Madras High Court
Branch Manager vs Sasikala on 23 April, 2021
C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
C.M.A.No.2212 of 2009
Branch Manager,
The National Insurance Company Limited,
No.62, T.S.R.Big Street,
Munsif Kumbakkonam Town,
Kumbakkonam Taluk ... Appellant
Versus
1.Sasikala
2.Minor Viswanathan
3.Minor Viswapriya
(Minors 2 and 3 are represented by
the first respondent)
4.N.Manickam ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree passed in MACT.OP.No.206
of 2007 dated 08.08.2008 on the file of the Motor Vehicle Accidents Claims
Tribunal, Thiruvarur.
Page 1 of 14
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
For Appellant : M/s.N.B.Surekha
For Respondents
For R1 to 3 : Mr.M.Thamizhavel
Cros.Obj.No.134 of 2011
1.Sasikala
2.Minor Viswanathan
3.Minor Viswapriya
(Minors 2 and 3 are represented by
the first appellant) ... Appellants
Versus
National Insurance Company Limited,
Rep. by its Branch Manager,
Kumbakonam ... Respondent
Prayer: Cross Objection filed under Order XLI Rule 22 of CPC to modify
the judgment and decree dated 08.08.2008 made in MCOP.No.206 of 2007
on the file of the Motor Accident Claims Tribunal, Tiruvarur.
For Appellants : Mr.M.Thamizhavel
For Respondent : M/s.N.B.Surekha
JUDGMENT
This appeal has been laid as against the judgment and decree dated
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
08.08.2008 made in MACT.OP.No.206 of 2007 on the file of the Motor
Vehicle Accidents Claims Tribunal, Thiruvarur thereby awarded the
compensation to the tune of Rs.50,000/-.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status before the Tribunal.
3. The case of the claimants is that on 01.07.2007, the deceased
was riding in the motor cycle driven by the first respondent as a pillian rider,
Thandalai Main Road, opposite to Lakshmi Complex. The first respondent
drove the motorcycle in a rash and negligent manner and hit the speed
breaker without applying brakes. Therefore, the pillion rider i.e. deceased
was thrown out from the two wheeler and fell down on the road. Therefore,
he sustained head injury. Immediately, he was taken to hospital and
unfortunately the treatment failed and he died. Therefore, the claimant filed
claim petition seeking compensation at Rs.7,00,000/-.
4. Resisting the same, the second respondent filed counter stating
that only because of the negligence of the deceased, he fell down. Further,
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
the first respondent, the rider of the motor vehicle had no valid driving
licence to drive the motor cycle and as such the second respondent is not at
all held to be liable for any compensation and sought for dismissal of the
claim petition.
5. On the side of the claimants, they examined P.W.1 and P.W.2
and marked Ex.P.1 to Ex.P.7. On the side of the respondents, they examined
R.W.1 and marked Ex.R.1 to Ex.R.3. On the basis of the evidence available
on records and also considering the submissions made by the learned
counsel appearing on either side, the Tribunal awarded a sum of Rs.50,000/-
under the head of 'No Fault Liability' under Section 140 of Motor Vehicles
Act. Aggrieved by the same, the second respondent came forward with the
present appeal questioning the liability. The claimants also filed cross
objection for enhancement of the award.
6. The learned counsel appearing for the second respondent
submitted that RW1, who is the rider of the two wheeler deposed that only
on the rash and negligent driving, the pillion rider fell down from the motor
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
cycle and sustained head injury. Whereas, Ex.R2 accident register which
was the first document immediately after accident revealed that two wheeler
hit one four wheeler while it was coming from the opposite side, due to
which the deceased fell down and sustained head injury and died. Therefore,
the second respondent is not at all held to be liable for any compensation,
since only because of the rash and negligent driving of the four wheeler
which was coming on the opposite side, the accident took place. Even
assuming that only on the rash and negligent driving of the first respondent,
the accident took place, the deceased was being pillion rider, he failed to
hold the bike carefully and he himself fell down from the two wheeler and
sustained head injury and died. She further submitted that the first
respondent had no valid licence at the time of accident. The licence of the
first respondent is marked as Ex.R3. It revealed that he had valid licence
only for light motor vehicle and heavy motor vehicle and not for
motorcycle. Therefore, the first respondent violated the conditions of the
policy and if any award passed as against the second respondent, the second
respondent is entitled to recover the same from the first respondent, who is
being owner of the two wheeler.
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
7. Per contra, the learned counsel appearing for the claimants
would contend that though the accident register which is marked as Ex.R2
revealed that the accident took place only because of one four-wheeler hit
the two wheeler and as such the deceased fell down and sustained head
injury. The person who brought the deceased to the hospital is not an eye
witness i.e. one, Baskaran, the relative of the deceased. Whereas PW2 is the
eye witness, who categorically deposed that only because of the rash and
negligent driving of the first respondent, he hit the speed breaker and due to
which the deceased fell down and he sustained head injury. Except head
injury, no other injury found in the body of the deceased. It is also duly
corroborated by RW1, who is the rider of the two wheeler and admitted his
guilty and also paid fine. Therefore, the Tribunal failed to fasten the entire
liability on the second respondent and awarded only a sum of Rs.50,000/-,
that too under 'No Fault Liability'.
8. Heard M/s.N.B.Surekha, learned counsel appearing for the
respondents and Mr.M.Thamizhavel, learned counsel appearing for the
appellants.
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
9. The deceased was the pillion rider of the motorcycle which was
driven by the first respondent. On 01.07.2007, when they were travelling in
Thandalai Main road, opposite to Lakshmi Complex at about 2 p.m., the
first respondent without noticing the speed breaker hit the same due to
which the deceased fell down from the motor cycle and sustained head
injury. Immediately, he was taken to hospital and treatment failed and died.
At the time of accident, the deceased was aged about 42 years and he was
working as Village Assistant of Panchayat President and he was earning
Rs.8,000/- per month. On the complaint lodged by the first respondent i.e.
the rider of the motorcycle, FIR was registered and also charge sheeted
against him. He admitted his guilt and paid fine before the jurisdictional
Magistrate Court. He was examined as RW1 and deposed that only on the
rash and negligent driving of RW1, the deceased fell down from the
motorcycle and sustained head injury and died. There is no whisper about
the four wheeler which was allegedly coming from the opposite side and hit
the two wheeler. That apart, PW2 who is the eye witness to the occurrence,
he categorically deposed that only on the rash and negligent driving of the
first respondent, the deceased fell down from the motor cycle and sustained
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
head injury. Though the second respondent marked accident register as
Ex.R2, revealed that the two wheeler was hit by one four-wheeler which
was coming from the opposite side and due to which, the deceased fell
down from the motorcycle. The deceased was brought by one, Baskaran,
who is a relative of the deceased and whatever the person who brought the
deceased said before the hospital and it was recorded in the accident
register. Admittedly, the said Baskaran is not an eye witness to the
occurrence and he was also not examined by the second respondent.
Therefore, the Tribunal wrongly concluded that the accident took place only
because of four wheeler, which was coming from the opposite side hit the
two wheeler, due to which, the deceased fell down from the bike and
sustained head injury and died.
10. Therefore, the accident took place only because of the rash and
negligent driving of the first respondent, the deceased fell down from the
bike and sustained head injury and died. Even the first respondent without
noticing the speed breaker hit the speed breaker and due to which the
deceased fell down and at the same time, the deceased also failed to hold the
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
bike properly and he fell down from the bike. Therefore, the contributory
negligence on the part of the deceased is fixed at 65% and the contributory
negligence fixed at 35% on the rash and negligent driving of the first
respondent. Insofar as the licence to ride the motor cycle is concerned, on
perusal of the Ex.R3 revealed that the licence was issued in favour of the
first respondent only to drive light motor vehicle and heavy motor vehicle
and not licenced for riding motorcycle with gear. Therefore, the first
respondent violated the policy condition and as such he is held to be liable
for compensation.
11. Though it is stated that the deceased was working as Village
Assistant to Panchayat President and he was drawing salary of Rs.8,000/-,
except oral evidence PW1, no evidence is available. Accident took place in
the year 2007 and as such the salary of the deceased is fixed at Rs.5,000/-
per month. At the time of accident, he was aged about 42 years as such
future prospect is fixed at 25%. The personal expenditure of the deceased is
deducted at 1/3 and multiplier method applied at 14. Accordingly the
pecuniary loss by the claimants is calculated as follows :-
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
= 6250 X 12 X14
= 10,50,000/-
After deducting 1/3, comes to Rs.7,00,000/-. The claimants are the wife and
two minor children and they are entitled to compensation each Rs.40,000/-
under the head of love and affection and totally comes to 1,20,000/-.
Liability is fastened on the second respondent at 35% and the liability
fastened on the deceased at 65% for the accident.
12. Accordingly the compensation awarded by the Tribunal stands
modified as under :-
Sl.No Heads Awarded by the Awarded by this
Tribunal Court
1 Loss of income Rs.50,000/- Rs.7,00,000/-
under no fault
liability
2 Love and Affection NIL Rs.1,20,000/-
3 Funeral expenses NIL Rs.15,000/-
4 Loss of Estate NIL Rs.15,000/-
5 Transportation NIL Rs.6,000/-
Total Rs.50,000/- Rs.8,56,000/-
From the above, 35% of the entire compensation comes to Rs.2,99,600/-,
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
rounded to Rs.3,00,000/- payable by the second respondent.
13. In the result, the Civil Miscellaneous Appeal is dismissed and
Cross objection is partly allowed as follows:-
(i) The award passed by the Tribunal is enhanced from Rs.50,000/- to
Rs.8,56,000/-, wherein the claimants are entitled to get 35% of the said
amount i.e. Rs.3,00,000/- from the second respondent.
(ii) The above amount i.e. Rs.3,00,000/- will carry the interest at the
rate of 7.5% per annum from the date of the claim petition till the date of
deposit.
(iii) The apportionment of Rs.3,00,000/- out of the enhanced award
amount is as follows:-
1st respondent herein - Rs.1,20,000/-
2nd respondent herein - Rs.90,000/-
3rd respondent herein - Rs.90,000/-
(iv) The appellant / insurance company is directed to deposit the
35% award amount i.e. Rs.3,00,000/-, less the amount, if any, already
deposited, along with accrued interest and costs within a period of six
weeks from the date of receipt of copy of this Judgment. Thereafter, the
appellant / insurance company is at liberty to recover the said amount from
the first respondent in MCOP.No.206 of 2007 in the manner known to law.
(v) On such deposit, the claimants / respondents herein are permitted
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
to withdraw the amount awarded as above by filing proper application
before the Tribunal.
(vi) The shares of the 2nd and 3rd respondents herein /minor claimants
are directed to be deposited in any one of the nationalized bank till they
attain majority. The 1st respondent herein /Mother of the 2nd and 3rd
respondents herein is permitted to withdraw the accrued interest once in
three months.
(vii) The claimants / respondents herein shall pay requisite Court fee
before the receipt of the copy of the judgment for the enhanced
compensation.
(viii) There shall be no order as to costs.
23.04.2021
Index:Yes/No
Internet: Yes/no
Speaking/Non-speaking Order
lok
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
To
1.The Judge,
Motor Accident Claims Tribunal,
Thiruvarur.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
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C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
G.K.ILANTHIRAIYAN, J.
lok
C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
23.04.2021
https://www.mhc.tn.gov.in/judis/
