Latha @ Rajamani v. Sudharsan

J U D G M E N T The appellants herein who are the mother and brother of the deceased Krupashree has preferred this Civil Miscellaneous appeal against the Judgment and decree m ade in M.C.O.P.No.872 of 2011, dated 20.04.2018 passed by the Motor Accident Claims Tribunal, Special District Court, Salem for enhance ment.

¶2The claim petition was filed under Section 166 of the Motor Vehicle Act, by the appellants?claimants claiming compensation of Rs.25 lakhs on the death of her son Krupashree in the road accident that had taken place on 19.09.2010.

¶3The learned counsel for the appellants / claimants would stress upon that the deceased was travelling as a pillion rider, but the Tribunal has fixed 15 % towards contributory negligence on the part of the deceased as she was travelling without helmet. The learned counsel would further contend that the a mount awarded under various heads are very meagre. It was further put forth that no a mount was awarded under the head 'love and affection' though the mother of the deceased lost her daughter who was aged about 22 years. nd4. Per contra, the learned counsel for the 2 respondent /Insurance Co mpany, would vehemently argue that as the deceased travelled in a two wheeler without helmet, the Tribunal has fixed 15% contributory negligence. The learned counsel would further contend that the a mounts awarded under different heads appear to be reasonable and the sa me need not be disturbed.

¶5Before the Tribunal, in order to substantiate the averments m ade in the claim petition, the mother of the deceased was exa mined as P.W.1, the rider of the two wheeler in which the deceased was travelling was exa mined as P.W.2 and one Venkatesh was exa mined as P.W.3 and Exs.P1 to P30 were m arked. On the side of the respondents, Ex.R1 has been m arked. No witness was exa mined on the side of the respondents.

¶6Rival submissions are considered and perused the m aterials available on record.

¶7The m anner in which the accident has taken place is not in dispute. As per the evidence of P.W.2, Shalini who had ridden the two wheeler, when P.W.2 and the deceased were proceeding along Pera mbur Anna Nagar Tank Road in a two wheeler, an Auto bearing Registration No.TN 05 P 6129 was driven by its driver in a rash and negligent m anner and hit against the two wheeler, and as a result of which, both the rider and the pillion rider were thrown way and due to the same, the pillion rider Krupashree died on spot. However, the Insurance co mpany has taken a stand that since the pillion rider travelled without helmet,she died. Hence, the contributory negligence fixed at 15 % is correct.

¶8Section 129 of the Motor Vehicles Act postulates that the driver / rider shall wear a protective headgear or helmet while riding or driving the motorcycle or scooter and the object of the provision is that in order to save the persons who are travelling in the two wheeler when they meet road accident. The deceased who was aged 22 years at the relevant point of time while travelling in a two wheeler as a pillion rider along with P.W.2, had unfortunately met with an accident due to rash and negligent driving of an Auto driver and lost her life. It is pertinent to note that the deceased Krupashree secured B.Tech degree in the month of April 2010 and within five months, she m et with an accident. It is also seen from documents m arked on the side of the claimants Exs.P11 to P13 that the deceased has got appreciation certificate in the competition held in the year 2008 by TEXINNOVA and also given Mahathma Gandhi Merit Scholarship.

¶9Taking into account of all the above facts and circumstances as m entioned supra coupled with the fact that the deceased travelled as a pillion rider without helmet, this Court is inclined to fix 5% towards contributory negligence on the part of the deceased. Henceforth, the a mount for loss of earnings is arrived at as mentioned hereunder: Monthly Income Rs.10,000/ -+ Future Prospects 40% = Rs.14,000/ -p.m Deduction of Personal expenses = 50% Rs.14,000/ -( -) Rs.7,000/ -= Rs.7,000/ -Annual income = Rs.7,000/ -X 12 = Rs.84,000/ -Annual income -Contributory Negligence 5 % Rs.84,000/ -( -) Rs.4,200/ -= Rs.79,800/ -Loss of earning = Rs.79,800/ -X 18 (Multiplier) =Rs.14,36,400/ -

¶10Further, as no a mount was awarded towards love and affection, considering the fact that the mother who is the first claimant herein lost her daughter at the age of 22 years in a road accident, a sum of Rs.25,000/ - is hereby granted towards loss of love and affection. Except the above modifications, all other a mounts awarded appear to be just and reasonable and they do not warrant any interference by this Court. Thus, the compensation awarded by the Tribunal is modified as follows: S . N o De s C r i P t i o n Amoun t Amoun t Awa rd awa r d ed b y awa r d ed b y C on f i rmed o r T r i b un a 1 t h i s C ou r t enhan C e d o r ( R s ) ( R s ) g r an t e d

¶1Loss of earning 12,85,200 14,36,400 enhanced (71,400X18) (79,800X18)

¶2Funeral expenses 15,000 15,000 confirmed

¶3Loss of Estate 15,000 15,000 confirmed

¶4Loss of love and Nil 25,000 granted affection Total 13,15,200 1 4 , 9 1 , 4 0 0 E nh an C ed by R s . 1 , 7 6 , 2 0 0 / -

¶11In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.13,15,200/ - is hereby enhanced to R s . 1 4 , 9 1 , 4 0 0 / - ( R u P e e s F ou r t e e en 1 a kh s N i n e t y One t h ou s an d and f o u r hund r e d on 1 y ) together with interest at the rate of 7.5% per annu m from the date of petition till the date of deposit. ndThe 2 respondent / the New India Assurance Co. Ltd., is directed to deposit the enhanced award a mount now determined by this Court along with interest and costs, less the a mount 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 first appellant/ mother of the deceased is entitled to withdraw a su m of Rs.12,41,400/ - , the second appellant/brother of the deceased shall withdraw a su m of Rs.2,50,000/ - on filing proper application. The appellants are directed to pay the Court fee, if any on the enhanced a mount of co mpensation. No costs. 2 1 . 0 4 . 2 0 2 3 vum Index: Yes/No Speaking order / Non speaking order To

¶1The Motor Accident Claims Tribunal, Special District Court, Salem.

¶2The Section Officer, VR Section, Madras High Court, Chennai. R . KA LA IMATH I , J . vum CMA No . 2 5 7 5 o f 2 0 1 9 CMA No.2575 of 2019 2 1 . 0 4 . 2 0 2 3

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.04.2023 CORAM: TH E HONOURAB L E MRS . J U S T I C E R . KA LA IMATH I CMA No . 2 5 7 5 o f 2 0 1 9 1. Latha @ Rajamani 2. Saravana Kumar ... Appellants Vs 1. Sudharsan 2. The New India Assurance Co. Ltd, Divisional Office, Sri Vari Co mplex, nd 2 Floor, New Bus Stand Road, Meyyanor, Salem 636 004. 3. Dhar malingam 4. United India Insurance Co. Ltd., TP HUB Pera mannur Mani Road, Salem - 7. ... Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and decree dated 20.04.2018 m ade in MCOP No.872 of 2011 on the file of the Motor Accident Claims Tribunal, Special District Court, Salem. For Appellant : Mr.K.Kuppusa my For Respondents : Ms.R.Sreevidya for R2 No appearance for R3 R1 and R4 set exparte