IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.10.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2345 of 2006 and C.M.P.No.9202 of 2006 1.United India Insurance Co., Ltd., Salem 2.Holy Cross Matriculation Higher Secondary School Salem .. Appellants/ respondents 2 & 1 Vs 1.Sanmuga Sundaram 2.Eswari 3.S.Mahalakshmi .. Respondents/ Petitioners Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 08.07.2005, made in M.C.O.P.No.1567 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court-I, Salem. For appellants : Mr.T.Ravichandran For respondents : Mrs.M.Srividya J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellants/respondents against the Award and Decree, dated 08.07.2005, made in M.C.O.P.No.1567 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court-I, Salem, awarding a compensation of Rs.4,12,500/- together with 7.5% interest per annum, from the date of filing the claim petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellants/respondents have filed the above appeal praying to scale down the award and decree passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts of the case are as follows: On 02.02.2001, the deceased Senthil Kumar went along his friends to Kumaragiri and then he returned towards his home with his friends in a TVS Chamber bearing registration No.TN27 J0801. The deceased Senthil Kumar rode the same and the others were accompanying behind him. When at around 04.00 p.m. they came near the Erumapalayam Branch road on the Udayapatti-Seelanaickenpatti Bye pass road, the deceased Senthil Kumar rode the vehicle on the left side of the road very slowly and in a careful manner. At that time, the bus bearing registration No.TDL939, belonging to the second respondent and insured with the first respondent came in the opposite side ie.from Seelanaickenpatti side to Udayarpatti side. The driver of the bus drove the bus with a very high speed and in a rash and negligent manner and also he drove on his extreme right side of the road and dashed against the deceased Senthil Kumar's motorcycle. In the result, he sustained head injury and on the spot itself he died. Regarding the said accident, the Salem City Traffic Investigation Police registered the case against the said bus driver in Crime No.57/2001 under Sections 279, 337 and 304(A) I.P.C. At the time of the accident, the deceased was hale and healthy and was aged about 24 years old. He was running printing press and earning a sum of Rs.12,000/- per month. The first petitioner is the father, second petitioner is the mother and the third petitioner is the younger sister of the deceased. The accident had happened only due to the rash and negligent driving of the driver of the bus. As such, the petitioners claimed a compensation of Rs.10,00,000/- before the Tribunal. 4.The second respondent/United India Insurance Co., Ltd., in their Counter, had resisted the claim petition, which reads as follows: "This respondent submits that the contents in paras 1 to 23 are false. This respondent submits that the deceased was aged more than 24 years and not 24 years as alleged. The deceased was not doing printing press work as alleged in para 4. It is false to allege that the deceased Senthil Kumar was running a printing press under the name and style 'Senthil Kumar Printers' at Salem. The income of the deceased at Rs.12,000/- is false and the same is further falsified by the averments in para 7. the contents in para 8 are all false. The accident did not occur as alleged in para 8. the contents in para 10 are false. The deceased was riding the TVS50 with two persons as pillion riders. The alleged damages as stated in para 11(a) are false. The contents in paras 19 and 20 are also https://hcservices.ecourts.gov.in/hcservices/ false since the petitioners are not depending on the deceased. The amount of compensation claimed in para 21 at Rs.10,00,000/- is not only high but also out of proportion to the alleged income and age of the deceased. The claims under various heads in parts I and II of para 21 towards loss of earnings at Rs.5,00,000/- partial loss of earnings at Rs.3,00,000/-, Rs.3,000/- for transport to hospital, Rs.3,000/- for damages to clothing and articles, Rs.2,00,000/- for loss of son's affection, Rs.5,00,000/- for future prosperity, Rs.10,000/- for funeral expenses, Rs.5,00,000/- for pain and suffering, Rs.1,00,000/- for compensation for permanent disability and Rs.5,00,000/- for loss of earning power are not only false but also highly excessive and arbitrary." The second respondent prayed accordingly. 5.The learned Motor Accident Claims Tribunal had framed three issues for the consideration namely: (i) Whether the accident had occurred due to the rash and negligent driving of the driver of the first respondent's vehicle? (ii) Whether the petitioners are entitled to get compensation, as claimed in the claim petition? (iii)What other reliefs the petitioners are entitled? 6.On the petitioners' side, the first petitioner was examined as PW1 and nine documents were marked as Exs.P1 to P9 namely Ex.P1- Copy of the Criminal Court Judgment, Ex.P2-Rough Sketchy, Ex.P3-Copy of the Post-mortem Report, Ex.P4-S.S.L.C.Mark Sheet, Ex.P5-Driving licence, Ex.P6-Certificate relating to the Press, Ex.P7-Letter pad of the Press, Ex.P8-Photo, Ex.P9-College Identify Card. On the respondents' side one Karunanithi was examined as RW1 and Common Judgment of the M.C.O.P.Nos.402 of 2001 and 527 of 2002 were marked. 7.The PW1, the first petitioner had adduced evidence stating that the deceased Senthil Kumar is his son, the second petitioner is his wife and the third petitioner is his son. The deceased Senthil Kumar was aged about 21 years and was a student at the Polytechnic, whileso due to his illness he discontinued his engineering course and started a printing press and earning a sum of Rs.12,000/- per month. In order to prove the accident, he had marked Ex.P1-Lower https://hcservices.ecourts.gov.in/hcservices/ Court Judgment, Ex.P2-Rough Sketch, Ex.P3-Post-mortem Report and in order to prove his academic qualification he had marked Ex.P4-SSLC Mark Sheet and Ex.P6-Certificate of a printing press. 8.RW1, one Karunanidhi had adduced evidence stating that three persons were travelled in the motorcycle and the negligent driving of the rider of the motorcycle the accident had happened and he had marked another Judgment related to the instant accident as Ex.R1. 9.After considering the evidence of PW1, RW1 and the documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the first respondent's vehicle, therefore the respondents are liable to pay compensation and awarded the compensation as follows: i. The Tribunal fixed the income of the deceased as Rs.3,000/- per month and fixed his age at 23 years and after adopting the multiplier method awarded a sum of Rs.4,08,000 (Rs.3,000/- - Rs.1,000/- X 12 X 17) under the head of loss of income, ii.Rs.2,500/- under the head of loss of life, iii.Rs.2,000/- under the head of funeral expenses, In total, the Tribunal awarded a sum of Rs.4,12,500/- as compensation to the petitioners, together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the respondents to deposit the compensation amount of Rs.4,12,500/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of one month from the date of its order. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period three years. The Tribunal further apportioned a sum of Rs.1,37,500/- to each petitioners. Accordingly ordered. 10.Aggrieved by the said Award and Decree, the appellants/respondents have filed the above appeal praying to scale down the award and decree passed by the Tribunal. 11.The learned counsel appearing for the appellants argued that the negligence was on the part of the deceased and not on the part of the bus driver. Further, the learned counsel argued that without the income proof the Tribunal awarded the compensation, which is erroneous and the compensation under the various heads are also on higher side. Therefore, the learned counsel prays before this Court https://hcservices.ecourts.gov.in/hcservices/ to scale down the compensation amount awarded by the Tribunal. The learned counsel for the appellants in support of his appeal has cited the following Judgments made in 2009(1) TN MAC 411 (DB), National Insurance Co. Ltd. v. S.Chitra (DB), the relevant head notes of which are as follows: "NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – Appeal against finding of negligence – Deceased proceeding in Motor Cycle in Main Road along with his wife on pillion and his son seated in front – Deceased took a diversion through a gap in median into right side of road, because his own side of road to left of median was under repair and closed – Offending vehicle/Motor Cycle coming from opposite direction on its own side of road, took a sharp swerve to right resulting in head-on collision – Deceased lost his balance, fell down and died due to internal head injuries – Tribunal on basis of Rough Sketch/Ex.P.2 held that offending motor cycle drifted from its path and came to its extreme right side causing accident and found offending vehicle solely responsible for accident – Insurer contending that deceased in part contributed to his own death – Tribunal rejected contention regarding contributory negligence in absence of evidence to show that vehicle was ridden in high speed – Appeal against – Deceased who entered other side of road because of road block ought to have been very cautious, since he was entering wrong side of road – Accident occurred due to loss of balance when offending vehicle swerved sharply across road – Fact that deceased was carrying two passengers besides himself definitely resulted in head-on collision – Deceased should have seen vehicle coming from opposite direction – Therefore, definitely there is element of contributory negligence especially in cases of head-on collision – High Court deprecated practice of drivers of two wheelers carrying more than one person – Contributory negligence on part of deceased fixed at 20%." 12.The learned counsel for the respondents/claimants argued that FIR was registered against the driver of the offending bus. In order to prove the income of the deceased Ex.P6 was marked, it reveals that the deceased Senthil Kumar was the Proprietor of the Printing Press, which was running in his name. The compensation awarded by the Tribunal is on the lower side, considering the age https://hcservices.ecourts.gov.in/hcservices/ and income of the deceased. Therefore, the above appeal is not maintainable. The learned counsel in support of her contention has cited the following Judgments made in C.M.A.No.3391 of 2003, Vijaya Baskar vs. Jyotheswaran and another, wherein it has been held as follows: "2. The facts leading to the filing of the claim petition before the Tribunal was that on 5.5.2001 at 10 a.m. at Ponnai to Tiruvalam Road, near Jayar Farm, while the claimant was proceeding as a rider in hero Honda Motor Cycle Reg.No.AP-03-D-7004 from Ponnai to Tiruvalam direction at that time the lorry bearing Registration No.TN23-D-7515 belonging to the first respondent which was being driven by its driver in a rash and negligent manner endangering public safety in an uncontrollable speed was coming in the opposite direction hit and dashed against the motorcycle in which the claimant was proceeding and thus in the said impact, the petitioner has sustained instantaneous multiple grievous injuries and two other occupants of the motor cycle succumbed to in the accident. The claimant, the appellant herein filed the claim petition for compensation of Rs.5,00,000. 3. Before the Tribunal, the claimant examined himself as PW1 and Dr.Gopalan as PW2. Exs.P1 to P9 were marked by the claimant. On behalf of the respondents, RW1 was examined and no document was marked. The Tribunal, after appreciating the oral and documentary evidence on record has awarded a sum of Rs.68,691.50/- as compensation by applying the theory of contributory negligence. Not satisfied with the quantum of compensation, the claimant has filed the present appeal for enhancement. 4. The learned counsel appearing for the claimant the appellant herein contended that the Tribunal has erred in applying the principle of contributory negligence on the part of the claimant and reducing the compensation to 50%. The learned counsel appearing for the Insurance Company contended that the injured is the tortfeaser. Hence, the award made by the Tribunal is correct." 2004 ACJ 1510, Kattabomman Transport Corporation Ltd. V. Vellai Duraichi and others, the relevant head notes of which are as follows: https://hcservices.ecourts.gov.in/hcservices/ "Negligence – Three persons riding motor cycle – Bus came at fast speed on wrong side of its road and hit against motor cycle coming from opposite direction on the left side of its road – Two motor cycle riders sustained injuries and one of them succumbed to his injuries – Pillion rider who was injured gave statement to police that bus was being driven in rash and negligent manner and it dashed against the motor cycle – Rough sketch of accident site prepared by police shows that bus came to the wrong side and hit the motor cycle – Police filed charge-sheet against bus driver – Defence that there were three persons riding on the motor cycle, they violated the statutory provisions and thus contributed to the accident – No evidence that accident occurred because of travelling of one more person than permissible two on the motor cycle – Tribunal held that bus driver was rash and negligent – Whether motorcyclist is liable for contributory negligence merely because there were two pillion riders – Held: no." 13.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that three persons had travelled on the motorcycle and all the three persons have filed claim petitions against the first appellant Insurance Co., The affidavit of the three persons, who travelled on the motorcycle indicates violation of traffic rules. As such, there is negligence on the part of the rider and two pillion riders. Hence, this Court fastened the negligence on the part of the first appellant/Insurance Co., as 80% and on the side of the riders of the motorcycle as 20%. So, this Court directs the first appellant Insurance Co., to pay 80% of the compensation amount ie.3,30,000/- with accrued interest thereon at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, which is fair and equitable. The said compensation amount is apportioned to the claimants equally along with interest. 14.On 19.06.2006 this Court enforced a condition on the first appellant Insurance Co., to deposit 50% of the compensation amount, into the credit of the M.C.O.P.No.1567 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court-I, Salem. 15.Now this Court directing the first appellant to deposit the balance compensation as per this Court's finding after deducing https://hcservices.ecourts.gov.in/hcservices/ earlier payment, into the credit of the M.C.O.P.No.1567 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court-I, Salem, within a period of six weeks from the date of receipt of a copy of this order. After such deposit being made, it is open to the claimants to withdraw their balance apportioned compensation with accrued interest thereon, lying in the credit of the M.C.O.P.No.1567 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court-I, Salem, by making proper payment application in accordance with law, subject to deduction of withdrawals if any. 16.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 08.07.2005, made in M.C.O.P.No.1567 of 2002, passed by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court-I, Salem is modified. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To The Motor Accident Claims Tribunal, Additional District Court, Fast Track Court-I, Salem. 1 cc to Mr.T. Ravichandran, Advocate, Sr. 73099 2 ccs to Mr.R. Singaravelan, Advocate, Sr.75449 & 72788 C.M.A.No.2345 of 2006 NG (CO) kk 23/12 https://hcservices.ecourts.gov.in/hcservices/