1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.443 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 The New India Assurance Company Ltd., Chennai. .. Appellant/Respondent No.2 Vs. 1. S.Tamilarasi 2. S.Venkatesan .. Respondent Nos.1 & 2/ Petitioner 3. A.Mani .. Respondent No.3/ Respondent 1 Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 19.04.2010 passed in M.C.O.P.No.535 of 2006 by the Motor Accidents Claims Tribunal/Additional District and Sessions Court (Fast Track Court No.I), Tiruchirappalli. For Appellant .. Mr.K.Murugesan For Respondents 1 and 2 .. Mr.S.Muthu Krishnan For Respondent No.3 .. No appearance JUDGMENT This Civil Miscellaneous Appeal has been directed against the award dated 19.04.2010 passed in M.C.O.P.No.535 of 2006 by the Motor Accidents Claims Tribunal/Additional District and Sessions Court (Fast Track Court No.I), Tiruchirappalli. 2. The respondents 1 and 2 herein as petitioners have filed M.C.O.P.No.535 of 2006 on the file of the Motor Accident Claims Tribunal praying to pass an award of Rs.8,00,000/- by way of compensation, wherein the present appellant has been shown as second respondent. 3. It is stated in the petition that on 21.03.2006 at about 05.00 p.m. the deceased Seenivasan has driven his two wheeler on the left side of the road near the coconut grove of one Pitchai. The driver of the first respondent has driven the vehicle bearing Registration No.TN-28-B-8433 in rash and negligent manner and dashed against the deceased. Due to accident, the deceased has sustained multiple injuries and subsequently he succumbed to injuries. The vehicle which caused the accident, has been insured with the second respondent. Under the said circumstances, the present petition has been filed for getting compensation as mentioned therein. 4. It is stated in the counter filed on the side of the second respondent that the driver of the first respondent is not at all responsible for the alleged accident. The deceased in sozzle mood has https://hcservices.ecourts.gov.in/hcservices/ 2 driven his two wheeler and thereby invited the accident. Since the deceased has voluntarily invited the accident, the petitioners are not entitled to get compensation and altogether the present petition deserves to be dismissed. 5. On the basis of the rival evidence adduced on either side, the Motor Accidents Claims Tribunal has awarded Rs.7,50,000/- and after making deduction to the extent of 25% has awarded Rs.5,62,500/-. Against the quantum, the present Civil Miscellaneous Appeal has been preferred at the instance of the second respondent as appellant. 6. The learned counsel appearing for the appellant/second respondent has repeatedly contended that the deceased in sozzle mood has driven his two wheeler and thereby hit against the vehicle of the first respondent and the driver of the first respondent is not at all responsible for the accident, but the Motor Accidents Claims Tribunal has given 25% towards the negligence of the deceased and since the deceased has driven his two wheeler inebriety and himself invited the accident, 50% should be given for his negligence and therefore the award passed by the Motor Accidents Claims Tribunal is liable to be modified. 7. The learned counsel appearing for the respondents 1 and 2/petitioners has contended that the Motor Accidents Claims Tribunal after considering the evidence adduced with regard to manner of accident, has rightly fixed 25% responsibility upon the deceased and the remaining 75% responsibility upon the driver of the first respondent and therefore the award in question is not liable to be modified. 8. On the basis of the divergent submissions made on either side, the Court has to look into as to whether the award in question is perfectly correct or the same requires modification? 9. It has been contended on the side of the petitioners that the deceased has attained the age of 27 and he is a post-graduate and run a mess and thereby earned Rs.9,000/- per mensum. But to prove the same, no document has been forthcoming on the side of the petitioners. However the Motor Accidents Claims Tribunal has fixed Rs.5,000/- as monthly income of the deceased. 10. Considering the fact that no document has been filed with regard to nature of business as well as income of the deceased, this Court is of the view to fix Rs.4,500/- per mensum as monthly income of the deceased. After deducting one-third towards personal expenses, it comes to Rs.3,000/- and yearly it comes to Rs.36,000/-. The Motor Accidents Claims Tribunal has adopted 18 multiplier on the basis of the age of the deceased. At this juncture, the learned counsel appearing for the appellant/second respondent has contended that since the deceased is a bachelor, his age cannot be considered for adopting multiplier and the age of his mother that is the first petitioner should be considered. It is a humdrum that in a case like this, the age of the deceased as well as petitioners can be considered and the Court should adopt multiplier on the basis of whichever is higher. The Motor Accidents Claims Tribunal has adopted 18 multiplier and the same can be accepted and in that way it comes to Rs.6,48,000/-. The Motor Accidents https://hcservices.ecourts.gov.in/hcservices/ 3 Claims Tribunal has awarded Rs.25,000/- towards love and affection and Rs.5,000/- towards funeral expenses and the same can be accepted and in aggregation it comes to Rs.6,78,000/-. 11. The main attack made in the present Civil Miscellaneous Appeal is that since the deceased has been under the influence of alcohol, 50% must be given towards his negligence. In fact, on the side of the respondents 1 and 2/ petitioners replete evidence is available so as to prove the alleged negligence on the part of the driver of the first respondent. In order to controvert or disprove the evidence given on the side of the petitioners with regard to manner of accident, the driver of the first respondent has not at all been examined. The driver of the first respondent is a competent person to support the contention urged on the side of the second respondent. Since the driver of the first respondent has not at all been examined, the Court cannot accept the contention urged on the side of the appellant/second respondent. Of course, it is true that at the time of accident the deceased has been under the influence of alcohol. The Motor Accidents Claims Tribunal after considering the fact that the deceased has been under the influence of alcohol at the time of accident has given 25% towards his negligence. Since the driver of the first respondent has not at all been examined so as to prove complete negligence on the part of the deceased, it is needless to say that the percentage adopted by the Motor Accidents Claims Tribunal with regard to negligence is perfectly correct and the same cannot be interfered with. 12. It has already been discussed and found that the total compensation comes to Rs.6,78,000/- and after deducting 25% towards negligence of the deceased, it comes to Rs.5,08,500/- and to that extent the award in question is liable to be modified. 13. In fine, this Civil Miscellaneous Appeal is allowed in part without costs and the award passed in M.C.O.P.No.535 of 2006 by the Motor Accident Claims Tribunal/Additional District and Sessions Court (Fast Track Court No.I), Tiruchirappalli is modified as follows: The respondents 1 and 2/petitioners are entitled to get Rs.5,08,500/- by way of compensation. In other aspect, the award in question is confirmed. Consequently connected miscellaneous petition is closed. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar To The Motor Accident Claims Tribunal/ Additional District and Sessions Judge, (Fast Track Court No.I), Tiruchirappalli. +1 CC to Mr.S.Muthukrishnan, Advocate (SR.No.25927) +1 CC to Mr.K.Murugesan, Advocate (SR.No.25497) C.M.A(MD)No.443 of 2011 and smn M.P(MD)No.1 of 2011 NSV/23.8.11/3P/4C 02.08.2011 https://hcservices.ecourts.gov.in/hcservices/