Back
2024 Supreme(Online)(MAD) 12992
THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.03.2024 CORAM:
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN AND THE HONOURABLE MR. JUSTICE R.SAKTHIVEL C.M.A.Nos.1164 of 2023, 274 and 490 of 2024 and C.M.P.Nos.11243 of 2023, 3021 and 4980 of 2024 The Divisional Manager, New India Assurance Co. Ltd., No.161~A, Kizhakku Velistreet, Madurai. ... Appellant in all the CMAs Vs.
1.Latha 2.Abdul Rahuman ... Respondents in all the CMAs Common Prayer: Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the awards dated 18th day of November 2021 made in MCOP.No.192 of 2013 on the file of the Additional Motor Accident Claims Tribunal at Puducherry, 14th day of December 2021 made in MCOP.No.223 of 2013 on the file of the Additional Motor Accident Claims Tribunal at Puducherry and 18th day of November 2021 made in MCOP.No.193 of 2013 on the file of the Additional Motor Accident Claims Tribunal (Additional Judge) at Puducherry. For Appellant : Mr.C.Ramesh Babu in all the CMAs For Respondents : Mr.Prakash Adiapadam for R1 in all the CMAs *******
Deduction for contributory negligence should consider the age and maturity level of the party involved.
Headnote:
Compensation - Motor Accident Claims - Court modifies the award in favor of the claimant due to contributory negligence - Deduction of 15% for contributory negligence in the case of the minor child not justified - Appeals dismissed with modification
Fact of the Case:
The appeals arose from the same accident where a lorry collided with a two-wheeler, resulting in the death of the rider and a minor child, as well as injuries to the rider's wife. The claimant sought compensation in three independent claim petitions.
Finding of the Court:
The court found the quantum of compensation for the deceased and the minor child reasonable. However, it modified the award in favor of the minor child, directing the entire compensation to be paid by the Insurance Company, as the deduction for contributory negligence was not justified.
Issues: The issues revolved around the quantum of compensation and the deduction for contributory negligence, particularly in the case of the minor child.
Ratio Decidendi: The court held that the deduction of 15% for contributory negligence in the case of the minor child was not justified, as the child's age and maturity level should be taken into account.
Final Decision: The court dismissed the appeals with the modification of the award in favor of the minor child, directing the entire compensation to be paid by the Insurance Company.
C O M M O N J U D G M E N T
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
All these three appeals arise out of the same accident which occurred on 04.11.2012.
2. According to the claimant, when the deceased Vijayakumar was riding his two-wheeler bearing Reg.No.PY-01-AG-3903 with his wife and minor child Pooja Sri, aged 8 years on the Tindivanam – Villupuram bye- pass road, a lorry belonging to the 2nd respondent bearing Reg.No.TN-31- AE-3850 driven by its driver in a rash and negligent manner dashed against the two-wheeler. As a result of the impact, both the rider Vijayakumar and the minor child Pooja Sri sustained grievous injuries and died on the spot. The wife of the rider Latha survived with grievous injuries. Attributing negligence on the part of the lorry as the cause of the accident, the claimant sought for compensation.
3. Three independent claim petitions were filed. In MCOP.No.193 of
2013 subject matter of CMA.No.490 of 2024, the claimant sought for a compensation of Rs.58,25,000/-. The quantum was sought to be justified by contending that the deceased was running a hardware shop at Maduruntakam and was earning Rs.40,000/- per month. In view of the untimely loss, the wife who is also injured cannot also carry on the business, resulting in loss of the entire income to the family.
4. As far as the minor child is concerned, the claimant sought for a compensation of Rs.39,90,000/- in MCOP.No.192 of 2013 covered in CMA.No.1164 of 2023.
5. The third claim petition was filed in MCOP.No.223 of 2013 by the wife of the deceased Vijayakumar viz., Latha seeking a compensation of Rs.40,03,000/- for the injuries sustained by her. This subject matter of CMA274 of 2024.
6. In all the claim petitions while the claimant let in evidence, the Insurance Company did not let in any evidence.
7. The Tribunal assessed the compensation in respect of the deceased Vijayakumar at Rs.17,57,000/- and after deducting 15% towards contributory negligence, since it was found that Vijayakumar was travelling without helmet, the amount payable by the Insurance Company was fixed at Rs.14,94,000/-.
8. As regards the minor daughter was concerned, the Tribunal assessed the compensation payable to her at Rs.11,57,000/-. The Tribunal also deducted 15% towards contributory negligence since it was found that the 8 years old minor child was not wearing a helmet. Having deducted 15%, the amount payable by the Insurance Company was arrived at Rs.9,84,000/-.
9. In so far as the injuries sustained by the claimant in MCOP.No.223 of 2013 viz., Latha who is the wife of the rider Vijayakumar is concerned, the Tribunal found that she had suffered a disability of 85%. Since there was an amputation of left leg just below the hip. The Tribunal applied the multiplier method and arrived at the compensation of Rs.40,03,000/- payable by the Insurance Company. The Tribunal did not deduct any amount for contributory negligence for the injured claimant. Aggrieved the Insurance Company has come up with these appeals.
10. We have heard Mr.C.Ramesh Babu, learned counsel appearing for the Insurance Company.
11. Mr.C.Ramesh Babu, learned counsel appearing for the Insurance Company is unable to challenge the quantum of compensation very effectively, since the award passed by the Tribunal in respect of the death of Vijayakumar as well as minor daughter Pooja Sri is very reasonable. Even insofar as the injury case is concerned, the Tribunal having found that the disability is 85% has rightly applied the multiplier method and arrived at the compensation.
12. The other major grievance of the learned counsel for the Insurance Company is that the deductions made on the ground of contributory negligence is not uniform, while the Tribunal has deducted
15% towards contributory negligence in the case of the rider of the vehicle and the minor daughter, it has not chosen to deduct any amount for the injured claimant, since she was also not wearing helmet.
13. The learned counsel would also contend t
