In motor accident claims, contributory negligence must be fixed only on credible evidence; notional income and personal expense deductions should be calculated as per recognized legal standards when direct proof is absent.

JUDGMENT

Challenging the award passed in M.C.O.P.No.806 of 2022, dated 19.02.2024 on the file of the Motor Accident Claims Tribunal/Special District Judge (MACT), Madurai, this civil miscellaneous appeal has been filed by the Insurance Company.

2. For the sake of convenience, the parties herein are referred to as per the ranking before the learned Tribunal.

3. The appellant Insurance Company is the 2^nd respondent before the Tribunal. The petitioners are the legal heirs of the deceased person. The 1^st respondent is the owner cum driver of the four wheeler involved in the accident. On 18.02.2022, after purchasing groceries, the deceased riding his TVS XL bearing registration no.TN67F7130 intending to cross the Virudhunagar to Thirumangalam NH7. While crossing the road from west to east, Hundai i10 bearing registration no.TN09BP6518 which was driven in a fast and negligent manner by the 1^st respondent from south to north, hit against the rider of the two wheeler causing an accident. As a result of which, the rider of the two wheeler, namely Muthuramalingam sustained serious injuries, who on admission at Thirumangalam Government Hospital was declared dead on the date. The 1^st respondent had insured his four wheeler with the 2^nd respondent Insurance Company. At the time of accident, the deceased was aged about 59. Seeking to compensate the death of Muthuramalingam, his legal heirs had laid M.C.O.P.No.806 of 2022.

4. The learned counsel for the Insurance Company submitted that this appeal has been preferred as against the award of the Tribunal on three grounds. (i) The Tribunal ought not to have preferred to fix 50% of contributory negligence on the deceased when he had recklessly and carelessly crossed the road without caution and the learned Tribunal ought to have fixed the entire negligence on the deceased. He submitted that though he possessed a license, the same was with respect to four wheeler and he did not possess license for two wheeler. Hence, the entire negligence ought to have fixed on the deceased himself. That apart, he also insisted that the particular Sevarakottai intersection is not an authorized intersection for the deceased to cross the National Highway road and as such, he categorically contended that the entire negligence ought to have been fixed as against the deceased.

(ii) He has submitted that one Shanmugasundaram was examined as P.W.3, who deposed his evidence stating that he had paid the deceased a monthly salary of Rs.28,500/- and the deceased had served as Driver in his Sri Shanmuga Logistics Company. However, no authenticated document was marked through him for proving that an amount of Rs. 28,500/- was credited into the account of the deceased as monthly salary. Only a certificate of salary as certified by P.W.3 himself was marked as Exhibit P.6 which ought not to have been relied upon by the learned Tribunal to fix the monthly income of the deceased. The learned Tribunal ought to have fixed notional income which is probable to the income of a heavy license holder. Having not done so, the quantum of monthly income fixed by the learned Tribunal should also be modified.

(iii) He insisted that the 1^st petitioner is the wife and the 2^nd to 6^th petitioners are the married daughters of the deceased. Hence, the learned Tribunal ought to have deducted 1/3^rd towards personal expenditure of the deceased following Sarla Varma case , instead the learned Tribunal had proceeded to deduct 1/4^th as personal expenses considering the married daughters as his dependents which is not legally sustainable. On that basis, he sought for modification of the award of the learned Tribunal.

5. Per contra, the learned