Allowed

Mylathal, v. G.Vijayalakshmi

Madras HC30 Aug 2024CMA(MD)/304/2021

Case brief

AI extract

What is this about?

The High Court set aside the Motor Accident Claims Tribunal's finding of exclusive negligence on the deceased. The court determined 50:50 liability, recalculated compensation based on a Rs.10,000 monthly income and a multiplier of 5, and awarded Rs.2,75,000 to the claimants after deducting contributory negligence.

What did the court decide?

The claim was allowed; liability fixed at 50:50; compensation fixed at Rs.2,75,000 with interest at 7.5% per annum to be deposited by the insurance company.

Mylathal, Vs G.Vijayalakshmi — Insurance | Madras HC (2024)

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C.M.A(MD)No.304 of 2021

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Reserved on : 29.07.2024

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Pronounced on : 30.08.2024

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CORAM

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THE HONOURABLE MR.JUSTICE G.ILANGOVAN

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C.M.A(MD)No.304 of 2021

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1.Mylathal

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2.N.Sakthivel

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3.N.Loganayakee ... Appellants / Petitioners

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Vs.

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1.G.Vijayalakshmi

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2.The Branch Manager, The New India Assurance Company Ltd., Micro Office, 1st Floor, C.V.Complex, Kannankurichi - 636 008, Mittiyam Petunampatty Village, Salem District, Tamil Nadu. ... Respondents / Respondents

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PRAYER :-

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This Civil Miscellaneous Appeal is filed under Section 173 Motor vehicles Act to set aside the judgment and decree dated 04.01.2020 passed in M.A.C.O.P.No.2/2017 on the file of learned Motor Accident Claims Tribunal cum Subordinate Court, Vedasandur.

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https://www.mhc.tn.gov.in/judis

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For Appellants : Mr.R.Senthilkumar For R1 : No appearance For R2 : Mr.C.Deepak

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C.M.A(MD)No.304 of 2021

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JUDGMENT

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This Civil Miscellaneous Appeal is filed to set aside the judgment and decree dated 04.01.2020 passed in M.A.C.O.P.No.2/2017 on the file of learned Motor Accident Claims Tribunal cum Subordinate Court, Vedasandur.

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The case of the prosecution is that on 06.09.2016, at about 6.30 a.m.,

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the deceased Nachimuthu was riding a two wheeler bearing registration number TN 59 AQ 1596 along with one A.Perumal as a pillion rider on the Karur to Dindigul National Highways. When they were nearing the place of occurrence, namely Surya mill, a Maruti Swift car bearing registration number TN 52 Y 2877 which belongs to the first respondent in the main petition drove the same in a rash and negligent manner and hit the two wheeler. As a result of which, the deceased Nachimuthu and the pillion rider Perumal sustained grievous injuries. They were taken to the Government Hospital,

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)No.304 of 2021

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Dindigul. But Nachimuthu died on 06.09.2016 without responding to the

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treatment. A case in Crime No.142 of 2016 was registered against the appellant vehicle driver. The deceased was aged about 65 years at the time of accident and earning Rs.12,000/- per month by doing agriculture coolie work. Claiming compensation amount of Rs.30 Lakhs, the claim petition was filed.

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That was resisted by the insurance company by filing counter, stating that the deceased Nachimuthu was not owning proper driving license. Without licence to drive, he drove the same in a rash and negligent manner and invited the accident. A case was registered only against the deceased. It was closed as action dropped after investigation. Other customary denials were made.

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Regarding the first aspect of negligence, the Tribunal recorded a finding that the occurrence took place because of the rash and negligent driving on the part of the deceased himself. So the claimants are not entitled for any compensation. Against which this Civil Miscellaneous Appeal is preferred by the claimants.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)No.304 of 2021

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Learned counsel for the appellant would submit that the Tribunal recorded a wrong finding regarding the occurrence. The nature of the accident does itself indicates that the rash and negligent driving on the part of the first respondent vehicle driver. Simply because a case was registered against the deceased by the appellant, it do not indicate that there was negligence.

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To answer this issue, the records were called for. There is no evidence on record to show that independent witnesses was examined on the side of the claimant, to show the occurrence. P.W.1 is not the eye witness to the occurrence. Similarly, on the side of the insurance company also, no independent witness was examined. R.W.1 who is the investigation officer has spoken about the investigation particulars. R.W.2 is the official of the insurance company who is also not a competent witness to speak the occurrence. In the absence of any direct evidence on the occurrence, based upon the investigation done by the police, negligence has been fixed upon the deceased.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)No.304 of 2021

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As per the FIR, the deceased was riding his two wheeler from South

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to North direction. The vehicle was coming in the opposite direction. The place of occurrence is shown as the centre median on the East. For a person riding a two wheeler from South-North direction, left hand side is on the West. So it appears that the vehicle driver crossed the center median and came in the opposite direction. At that time, it appears that first respondent vehicle came in the opposite direction and hit the deceased. So it is clearly seen that both are responsible for the occurrence. The deceased ought to have waited before passing to the other side of the road. Similarly, the first respondent vehicle driver ought to have been careful near the crossing road. Had the first respondent vehicle driver slowed down the vehicle by anticipating the cross, the accident would have been avoided.

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I find that both are contributed to the accident. Considering the manner of the accident this Court fixes the liability at 50 : 50. The finding of the Tribunal on the point of negligence is required to be revisited and accordingly the finding is set aside for the reasons stated above.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)No.304 of 2021

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In the aspect of compensation, P.W.1 has stated in her evidence that the deceased was aged about 65 years at the time of accident and was earning a sum of Rs.12,000/- by personal cultivation of agriculture lands. No documentary evidence can be expected to show the correct income. Considering the age and by considering the fact that he was having a family and children, it can be notionally fixed at Rs.10,000/- which will be proper and reasonable. Simultaneously, there is no document to show the correct age. We have to rely upon the age mentioned in the post mortem certificate, in the absence of document to show the age, wherein it is found that the age of the deceased is 65 years. Since he was aged about 65 years, there is no addition for future prospects. Considering the age of the deceased, multiplier 5 is adopted. Thereby loss of income is calculated as Rs.6,00,000/- (10000 x 12 x 5). 1/3 share is deducted towards the family expenses and it would come to Rs.4,00,000/-. Consortium for three claimants is fixed at Rs.40,000/- each. Loss of estate is fixed at Rs.15,000/-, Funeral expenses is fixed at Rs.15,000/-. Thereby, the total compensation is awarded as follows :

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)No.304 of 2021

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Particulars	Amount
Loss of Income Rs.	4,00,000/-
Loss of consortium Rs.	1,20,000/-
Loss of Estate Rs.	15,000/-
Funeral Expenses Rs.	15,000/-
Total compensation awarded Rs.	5,50,000/-

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In the award amount, 50% was deducted towards contributory negligence (550000/2). After deducting the compensation is fixed at Rs.2,75,000/- is fixed as compensation for the claimants.

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11. Accordingly, this Civil Miscellaneous Appeal is allowed and the order passed by the Tribunal is set aside. The award of compensation is fixed as follows:

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(i) The quantum of compensation awarded is fixed by this Court as Rs.2,75,000/- (Rupees Two Lakhs Seventy Five Thousand only ) with interest at the rate of 7.5% per annum.

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(ii) The Second respondent / insurance company is directed to deposit the award amount together with interest at the rate of 7.5% per annum from

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)No.304 of 2021

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the date of claim petition till the date of deposit and with cost to the credit of M.A.C.O.P.No.2/2017 on the file of learned Motor Accident Claims Tribunal cum Subordinate Court, Vedasandur, within a period of ONE month from the date of receipt of a copy of this judgment.

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(iii) On such deposit being made, the first appellant / first claimant is entitled for a sum of Rs.1,83,334/- (Rupees One Lakh Eighty Three Thousand, Three Hundred and Four only) with interest at the rate of 7.5% per annum and the appellants 2 and 3 / Claimants 2 and 3 are entitled for a sum of Rs.45,833/- (Rupees Forty Five Thousand Eight Hundred and Thirty Three only) each/-, after following the due process of law, less any amount already received by them.

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(iv) No costs.

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30.08.2024

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NCC: Yes / No Index: Yes / No Internet : Yes / No pnn

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)No.304 of 2021

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1.The Motor Accident Claims Tribunal cum Subordinate Court, Vedasandur

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2.The Section Officer, Vernacular Records Section, Madurai Bench of Madras High Court, Madurai.

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https://www.mhc.tn.gov.in/judis

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C.M.A(MD)No.304 of 2021

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G.ILANGOVAN, J.

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pnn

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Pre-Delivery Judgment made in C.M.A(MD)No.304 of 2021

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30.08.2024

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https://www.mhc.tn.gov.in/judis

Mylathal, v. G.Vijayalakshmi

Case brief

What is this about?

What did the court decide?

Mylathal, v. G.Vijayalakshmi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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