The Divisional Manager v. Geetharani

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 12.03.2021

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.No.3008 of 2019 and C.M.P.No.16252 of 2019 The Divisional Manager, IFFCO-TOKIO General Insurance Company Limited, Puducherry.

.. Appellant/R2 Vs.

1.Geetharani 2.Minor. Ananth 3.Minor. Parthiban 4.Minor. Charanshree ..R1 to 4/Petitioners (Minor respondents 2 to 4 are represented by their Mother, Geetharani, 1st respondent herein) 5.Chandrasekaran ..R5/R1 Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated 24.01.2019 made in M.C.O.P.No.332 of 2017 on the file of the Motor Accidents Claims Tribunal, III Additional District Judge (FAC), Puducherry.

For Appellant : Mr.S.Arunkumar For RR 1 to 4 : Mr.T.Ananthasekar For R5 : No appearance

J U D G M E N T

The matter is heard through "Video Conferencing/Hybrid mode". 2.This Civil Miscellaneous Appeal has been filed to set aside the award dated 24.01.2019 made in M.C.O.P.No.332 of 2017 on the file of the Motor Accidents Claims Tribunal, III Additional District Judge (FAC), Puducherry.

3.The appellant is the 2nd respondent in M.C.O.P.No.332 of 2017 on the file of the Motor Accidents Claims Tribunal, III Additional District Judge (FAC), Puducherry. The respondents 1 to 4 filed the said claim petition, claiming a sum of

Rs.56,00,000/- as compensation for the death of one Karthikeyan, who died in the accident that took place on 19.03.2017. 4.According to respondents 1 to 4, on 19.03.2017 at about 05.30 A.M., while the deceased Karthikeyan was driving the motorcycle bearing Registration No.PY 01 AZ 2628 along with his wife and minor.Thabithal as pillion riders on the extreme left side of the Villianur bye pass road from West to East direction, opposite to R.K.R. Blue Metal Shop, Villianur, the 5th respondent who was driving the motorcycle bearing Registration No.PY 01 BX 5591 owned by himself, drove the motorcycle at a high speed in a rash and negligent manner without blowing horn and without any indication, came from the East to West direction and dashed against the motorcycle driven by the said Karthikeyan and caused the accident.

In the accident, the said Karthikeyan and the pillion riders were thrown away from the motorcycle. After the accident, the said Karthikeyan was taken to G.H.Kathirkamam, Pondicherry for first aid treatment and thereafter he was referred to JIPMER Hospital, Pondicherry. Inspite of treatment, the said Karthikeyan succumbed to injuries on the same day. Therefore, the respondents 1 to 4 filed the said claim petition claiming a sum of Rs.56,00,000/- as compensation against the 5th respondent and appellant-Insurance Company, being the owner and insurer of the motorcycle bearing Registration No.PY 01 BX 5591 respectively.

5.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident has occurred only due to rash and negligent driving by the rider of the motorcycle bearing Registration No.PY 01 BX 5591 and fixed 10% contributory negligence on the part of the deceased for not wearing helmet at the time of accident, awarded a sum of Rs.15,40,000/- and directed the appellant to pay a sum of Rs.13,86,000/- being 90% of the award amount as compensation to the respondents 1 to 4. 6.To set aside the said award dated 24.01.2019 made in M.C.O.P.No.332 of 2017, the appellant has come out with the present appeal.

7.Though the appellant has raised grounds with regard to negligence, at the time of arguments, the learned counsel appearing for the appellant restricted his arguments only with regard to quantum of compensation and contended that the respondents 1 to 4 failed to prove the avocation and income of the deceased. In the absence of any material evidence with regard to avocation and income, the Tribunal fixed excessive amount of Rs.8,000/- per month as notional income of the deceased. The compensation awarded by the Tribunal towards loss of love and affection to respondents 2 to 4 at Rs.3,00,000/- is excessive. The total compensation awarded by the Tribunal is

highly excessive and prayed for setting aside the award passed by the Tribunal.

8.Per contra, the learned counsel appearing for the respondents 1 to 4 contended that the deceased was a Sofa Lining Worker in Bahrain and was earning a sum of Rs.50,000/- per month. The Tribunal erroneously fixed a meagre amount of Rs.8,000/- per month as notional income of the deceased and awarded lesser amount as compensation for loss of dependency. In view of the same, the total compensation awarded by the Tribunal is not excessive and prayed for dismissal of the appeal. 9.Though notice has been served on the 5th respondent and his name is printed in the cause list, there is no representation for him, either in person or through counsel. 10.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents 1 to 4 and perused the entire materials on record.

11.It is the case of the respondents 1 to 4 that the deceased was a Sofa Lining Worker in Bahrain, aged 45 years and was earning a sum of Rs.50,000/- per month at the time of accident. Except filing Ex.P11/passport of the deceased, the respondents 1 to 4 have not filed any document with regard to avocation and income of the deceased. In the absence of any material evidence with regard to avocation and income, the Tribunal fixed a sum of Rs.8,000/- per month as notional income of the deceased. The accident occurred in the year 2017 and the notional income fixed by the Tribunal is meagre. In view of the same, the excess amount of Rs.3,00,000/- awarded by the Tribunal towards loss of love and affection to respondents 2 to 4 is not interfered with. The Tribunal considering the entire materials on record, has awarded a sum of Rs.13,86,000/- as compensation to the respondents 1 to 4, which is not excessive warranting interference by this Court.

12.In the result, this Civil Miscellaneous Appeal is dismissed and a sum of Rs.15,40,000/- awarded by the Tribunal as total compensation to the respondents 1 to 4, along with interest and costs is confirmed. The appellant-Insurance Company is directed to deposit 90% of the award amount, i.e., Rs.13,86,000/- along with interest and costs, less the amount if any already deposited, within a period of six weeks from the date of receipt of a copy of this judgment to the credit of M.C.O.P.No.332 of 2017 on the file of the Motor Accidents Claims Tribunal, III Additional District Judge (FAC), Puducherry. On such deposit, the 1st respondent is permitted to withdraw her respective share of the award amount as per the ratio of apportionment fixed by the Tribunal along with proportionate

interest and costs after adjusting the amount, if any already withdrawn, by filing necessary applications before the Tribunal. The share of the minor respondents 2 to 4 is directed to be deposited in any one of the Nationalized Banks, till the minor respondents 2 to 4 attain majority. On such deposit, the 1st respondent, being the Mother of the minor respondents 2 to 4 is permitted to withdraw the accrued interest once in three months for the welfare of the minor respondents 2 to 4. Consequently, the connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar krk To 1.The III Additional District Judge (FAC), Motor Accidents Claims Tribunal, Puducherry.

2.The Section Officer, VR Section, High Court, Madras.

+1cc to Mr.S.Arunkumar, Advocate Sr No.16063 C.M.A.No.3008 of 2019 KV (CO) PR (09/11/2021)