants is excessive and prayed for dismissal\n\n                  of the claim petition.6. Before the Tribunal, the 1st appellant examined herself as PW1 and\n\n                  one Gurusamy, eye-witness to the accident was examined as PW2.             Nine\n\n                  documents were marked as Exs.P.1 to Exs.P.9.             On the side of the\n\n                  respondents, Dr.V.Balaji was examined as RW1 and Accident Register was\n\n                  marked as Ex.R1.7. The Tribunal after considering the evidence and documents filed on\n\n                  the side of the appellants as well as respondents, held that the accident\n\n                  occurred due to the rash and negligent riding by the rider of the bike bearing\n\n                  Regn.No.TN37 BY 4340, fixed 75% negligence on the part of the rider of the\n\n                  bike and 25% on the deceased, rider of the TVS XL bearing Regn.No.TN39\n\n                  BW 0816 for not possessing valid licence and not wearing helmet at the time\n\n\n                  _____5/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 2022of accident. The Tribunal directed the 2nd respondent / Insurance company to\n\n                  pay 75% of the award amount, i.e. Rs. 15,90,000/- as compensation to the\n\n                  appellants.8. Challenging the award of the Tribunal fixing 25% negligence on the\n\n                  part of deceased, the appellants have filed the instant appeal.9. The learned counsel appearing for the appellants submitted that the\n\n                  Tribunal erred in fixing the negligence on the deceased at 15% for not wearing\n\n                  helmet and 10% for not possessing valid driving licence at the time of accident\n\n                  in the absence of any evidence let in by the second respondent/insurance\n\n                  company to prove the same. The learned counsel further submitted that the\n\n                  manner of accident would go to show that no contributory negligence can be\n\n                  fixed for not possessing valid driving licence at the time of accident. The\n\n                  Tribunal having found that the accident occurred only due to the negligence of\n\n                  the offending vehicle which is also a two-wheeler, erred in fixing contributory\n\n                  negligence on the deceased. The Tribunal erred in fixing the notional income\n\n\n                  _____6/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 2022of the deceased as Rs.10,000/- per month when the appellants have claimed\n\n                  that the deceased was working in a power loom.          The accident had taken\n\n                  place in the year 2017 and the Tribunal ought to have fixed Rs.15,000/- per\n\n                  month as notional income of the deceased and prayed for enhancement of\n\n                  compensation. The learned counsel fairly submitted that the compensation\n\n                  awarded under other heads are just10. Per contra, the learned counsel for the 2nd respondent / Insurance\n\n                  Company contended that the Hon'ble Apex Court and this Court had\n\n                  consistently taken a view for non-possession of driving licence and not\n\n                  wearing helmet, 20% contributory negligence would be just and reasonable.\n\n                  The learned counsel further submitted that the appellants failed to prove that\n\n                  the avocation and income of the deceased. In the absence of any documentary\n\n                  evidence, the notional income fixed by the Tribunal at Rs.10,000/- per month\n\n                  is not meagre and prayed for dismissal of the appeal.11. Though notice has been served on the first respondent and his name\n\n\n                  _____7/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 2022has been printed in the cause list, there is no representation for him either in\n\n                  person or through counsel.12. Heard the learned counsel appearing for the appellants as well as 2 nd\n\n                  respondent and perused the materials available on record.13. The questions involved in the instant appeal are -(i) whether the Tribunal is right in fixing 25% contributory\n                                  negligence on the part of the deceased ;(ii) whether the quantum of compensation awarded by the Tribunal\n                                  is just and reasonable.14 (i). As regards the first question, from the materials on record, it is\n\n                  seen that the deceased did not possess valid driving licence at the time of\n\n                  accident. Admittedly, he did not wear helmet at the time of accident. Though\n\n                  it is seen from Ex.R1-Accident Register that the deceased smelt of alcohol,\n\n                  there is no evidence to suggest that he was under the influence of alcohol.\n\n                  Considering the facts and circumstances of the case and the view taken by the\n\n\n                  _____8/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 2022Hon'ble Apex Court and this Court in number of cases, this Court is of the\n\n                  view that it would be reasonable to fix 20% contributory negligence on the\n\n                  deceased for not possessing driving licence and not wearing helmet at the time\n\n                  of accident._____9/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 202214 (ii) In so far as the quantum of compensation is concerned, it is seen\n\n                  that the only dispute is with regard to the notional income fixed by the\n\n                  Tribunal. The accident took place in the year 2018. The appellants have\n\n                  established the avocation of the deceased who was survived by his wife, three\n\n                  minor children and his mother. Considering the age and avocation of the\n\n                  deceased, cost inflation index and the year of accident, this court is of the\n\n                  view that it would be reasonable to fix the notional income of the deceased as\n\n                  Rs.14,000/- per month. The deceased was aged 36 years at the time of\n\n                  accident. The multiplier applicable is 15. There are four dependents of the\n\n                  deceased. By applying multiplier 15, adding 40% towards future prospects\n\n                  and deducting 1/4th         towards personal expenses of the deceased, the\n\n                  compensation under the head loss of income is calculated as follows -14,000 +    5600 (14000 x 40%) x 12 x 15 x ¾ = 26,46,000/-\n\n\n\n                            Thus, the compensation awarded by the Tribunal is enhanced from\n\n\n                  _____10/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 2022Rs.21,20,000/- to Rs.28,76,000/-, break-up as follows -Sl. Description                 Amount         Amount            Award\n                         No                             awarded by    awarded by       confirmed or\n                                                         Tribunal      this Court      enhanced or\n                                                           (Rs)           (Rs)           granted\n                         1.       Loss of income        18,90,000/-   26,46,000/-        Enhanced\n                         2.       Funeral expenses       15,000/-      15,000/-         Confirmed\n                         3.       Damages to clothes     15,000/-      15,000/-         Confirmed\n                         4.       Loss of consortium     40,000/-      40,000/-         Confirmed\n                         5.       Parental Consortium   1,20,000/-    1,20,000/-        Confirmed\n                         6.       Filial Consortium      40,000/-      40,000/-         Confirmed\n                                         Total          21,20,000/-   28,76,000/-\n                                  Less: Contributory     5,30,000/-    5,75,200/-\n                                  negligence fixed        (25%)         (20%)\n                                  on the deceased\n                                  Net compensation      15,90,000/-   23,00,800/-     Enhanced by\n                                   payable to the                                      Rs.7,10,800/-\n                                      appellantsThe interest awarded by the Tribunal @ 9% is hereby reduced to 7.5%\n\n                  per annum.15. In the result, this Civil Miscellaneous Appeal is partly allowed and\n\n\n                  _____11/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 2022the compensation awarded by the Tribunal at Rs.21,20,000/- is hereby\n\n                  enhanced to Rs.28,76,000/- together with interest at 7.5% per annum\n\n                  (excluding the default period if any) from the date of petition till the date of\n\n                  deposit. The second respondent/Insurance Company is directed to deposit\n\n                  Rs.23,00,800/-, being 80% of the award amount (after deducting 20%\n\n                  contributory negligence on the part of the deceased) along with proportionate\n\n                  interest and costs, less the amount already deposited, if any, within a period of\n\n                  six (6) weeks from the date of a receipt of copy of this Judgment. On such\n\n                  deposit, the appellants 1 & 5 are permitted to withdraw their share of the\n\n                  award amount, on the basis of apportionment fixed by the Tribunal, along\n\n                  with proportionate interest and costs, less the amount if any, already\n\n                  withdrawn. The share of the minor appellants 2 to 4 are directed to be\n\n                  deposited in any one of the Nationalised Bank, till the minors attain majority.\n\n                  However, the 1st appellant, mother of the minor appellants is permitted to\n\n                  withdraw the accrued interest, once in three months. The appellants are\n\n                  directed to pay necessary court fee on the enhanced amount if any. No costs.\n\n\n\n\n                  _____12/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 202226.07.2023\n                  rgr\n                  Index: Yes/No\n                  Speaking Order / Non-Speaking Order\n                  Neutral Citation: Yes / No\n\n                                                         SUNDER MOHAN, J\n                                                                             rgr\n\n\n                  To1. The Special District Judge,\n                  Motor Accident Claims Tribunal,\n                  Erode District.2. The Section Officer,\n                  VR Section,\n                  High Court,\n                  Madras.C.M.A. No.284 of 2022Dated: 28.07.2023\n\n                  _____13/14https://www.mhc.tn.gov.in/judisC.M.A. No.284 of 2022_____14/14https://www.mhc.tn.gov.in/judis