Appeals by claimants seeking enhancement of compensation in motor accident deaths. Court enhanced loss of dependency and consortium awards, confirming 15% contributory negligence for helmet violation and applying CBDT inflation index to fix notional income.
Compensation enhanced to Rs.21,74,980/- and Rs.5,84,080/- with interest @ 7.5% p.a.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.M.A. Nos. 1748 and 1749 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2024
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
C.M.A. Nos. 1748 and 1749 of 2021
C.M.A. No. 1748 of 2021
Kalamani ... Appellant / Petitioner
Vs.
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and decree dated 17.02.2021 passed in M.C.O.P. No. 1292 of 2019 on the file of the Special District Judge, MCOP Tribunal, Salem.
C.M.A. Nos. 1748 and 1749 of 2021
C.M.A. No. 1749 of 2021
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and decree dated 17.02.2021 passed in M.C.O.P. No. 1294 of 2019 on the file of the Special District Judge, MCOP Tribunal, Salem.
For Appellant : M/s. M. Guruprasad For R1 : Dispensed With For R2 : M/s. S. Vadivel ******
JUDGMENT
These Civil Miscellaneous appeals have been filed by the claimants
seeking enhancement of compensation awarded in M.C.O.P. Nos. 1792 and
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1794 of 2019, dated 17.02.2021 on the file of the Special District Judge, M.C.O.P. Tribunal, Salem.
with his son Dharani as a pillioner was riding a two wheeler bearing Registration No.TN-33-K-6919 on Salem – Coimbatore National Highway, inorder to cross the highway road, he stopped the two wheeler at an inter junction near JKKN College, Vattamalai, at that time, a Mini Lorry bearing Registration No.TN-66-S-2589, driven by its driver in a rash and negligent manner, dashed against the two wheeler of the deceased Sekar and caused instant death to both the rider and the pillion rider. A criminal case was registered against the driver of the Mini Lorry in Cr.No.187/2019 U/s. 279, 304(A) of IPC on the file of Komarapalayam Police Station. For the loss of both Sekar and his Dharani, dependants of both deceased have filed separate claim petitions claiming compensation for a sum of Rs.48,00,000/- and
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Rs.25,00,000/-, respectively by invoking section 166 of the Motor Vehicles Act, 1988.
has fixed the contributory negligence of 30% on the part of the deceased Sekar for not wearing helmet and not possessing a valid driving licence and 15% on the part of the deceased Dharani for not wearing helmet at the time of accident. The Tribunal has also quantified and granted compensation for
C.M.A. Nos. 1748 and 1749 of 2021
a sum of Rs.11,28,400/- and Rs.5,44,080/- for the loss of deceased Sekar and deceased Dharani, respectively along with interest @ 7.5% per annum from the date of filing of petition till the date of realization.
the Tribunal based on the evidence placed on record has rightly fixed the contributory negligence on both the deceased Sekar as well as deceased Dharani and the Tribunal has also awarded a 'Just' compensation and prays
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to confirm the award.
perused the materials available on record.
deceased Sekar was not having a valid driving licence and both the deceased were not wearing safety helmet at the time of accident. In the
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evidence of P.W.1, even though she has denied that the deceased was not
wearing helmet, it is admitted that the injuries noted in the postmortem certificates of both the deceased, shows that they have sustained head injuries, hence this evidence is sufficient to held that both the deceased were not wearing helment at the time of accident and due to which, they sustained head injuries, which resulted in causing instant death. This Court in C.M.A.(MD). No. 987 and 988 of 2014 dated 13.02.2017, Branch Manager (Oriental Insurance Company Limited) vs. Indirani and others
has held in paragraph 11 and 12 as follows:
“11. Without wearing a helmet, no rider can drive the two wheeler and as per Section 129 of the Motor Vehicles Act, 1988, it is mandatory. Section 129 of the Motor Vehicles Act, 1988, is usefully extracted hereunder:
" 129. Wearing of protective headgear.- Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear [protective headgear conforming to the standards of Bureau of Indian Standards]:
Provide that the provisions of this section shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban:
Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.
Explantion.- "Protective headgear"means a helmet
C.M.A. Nos. 1748 and 1749 of 2021
which,-
(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the even of an accident; and
(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear."
12. This Court has elaborately dealt with the instances of wearing of helmet by quoting the details of death cases due to non-wearing of helmet in R. Mallika and others vs. A. Babu and others [C.M.A.No.3235 of 2014,decided on 08.06.2015] and therefore, 15% negligence has to be fixed on the rider of the two wheeler for not wearing the helmet and accordingly, 15% negligence is fixed on the rider of the two wheeler.”
non wearing of helmet is termed as contributory negligence, accordingly,
15% contributory negligence is fixed on the part of both the deceased.
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Court in
Court in Andal and others vs. Avinav Kannan and others [2019 (1) TN
MAC 54 (DB)] has laid down guidelines for fixing the notional income of various categories of persons whose income has not been proved and based on cost of index filed by CBDT, the notional income was permitted to be fixed, based on Apex Court judgement of Syed Sadiq Vs. United India Insurance Company [2014 (1) TNMAC 459], held in paragraph nos.11, 12, 13 and 14 as follows:
"11. However, the Tribunal had accepted the views, principles and the method of income arrived by the Apex Court in Syed Sadiq Vs. United India Insurance Company, reported in 2014 (1) TNMAC 459 case. In the said case the Hon'ble Apex Court fixed the monthly notional income at Rs.6,500/- for a vegetable vendor, who sustained injuries in the accident which occurred in the year 2008. The Tribunal also took the same figure of Rs.6,500/- for the deceased who met with accident and died during the year 2014. However, the Tribunal failed to consider that the accident occurred during the year 2014 and other factors as mentioned below before fixing the monthly salary of the deceased.
(i) The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families.
(ii) The salaries of those employed under the Central
C.M.A. Nos. 1748 and 1749 of 2021
and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.
(iii) Although, the wages/income of those employed in unorganised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhacement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour.
"12. Therefore it is just and necessary to increase the notional income of Rs.6,500/- fixed by the Hon'ble Apex Court during the year 2008 corresponding to the cost of living, prices of the essentials and inflation. Hence to determine the notional income of the deceased who was working as a daily wager in "The Ark Chicken Mutton Corner" in the year 2014, we decided to apply the cost of inflation index as issued by the Central Board of Direct Tax (CBDT) for the purpose of determination of notional income of the deceased person.
13. The CBDT vide Notification No.370142 (E)
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(No.26/2008) (F.No.370/42/3/2008-TPL) dated 13.06.2008 specifies the cost of inflation index as mentioned in column No.3, for the financial year mentioned in the corresponding entry in column No.2 in the below said tabular column:-
| S.No. | Financial Year | Cost of Inflation Index |
|---|---|---|
| 1 | 2001-2002 | 100 |
| 2 | 2002-2003 | 105 |
| 3 | 2003-2004 | 109 |
| 4 | 2004-2005 | 113 |
| 5 | 2005-2006 | 117 |
| 6 | 2006-2007 | 122 |
| 7 | 2007-2008 | 129 |
| 8 | 2008-2009 | 137 |
| 9 | 2009-2010 | 148 |
| 10 | 2010-2011 | 167 |
| 11 | 2011-2012 | 184 |
| 12 | 2012-2013 | 200 |
| 13 | 2013-2014 | 220 |
| 14 | 2014-2015 | 240 |
| 15 | 2015-2016 | 254 |
| 16 | 2016-2017 | 264 |
| 17 | 2017-2018 | 272 |
| 18 | 2018-2019 | 280 |
14. As per the above said index, the cost of inflation index for the year as 2007-2008 is 129 and for the year 20132014 will be 220. Now we determine the notional income of the deceased in the manner stated below:-
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The notional income fixed Cost of Inflation Index by the Hon'ble Supreme X for the vegetable Court of India (i.e., vendor for the year Rs.6,500/-) 2013-2014
129
i.e., (Rs.6,500/- X 220)/ 129 = Rs.11,085/-(notional income of the deceased)"
14. Based on the above observation, this Court is inclined to
modify the notional monthly income of the deceased to Rs.14,100/-. The Tribunal by following the dictum as laid down in National Insurance Co. Ltd., vs. Pranay Sethi and other [2017(2) TN MAC 609 (SC): 2017 (16) SCC 680], fixed 40% as future prospectus and as per Sarla Verma and others Vs. Delhi Transport Corporation and others [2009 ACJ 1298 SC : 2009 (6) SCC 121] , the multiplier is fixed as '15' by considering the age of the deceased at the time of the accident, hence this Court finds no infirmity in the above fixing of future prospectus and multiplier adopted by the Tribunal and confirms the same. Based on the number of dependants, onethird is deducted from his monthly income towards personal and living expenses, accordingly, the compensation under loss of income with modified monthly notional income of Rs.14,100/-is assessed as follows:
Annual income (Rs.14,100/- x 12) = Rs.1,69,200/-
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Future prospects @ 40% = Rs.67,680/Yearly income of the deceased = Rs.2,36,880/Yearly contribution to his family(after deducting 1/3) = Rs.1,57,920/Applicable Multiplier = 15 Total compensation (Rs.1,57,920/- x 15) = Rs.23,68,800/-
consortium, as per the Hon'ble Apex Court in Magma General Insurance Co. Ltd., vs Nanu Ram [2018 ACJ 2018], all the claimants are entitled for consortium. Accordingly, this Court is inclined to grant Rs.40,000/- to each of the claimants, who are the wife and children of the deceased Sekar. Whereas the other conventional heads are concerned, the Tribunal has awarded just compensation and this Court is inclined to confirm the same.
heads are hereby modified as follows:
| S. No |
Description | Amount awarded by Tribunal (Rs) |
Amount awarded by this Court (Rs) |
Award confirmed or enhanced or reduced |
|---|---|---|---|---|
| 1. | Loss of dependency (after deducting contributory negligence @ 30%) |
10,58,400/- | 23,68,800/- | Enhanced |
| 2. | loss of consortium | 40,000/- | 1,60,000/- | Enhanced |
| 3. | Loss of estate | 15,000/- | 15,000/- | Confirmed |
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S.
No
| S. No |
Description | Amount awarded by Tribunal (Rs) |
Amount awarded by this Court (Rs) |
Award confirmed or enhanced or reduced |
|---|---|---|---|---|
| 4. | Funeral expenses | 15,000/- | 15,000/- | Confirmed |
| Total | 11,28,400/- | 25,58,800/- | Enhanced | |
| Contributory negligence @ 15% (modified) |
--- | 3,83,820/- | ||
| Total Compensation | 11,28,400/- | 21,74,980/- | Enhanced |
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Accordingly, this Court is inclined to grant Rs.40,000/- to the claimant, who
is the mother of the deceased Dharani.
18. Accordingly, the award passed by the Tribunal under various
heads are hereby modified as follows:
| S. No |
Description | Amount awarded by Tribunal (Rs) |
Amount awarded by this Court (Rs) |
Award confirmed or enhanced or reduced |
|---|---|---|---|---|
| 1. | Loss of dependency (after deducting contributory negligence @ 15%) |
5,14,080/- | 5,14,080/- | Confirmed |
| 2. | Loss of estate | 15,000/- | 15,000/- | Confirmed |
| 3. | Funeral expenses | 15,000/- | 15,000/- | Confirmed |
| 4. | Loss of consortium | --- | 40,000/- | Granted |
| Total Compensation | 5,44,080/- | 5,84,080/- | Enhanced |
Twenty One Lakh Seventy Four Thousand Nine Hundred and Eighty
only] and in C.M.A.No.1748 of 2021, the compensation awarded by the
Tribunal at Rs.5,44,080/- is hereby enhanced to Rs.5,84,080/- [Rupees Five
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Lakh Eighty Four Thousand and Eighty only] together along with interest at the rate of 7.5% per annum from the date of filing of Claim Petition till the date of deposit, excluding the default period, if any. The second respondent - Insurance Company is directed to deposit the amount awarded 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 to the credit of M.C.O.P.Nos.1292 and 1294 of 2019 on the file of the Special District Judge, Motor Accidents Claims Tribunal, Salem. On such deposit, the appellants/ claimants are permitted to withdraw the award amount now determined by this Court along with interest and costs, less the amount if any, already withdrawn, as per the apportionment fixed by the Tribunal. The Tribunal shall disburse the amount now awarded by this Court by directly giving credit to the Savings Bank Account of the claimants. Since this Court has enhanced the compensation, the appellants/claimants are directed to pay the necessary Court fee, if any, on the enhanced compensation. There shall be no order as to costs in the present appeal.
09.02.2024
stn Index:Yes/No
C.M.A. Nos. 1748 and 1749 of 2021
Speaking Order:Yes/No Neutral Citation Case: Yes/No
To:
C.M.A. Nos. 1748 and 1749 of 2021
K. RAJASEKAR, J.
stn
C.M.A. Nos. 1748 and 1749 of 2021
09.02.2024
3 issues framed by the court
Whether the Tribunal erred in enhancing notional income based on inflation index and fixing future prospects.
Whether non-wearing of helmet constitutes contributory negligence warranting reduction in compensation.
Whether compensation for loss of consortium is payable to claimants.
Colour shows how this judgement treated each authority
Branch Manager (Oriental Insurance Company Limited) vs. Indirani and othersReferred¶56
C.M.A.(MD). No. 987 and 988 of 2014 dated 13.02.2017, Branch Manager (Oriental Insurance Company Limited) vs. Indirani and others
R. Mallika and others vs. A. Babu and othersReferred¶57
R. Mallika and others vs. A. Babu and others [C.M.A.No.3235 of 2014,decided on 08.06.2015]
Andal and others vs. Avinav Kannan and othersReferred¶77
Andal and others vs. Avinav Kannan and others [2019 (1) TN MAC 54 (DB)]
Syed Sadiq Vs. United India Insurance CompanyRelied on¶78
Syed Sadiq Vs. United India Insurance Company [2014 (1) TNMAC 459]
National Insurance Co. Ltd., vs. Pranay Sethi and otherReferred¶99
National Insurance Co. Ltd., vs. Pranay Sethi and other [2017(2) TN MAC 609 (SC): 2017 (16) SCC 680] · Who else cites this
Sarla Verma and others Vs. Delhi Transport Corporation and othersReferred¶99
Sarla Verma and others Vs. Delhi Transport Corporation and others [2009 ACJ 1298 SC : 2009 (6) SCC 121] · Who else cites this
Magma General Insurance Co. Ltd., vs Nanu RamRelied on¶105
Magma General Insurance Co. Ltd., vs Nanu Ram [2018 ACJ 2018]
3 provisions across 1 enactments
Kalamani
M.I. Mansoor
M/s. National Insurance Co. Ltd.
Minor Surya
Minor Maikalraj
Minor Neela
K. RAJASEKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
K. RAJASEKAR
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