BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.02.2025 CORAM:

THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI C.M.A.(MD).No.1496 of 2024

1.Ashapriya

2.Durga

3.Logeshwari … Appellants / Petitioners vs.

1.R.Anbazhagan

2.The Branch Manager, M/s.The New India Assurance Co. Ltd., DO 710500, 1st Floor, East Coast Chambers, G.N.Chetty Road, Chennai-600 017. …Respondents / Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 03.10.2023 in M.C.O.P.No.502 of 2020 on the file of the Motor Accident Claims Tribunal /

Special District Judge to deal with MCOP Cases, Thrichirappalli.

For Appellant : Mr.N.Sudhagar Nagaraj For 1^st Respondent : No Appearance For 2^nd Respondent : Mrs.K.R.Shivashankari

JUDGMENT

The legal heirs of deceased Manivannan have preferred this Civil Miscellaneous Appeal against the award dated 03.10.2023 passed in M.C.O.P.No.502 of 2020 by the Motor Accident Claims Tribunal, Trichy for enhancement of compensation.

2. Despite the receipt of notice, the 1^st respondent neither appeared nor entered appearance through his counsel.

3. Heard the arguments of the learned counsel for the appellant/claimant and the learned counsel for the 2^nd respondent.

4. The claim petition was filed under Section 166 of Motor Vehicles Act, claiming compensation of Rs.30,00,000/- for the death of Manivannan, who died in the road traffic accident that occurred on 22.10.2019.

5. At trial, to substantiate the details of claim petition, on the petitioner’s side two witnesses were examined and thirteen documents were marked. On the 2^nd respondent/Insurance Company side, one witness was examined through whom Exs.X1 to X3 were marked.

6. The appeal is focused mainly on two grounds, one as to the fixation of contributory negligence upon the deceased and fixation of notional income of the deceased was less. PW2 is ocular witness. It has come on record through the evidence of PW2, Tr.Srinivasan that on 22.10.2019 at about 11.30 a.m., while he was proceeding in his two wheeler along Madras-Trichy NH, when he was nearing the road junction, a TVS XL rider was proceeding ahead of him with a pillion and Ford echo sport Car bearing Reg.No.TN-81-D-4725 proceeded from north to south came in a rash and negligent manner and hit upon the TVS-XL from behind. On the 2^nd respondent side, one Tr.Sathasivam has been examined as RW1 and his evidence reflects the fact that the charge sheet was laid against the driver of the Car.

7. It is relevant to note that the deceased was riding as a pillion in a TVS-XL two wheeler.

8. The Tribunal has observed that while the rider of the two wheeler was crossing the road, the accident occurred and as the rider of the two wheeler has also contributed to the negligence and hence, 10% was fixed upon the deceased who was riding pillion in the said two wheeler.

9. Whether fixation of 10% upon the pillion is justifiable is a moot question. The doctrine of identification or imputation are the well known principles in the law of torts. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff, where the employee is acting in the course of employment.

10. The above said principle was not applicable. It was held in Mills case that the above said principle is not spoken to the passenger in a vehicle in the sense on negligence of the driver of the vehicle in which the passenger is travelling cannot be imputed to the passenger.

11. In the above said case, it was held that even if the navigators of the ship 'Bushire' were negligent, the navigators' negligence could not be imputed to the deceased who was travelling in the ship. This principle has been applied, in latter cases to Passenger travelling in a motor vehicle whose driver is found guilty of contributory negligence. The object behind the principle is that there cannot be a fiction of the passenger sharing a ''right of control’’ of the operations of the ve