(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, praying to enhance the compensation amount awarded vide order dated 15.06.2021 made in M.C.O.P.No.227 of 2020, on the file of the Motor Accident Claims Tribunal, Special District Court for Motor Accident Claims Cases, Krishnagiri and fix the entire liability on the 2nd respondent.)
Challenging the award dated 15.06.2021 passed by the learned District Judge, Special District Court (MACT), Krishnagiri, in M.C.O.P.No.227 of 2020, the claimants have approached this Court with this appeal seeking enhancement of compensation and fastening of entire liability on the second respondent/Insurance Company.
2. Brief facts of the case:
* The first appellant is the mother, the second appellant is the father and the third and fourth appellants are the sisters of one Prasanna, who died on 30.01.2019.
* On 30.01.2019, while the deceased was riding a Honda Twister two-wheeler bearing Registration No.TN-38-BF-9306, with his friend as a pillion rider, in a cautious manner and in compliance with traffic rules, a Tata Ace four wheeler bearing Registration No.TN-29-BY-4393, driven by the first respondent/owner of the vehicle and insured with the second respondent/Insurance Company, in a rash and negligent manner, overtook the deceased’s motorcycle, suddenly pulled in front and applied abrupt brakes. Consequently, the deceased was unable to control his motorcycle and collided with the rear side of the first respondent’s vehicle.
* Both the deceased and his friend sustained fatal injuries. Despite being rushed to the hospital, the deceased passed away on the same day.
* At the time of the accident, the deceased was 18 years old. He was pursuing Diploma in Civil Engineering in a Polytechnic College and working part-time in a computer center, earning Rs.5,000/- per month.
* The claimants filed a claim petition seeking a total compensation of Rs.30,00,000/-. The Tribunal, after considering the oral and documentary evidence, awarded a total compensation of Rs.13,59,600/-. Aggrieved by the lesser quantum of compensation awarded, the claimants have preferred this appeal.
3.1 The learned counsel for the appellants submitted that the Tribunal erred in fixing a meagre notional monthly income of Rs.8,000/- for an 18 year old student pursuing a technical diploma. Relying on the precedent set by a Division Bench of this Court in Maanvizhi & others Vs. Suresh Babu & another (CMA.No.1639 of 2021 decided on 17.03.2022), which fixed the notional monthly income of an engineering student at Rs.20,000/-, the learned counsel submitted that fixing the notional monthly income at Rs.16,000/- for a polytechnic engineering student is just and reasonable. He further submitted that the Tribunal also erred in deducting 10% towards contributory negligence on the ground that the deceased did not possess a valid driving license at the time of the accident when the evidence confirms that the first respondent’s vehicle was driven rashly and negligently and there is no evidence or finding that the deceased was riding the two-wheeler in a rash and negligent manner.
3.2 In support of his contention that contributory negligence ought not to have been fixed on the part of the deceased, the learned counsel relied upon the judgment of the Hon’ble Supreme Court in Dinesh Kumar J. @ Dinesh J. Vs. National Insurance Co. Ltd. & others reported in CDJ 2017 SC 1416. The relevant paragraphs of the aforesaid judgment are extracted hereunder:-
“8. Insofar as the judgment of the High Court is concerned, the Division Bench has placed a considerable degree of importance on the fact that there was no visible damage to the lorry but that it was the motor cycle which had suffered damage and that there was no eye-witness. We are in agreement with the submission which has been urged on behalf of the appellant that plea of contributory negligence was accepted purely on the basis of conjecture and without any evidence. Once the finding that there was contributory negligence on the part of the appellant is held to be without any basis, the second aspect which weighed both with the tribunal and the High Court, that the appellant had not produced the driving licence, would be of no relevance. This aspect has been considered in a judgment of this Court in Sudhir Kumar Rana Vs. Surinder Singh (supra) where it was held as follows:
"9. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence…
10. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place."
9. In view of the above position, we are of the view that the deduction of forty per cent which was made on the ground of contributory negligence is without any basis. Accordingly, we direct that the appellant shall be entitled to an additional amount of Rs.4.60 lakhs which was wrongly disallowed.”….
(emphasis supplied by this Court)
3.3 Furthermore, the learned counsel submitted that the Tribunal failed to adequately compensate the siblings of the deceased (the 3rd and 4th appellants). Given that there are four dependent claimants consisting of the parents and two dependent sisters, the Tribunal ought to have awarded Rs.40,000/- to each sibling towards loss of love and affection. However, the Tribunal erred by awarding a meagre sum of Rs.20,000/- to each sibling, which requires upward revision by this Court.
4. Per contra, the learned counsel appearing for the second respondent/Insurance Company submitted that the Tribunal adequately assessed the evidence and awarded a fair compensation that requires no enhancement. He further submitted that the instant appeal has been filed with an enormous delay of 1,600 days and in the event, this Court allows an enhancement, the appellants should not be entitled to accrued interest on the enhanced compensation amount during this prolonged period of delay.
5. The first respondent/owner of the offending vehicle was set ex parte before the Tribunal.
6. Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the second respondent/Insurance Company and perused the materials available on record.
7. A careful perusal of the records and testimonies reveals that the first respondent drove the vehicle rashly and negligently, cut across, and abruptly applied brakes directly in front of the motorcycle of the deceased, leaving the deceased with no opportunity to avert the collision.
8. Following the law laid down by the Apex Court in Dinesh Kumar J. (supra), not possessing driving license cannot be equated to contributory negligence unless active rashness or negligence on the part of the rider is proved. In the absence of any such finding against the deceased, the 10% deduction by the Tribunal on the ground of contributory negligence is legally unsustainable and is hereby set aside.
9. Furthermore, the fixation of Rs.8,000/- per month as notional monthly income for a technical diploma student is conservative. Aligning with the guiding principles of the order of the Division Bench of this Court in Maanvizhi (supra), this Court, to meet the ends of justice, enhances the notional monthly income of the deceased to Rs.16,000/- from Rs.8,000/-.
10. Following settled jurisprudence on consortium and filial/sibling affection, the compensation for the third and fourth appellants under the head of love and affection is enhanced from Rs. 20,000/- each to Rs.40,000/- each.
11. In view of the aforesaid observations and findings, the award of the Tribunal is modified as hereunder:-
12. In the result,
a. This Civil Miscellaneous Appeal is partly allowed and the award passed by the Tribunal for an amount of Rs.12,23,640/- is enhanced to Rs.26,09,200/-. No costs.
b. The second respondent/Insurance Company is directed to deposit the sum of Rs.26,09,200/- (less the amount already deposited) with interest at the rate of 7.5% per annum, from the date of claim petition till the date of deposit, within a period of six (6) weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.227 of 2020 on the file of the Motor Accident Claims Tribunal, Special District Court for Motor Accident Claims Cases, Krishnagiri.
c. On such deposit being made, the appellants are at liberty to withdraw their share as per the apportionment made by the Tribunal as well as this Court, with costs and interest, after filing a proper petition for withdrawal.
d. The appellants are directed to pay Court fee for the enhanced compensation amount, if any, and the Registry is directed to draft the decree only after receipt of Court fee.
e. The appellants are not entitled to interest for the default period in filing the above appeal, if any.
