C.M.A.No.2969 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.2969 of 2021 and
C.M.P.No.16932 of 2021
The National Insurance Company Limited,
Old No.144, New No.46,
III Floor,
Moore Street,
Chennai – 600 001. .. Appellant
Vs.
1.Subbulakshmi
2.Ishwariya
3.Minor. Shree Lokesh
(Minor 3rd respondent represented by
his mother and natural guardian,
Subbulakshmi, 1st respondent herein)
4.Sankar .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
04.12.2019, made in M.C.O.P.No.325 of 2017, on the file of the Motor
Accident Claims Tribunal, Additional District Court - Fast Track Court,
Kancheepuram.
https://www.mhc.tn.gov.in/judis
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C.M.A.No.2969 of 2021
For Appellant : Mr.J.Michael Visuvasam
For RR 1 to 4 : No appearance
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.) This Civil Miscellaneous Appeal has been filed by the appellant / New India Insurance Company Limited against the judgment and decree dated 04.12.2019, made in M.C.O.P.No.325 of 2017, on the file of the Motor Accident Claims Tribunal, Additional District Court - Fast Track Court, Kancheepuram.
2.The appellant is the 2nd respondent in M.C.O.P.No.325 of 2017, on the file of the Motor Accident Claims Tribunal, Additional District Court - Fast Track Court, Kancheepuram. The respondents 1 to 3 / claimants filed the said claim petition, claiming a sum of Rs.1,00,00,000/- as compensation for the death of one Iyappan, who died in the accident that took place on 26.03.2017.
3.According to the respondents 1 to 3, on 26.03.2017 at about 06.30 a.m., while the deceased Iyappan was walking opposite to Narayana Mastry House on the Ozalur – Chengalpet Road, the rider of https://www.mhc.tn.gov.in/judis 2/12 C.M.A.No.2969 of 2021 the motorcycle bearing Registration No.TN 19 E 4742 belonging to 4th respondent, drove the same at a colossal speed without following the Motor Vehicle Rules, dashed against the said Iyappan and caused the accident. In the accident, the said Iyappan sustained multiple injuries and immediately after the accident, the said Iyappan was taken to Chengalpet Medical College Hospital. Thereafter he was referred to Global Hospital for further treatment. Insptie of medical treatment, the said Iyappan succumbed to injuries on 28.03.2017. Hence, the respondents 1 to 3 filed the claim petition claiming compensation against the 4th respondent and appellant.
4.The 4th respondent - owner of the motorcycle remained exparte before the Tribunal.
5.The appellant-Insurance Company filed counter statement and denied all the averments made by the respondents 1 to 3 in the claim petition. The appellant denied the manner of accident as alleged by the respondents 1 to 3. According to appellant, as per the AR copy, it was very clear that a cow attacked the said Iyappan and therefore, it is not a road accident case. The respondents 1 to 3, 4th respondent and the Police https://www.mhc.tn.gov.in/judis 3/12 C.M.A.No.2969 of 2021 Official have colluded together with a view to get compensation from the appellant, filed claim petition with false averments. The 4th respondent / owner – cum – rider of the motorcycle was not possessing valid driving license to drive the motorcycle at the time of accident and the motorcycle was not insured with the appellant. Hence, the appellant is not liable to pay any compensation to the respondents 1 to 3. The respondents 1 to 3 have wantonly and willingly caused delay in conducting the trial and filing the case records. The interest for the period of delay from the date of filing the counter till the date of judgment shall be waived. The respondents 1 to 3 have to prove that they are the legal heirs of the deceased. The appellant denied the age, avocation and income of the deceased. In any event, the quantum of compensation claimed by the respondents 1 to 3 is highly excessive and prayed for dismissal of the claim petition as against the appellant.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1, one Murali, eyewitness to the accident was examined as P.W.2 and one Lawrance Daniel, Accountant of K.K.Corporation Ltd., was examined as P.W.3 and 15 documents were marked as Exs.P1 to P15. The appellant did not let in any oral and documentary evidence. https://www.mhc.tn.gov.in/judis 4/12 C.M.A.No.2969 of 2021
7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the rider of the motorcycle belonging to 4th respondent and directed the appellant-Insurance Company to pay a sum of Rs.28,78,312/- as compensation to the respondents 1 to 3.
8.To set aside the said award dated 04.12.2019, made in M.C.O.P.No.325 of 2017, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company contended that the deceased Iyappan sustained grievous injuries only due to the attack of the cow and not due to road traffic accident caused by the motorcycle belonging to 4th respondent. The Tribunal failed to consider the fact that F.I.R. was registered after delay of 36 hours of the accident by lodging a false complaint stating that the accident has occurred only due to rash and negligent driving by the rider of the motorcycle belonging to 4th respondent. Since the 4th respondent and the victim hailed from the same village, the wife of the 4th respondent https://www.mhc.tn.gov.in/judis 5/12 C.M.A.No.2969 of 2021 who was riding as pillion rider in the motorcycle, after much deliberation was persuaded to give a false account of the alleged incident to the Police as if their motorcycle dashed against the victim and the cow also attacked the victim. The Tribunal failed to consider the credibility of the evidence of eyewitness / P.W.2 with regard to the alleged accident. The total compensation awarded by the Tribunal is highly excessive and prayed for setting aside the award passed by the Tribunal.
10.Though notice has been served on the respondents 1 to 4 and their names are printed in the cause list, there is no representation for them, either in person or through counsel.
11.Heard the learned counsel appearing for the appellant – Insurance Company and perused the entire materials on record.
12.From the materials on record, it is seen that it is the case of the respondents 1 to 3 that while the deceased Iyappan was walking opposite to Narayana Mastry House on the Ozalur – Chengalpet Road, the rider of the motorcycle bearing Registration No.TN 19 E 4742 belonging to 4th respondent, drove the same at a high speed without following the Motor https://www.mhc.tn.gov.in/judis 6/12 C.M.A.No.2969 of 2021 Vehicle Rules, dashed against the said Iyappan and caused the accident. In the accident, the said Iyappan sustained multiple injuries and inspite of medical treatment, he died on 28.03.2017. To substantiate their case, the 1st respondent examined herself as P.W.1. She deposed as that of the averments in the claim petition. She also relied on Ex.P1/FIR, which was registered against the 4th respondent / rider – cum – owner of the motorcycle. P.W.1 is not an eyewitness to the accident. The respondents 1 to 3 also examined one Murali, eyewitness to the accident as P.W.2, who deposed that the accident has occurred only due to rash and negligent driving by the 4th respondent – rider of the motorcycle.
12(i). On the other hand, it is the case of the appellant that 4 th respondent was not responsible for the accident and the deceased Iyappan was not injured in the alleged accident caused by the 4th respondent. According to appellant, the deceased got injured by a cow and he died due to the said injuries. They have not marked any document and not examined any Doctor who recorded the statement based on which the Accident Register was recorded. The appellant has not produced any material to show as to who took the injured victim to the Hospital and admitted him. There is nothing on record to show that who https://www.mhc.tn.gov.in/judis 7/12 C.M.A.No.2969 of 2021 gave the statement to the Hospital. It is on record that both the 4 th respondent and his wife, who was riding as pillion in the motorcycle are also admitted in the Hospital for the injuries sustained by them. It is not the case of the appellant that the 4th respondent and his wife were also got injured by attack of cow. It is the further case of the appellant that the 4th respondent and respondents 1 to 3 are residing in the same village, colluded together and made a false claim against the appellant to get the compensation. The appellant has stated that they are going to take criminal action against the respondents for making a false claim. The appellant has not examined any witness to show that the deceased was injured when the cow attacked him. The appellant also failed to prove that the respondents 1 to 4 colluded together and made a false claim against the appellant. Even though the appellant has stated that they are going to take action against the respondents, they have not produced any materials to show that they lodged a complaint with the concerned Police against the respondents 1 to 4.
12(ii). Considering the evidence of P.W.2 / eyewitness and in the absence of any evidence to disprove the evidence of P.W.2, the Tribunal has held that the accident has occurred only due to rash and negligent https://www.mhc.tn.gov.in/judis 8/12 C.M.A.No.2969 of 2021 driving by the 4th respondent. There is no error in the said finding of the Tribunal warranting interference by this Court.
13.As far as quantum of compensation is concerned, it is the case of the respondents 1 to 3 that at the time of accident, the deceased was working as Deputy Manager at K.K.Corporation Company Ltd., and was earning a sum of Rs.40,000/- per month. To prove their case, the respondents 1 to 3 examined one Lawrance Daniel, who was working as Accountant at K.K.Corporation Company Ltd., as P.W.3 and marked Ex.P12 / salary certificate of the deceased, Ex.P14 / Bank statement of the deceased. P.W.3 in his evidence has deposed that the deceased was getting a sum of Rs.21,000/- per month as salary. As per Ex.P14 / Bank statement, the monthly income of the deceased was Rs.21,602/-. The Tribunal considering the evidence of P.W.3 and Ex.P14, fixed a sum of Rs.21,602/- as monthly income of the deceased and the same is proper. The deceased was aged 47 years at the time of accident and the Tribunal has rightly granted 25% enhancement towards future prospects and applied multiplier '13' and awarded a sum of Rs.28,08,312/- towards loss of dependency and the same is not excessive. The Tribunal considering the entire materials on record, has awarded a sum of Rs.28,78,312/- as https://www.mhc.tn.gov.in/judis 9/12 C.M.A.No.2969 of 2021 compensation to the respondents 1 to 3, which is not excessive and hence, the same is hereby confirmed.
14.In the result, this Civil Miscellaneous Appeal is dismissed and a sum of Rs.28,78,312/- awarded by the Tribunal as compensation to the respondents 1 to 3, along with interest and costs is confirmed. The appellant-Insurance Company is directed to deposit the award amount along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.325 of 2017, on the file of the Motor Accident Claims Tribunal, Additional District Court - Fast Track Court, Kancheepuram. On such deposit, the respondents 1 & 2 are permitted to withdraw their respective share of the award amount now determined by this Court as per the ratio of apportionment fixed by the Tribunal, along with proportionate interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The share of the minor 3rd respondent is directed to be deposited in any one of the Nationalized Banks, till the minor 3rd respondent attains majority. On such deposit, the 1st respondent, being the https://www.mhc.tn.gov.in/judis 10/12 C.M.A.No.2969 of 2021 Mother of the minor 3rd respondent is permitted to withdraw the accrued interest once in three months for the welfare the minor 3rd respondent. Consequently the connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (V.S.G., J)
06.09.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The Additional District Judge,
Motor Accidents Claims Tribunal,
Fast Track Court,
Kancheepuram.
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
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C.M.A.No.2969 of 2021
V.M.VELUMANI, J.
and
V.SIVAGNANAM, J.
krk
C.M.A.No.2969 of 2021
06.09.2022
https://www.mhc.tn.gov.in/judis
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