1. Motor accident claim — Rash driving by van — Death of engineering student — Claim by parents. (Para 3 )
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2021 Supreme(Online)(MAD) 33079
HIGH COURT OF MADRAS
R. Tharani, J
United India Insurance Company Limited – Appellant
Versus
Rajammal – Respondent
C.M.A(MD)No.156 of 2014|Cross Obj.(MD)No.13 of 2014|M.P.(MD)No.1 of 2014 in C.M.A(MD) No.156 of 2014
Advocates:
For the Appellants/Petitioners: S. Royce Emmanuel
For the Respondents: K.N. Thampi
For the Appellants/Petitioners: S. Royce Emmanuel
For the Respondents: K.N. Thampi
Compensation for a deceased student must include a reasonable notional income based on their educational potential and a 40% addition for future prospects, while contributory negligence for not wearing a helmet cannot be entertained if not pleaded or proved during trial.
Headnote:(A) Motor Accident Claims - Contributory Negligence - Non-wearing of helmet - A contention regarding the non-wearing of a helmet raised for the first time during arguments, which was not pleaded in the counter or grounds of appeal and not supported by evidence, is not maintainable. (Para 12)
(B) Quantum of Compensation - Notional Income of Student - Assessment of income for a student should consider educational qualifications and potential employment opportunities, such as compassionate appointment, to determine a just notional income. (Para 18)
(C) Future Prospects - Calculation of Compensation - For a deceased student, an addition of 40% towards future prospects is permissible in accordance with established Supreme Court precedents. (Para 19)
Issues: Whether the compensation awarded by the Tribunal was excessive and whether the notional income and future prospects of the deceased student were correctly calculated.
Legal Category Hierarchy
- tort
- practice and procedure
Table of Contents
2. Appellant insurer argued contributory negligence by deceased. Claimants sought enhanced compensation and increased multiplier. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 )
3. FIR and charge sheet against van driver. No evidence of contributory negligence. Notional income enhanced with future prospects. (Para 15 , 16 , 18 , 19 , 20 )
4. A student's income for compensation may be assessed notionally with future prospects. Contributory negligence requires specific pleading and proof. (Para 18 , 19 , 20 , 12 , 13 )
5. Appeal dismissed; cross-objection partly allowed. Compensation enhanced from Rs.9,36,000 to Rs.15,48,000 with interest. (Para 21 , 22 )
6. Can contributory negligence be argued without specific pleading and evidence?
No. A claim of contributory negligence must be raised in the pleadings and supported by evidence; it cannot be raised for the first time at argument. (Para 12 , 13 )
7. Should future prospects be added to the notional income of a deceased student?
Yes. Following Supreme Court precedent, 40% towards future prospects should be added to the notional income of a deceased student. (Para 19 )
8. What is the appropriate deduction for personal expenses of a deceased bachelor with dependent parents?
Following the Sarla Verma case, 1/3rd of the income is deducted towards the deceased's personal expenses when there are two dependents. (Para 20 )
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COMMON JUDGMENT
This Civil Miscellaneous Appeal as well as the Cross objections are filed against the order, passed in M.C.O.P.No.94 of 2010, dated 01.10.2013, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kuzhithurai.
2.The appellant herein is the third respondent and the respondents 1 and 2 are the claimants and the respondents 3 and 4 are the first and second respondents in the main M.C.O.P petition.
3.Brief substance of the petition in M.C.O.P.No.94 of 2010, is as follows:- On 08.05.2009, at about 5.00 p.m., when the deceased was riding his motor cycle, bearing Registration No.TN-74-X-1212 in a moderate speed observing all the road rules, the first respondent drove a Mahindra Maxi Cab bearing Registration No.TN-74-B-0079 in a rash and negligent manner and dashed against the Motor cycle. Due to that impact, the deceased sustained injuries and he was admitted in Isace Hospital. After taking first aid, he was taken to Tiruvandram Medical College Hospital and he died. The deceased was doing Engineering in C.S.I. Engineering College. He was the only male heir in the family, already the father of the deceased died and the claimants lost their whole livelihood. The claimants claimed a sum of Rs.20,00,000/- as compensation.
4.Brief substance of the counter of the first respondent, in M.C.O.P.No.94 of 2010, is as follows: The owner and Insurance Company of the Motor Cycle are necessary parties to the petition. The petition is bad for non-joinder of necessary parties. The first respondent drove the van in a moderate speed, observing the road rules. But, it was the deceased, who drove the motor cycle in a rash and negligent manner and he dashed against the Van. The first respondent vehicle was having valid driving licence and the van was having valid permit and the van was insured with the third respondent.
5.Brief substance of the counter filed by the third respondent, in M.C.O.P.No.94 of 2010, is as follows: The vehicle of the deceased belong to one George Shagaya Nilson, that vehicle was not insured. It is denied that the deceased was doing Engineering at the time of accident and the second claimant is not depending on the income of the deceased. The second claimant was maintained by the first claimant. The van was not having fitness certificate at the time of accident. The third respondent is not liable to pay compensation.
6.One witness was examined and Sixteen documents were marked as on the side of the petitioners. One witness was examined and no document was marked on the side of the respondents.
7.The Tribunal after hearing both sides, awarded a sum of Rs. 9,36,000/- as compensation to the claimants. Against the award, the appellant filed this Civil Miscellaneous Appeal and the Claimants filed a Cross Objection in Cross Objection (MD)No.13 of 2014.
8.On the side of the appellant, it is stated that the accident was caused only by the negligence of the deceased. Fixing negligence only on the part of the appellant is wrong. The owner and the Insurance Company of the motor cycle was not impleaded and the Tribunal failed to consider that the claimant examined no eye witness. The compensation fixed by the Tribunal is excessive and the salary fixed by the Tribunal is wrong. 50% has to be deducted. Fixing the multiplier is also wrong. The deceased was not wearing helmet and 50% contribution negligence has to be fixed.
9.A judgment of this Court in C.M.A.(MD)No.1777 of 2017, dated 11.04.2018, is cited, wherein, it is stated as follows:-
6.Though the parking of lorry without parking lights is one of the main reason, at the same time, the rider of the two wheeler should have been careful enough to ride the vehicle safely, that too in the mid day. Without noting the parked vehicle, the rider of the two wheeler dashed against the same and invited the accident. Therefore, 50% negligence should also be attributed to the deceased. The Tribunal only fixed 25% negligence on the part of the rider, since he was not wearing t
