Madras High Court
The Branch Manager vs Suseela on 23 April, 2021
C.M.A.No.2047 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.2047 of 2015
and
MP No.1 of 2015
The Branch Manager,
Royal Sundaram Alliance
Insurance Company Limited,
B.O.5, R.J. Plaza,
II Floor,
Katpadi Main Road,
Virudampet,
Vellore. ... Appellant
Versus
1. Suseela
2. Minor Aruna
3. Minor Aravindan
4. Minor Sivasathya
Minors 2 to 4 are the children of Mahalingam,
Minors represented by their next friend
mother Suseela
5. Kannammal
6. Anumuthu
7. Jaishankar ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 to allow this Civil Miscellaneous Appeal against the
decree and judgment dated 17th day of February, 2014, made in M.C.O.P.
No.203 of 2013 on the file of the Motor Accident Claims Tribunal
(Special Sub Court), Tirupattur.
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C.M.A.No.2047 of 2015
For Appellant : Mr.K.Vinod
for Mr.S.Manohar
For Respondents : Mr.K.Silambarasan for R1 to R6
M/s.S.Dhanasekaran for R7
JUDGMENT
This appeal has been filed by the Insurance company challenging
the award dated 17.02.2014 passed by the Motor Accident Claims
Tribunal (Special Sub Court), Tirupattur in MCOP No.203 of 2013.
2. The appellant / Insurance Company has challenged the award
primarily on the ground that the contributory negligence fixed on the part
of the deceased at 25% by the Tribunal is not correct as according to
them, the entire negligence is on the part of the deceased, who was the
rider of the motor cycle which dashed against the insured lorry from
behind. Even though the appellant has also raised grounds questioning
the quantum of compensation awarded by the Tribunal to the claimants,
the same has not been seriously disputed by the learned counsel for the
appellant.
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C.M.A.No.2047 of 2015
3. Heard Mr.K.Vinod, learned counsel for the appellant and
Mr.K.Silambarasan, learned counsel for the respondents 1 to 6 and
Mr.S.Dhanasekaran, learned counsel for the 7th respondent.
4. The case of the respondents 1 to 6/claimants as seen from their
claim petition filed before the Tribunal is that the deceased, who was the
rider of the motor cycle bearing Registration No.TN-23-U-2547, hit the
lorry bearing registration TN-23-AB-6881 (insured) on its back side,
which was negligently parked in the middle of the road without any
parking light indication.
5.However, according to the appellant /Insurance Company, the
insured lorry was parked on the extreme left side of the road leaving
sufficient space to other vehicles to move. According to them, the
deceased Mahalingam was driving his TVS Moped in an uncontrollable
speed and hit the back side of the lorry. It is also their case that the
deceased Mahalingam did not possess the valid Driving Licence to drive
the Moped and further, the TVS Moped was not insured with the
Insurance Company. The Tribunal has taken into consideration the
respective contentions.
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C.M.A.No.2047 of 2015
6. Before the Tribunal, the respondents 1 to 6 / claimants have
filed nine documents, which were marked as Exs.P1 to Ex.P9 and two
witnesses were examined on their side viz., the wife of the deceased
Suseela as PW1, and an eye witness to the accident viz., Ulagaraj as
PW2. On the side of the appellant / Insurance Company, three documents
were marked as Exs.R1 to R3 and one witness was examined viz., their
official Srinivasan as RW1.
7. The Eye witness to the accident Ulagaraj (PW2) has deposed
before the Tribunal that the insured lorry was carrying cement bags and
was parked in tar (bituman) road and the driver was sleeping in the lorry
and it was foggy weather and the visibility was poor at the time of the
accident. He has also deposed that there was no parking indication for
the lorry. According to him, only due to the negligent parking of the
lorry in the no parking area, the TVS Moped in which the deceased
Mahalingam was the rider dashed against the lorry.
8. However, the appellant / Insurance Company's official RW1 has
deposed that only due to the rash and negligent driving by the deceased
Mahalingam, who was the rider of the Two wheeler, the accident had
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C.M.A.No.2047 of 2015
happened, which resulted in the Two wheeler colliding with the insured
lorry.
9. The Tribunal after considering the oral and documentary
evidence has rightly come to the conclusion that there was contributory
negligence on the part of the deceased (Mahalingam) and fixed his
Contributory negligence at 25% and has fixed the Contributory
negligence of the driver of the insured lorry at 75%.
10. This Court after giving due consideration to the materials and
evidence available on record is of the considered view that the Tribunal
has rightly fixed the contributory negligence of the insured lorry as well
as the deceased in the ratio of 75% : 25 % and the assessment made by
the Tribunal is confirmed.
11. With regard to the quantum of compensation, the Tribunal has
awarded the total compensation of Rs.8,50,000/- and the liability of the
appellant /Insurance Company is Rs.6,37,500/-. As there is no scope
for interference with regard to the compensation awarded by the
Tribunal under various heads viz., Rs.7,56,000/- towards loss of
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C.M.A.No.2047 of 2015
dependency; Rs.10,000/- towards loss of estate; Rs.24,000/- towards loss
of consortium to the 1st respondent; Rs.50,000/- towards loss of love and
affection to respondents 2 to 6 ( Rs.10,000/- each) and Rs.10,000/-
towards funeral and transportation are concerned, since the same is a just
compensation and is not excessive in the considered view of this Court.
12. For the foregoing reasons, this Court does not find any
infirmity in the findings of the Tribunal. Therefore, there is no merit in
this appeal and accordingly, the Civil Miscellaneous Appeal shall stand
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
13. The appellant / Insurance Company is directed to deposit the
entire award (75%) amount awarded by the Tribunal together with
interest at 7.5% p.a. from the date of claim petition till the date of
realization, less the amount, if any, already deposited to the credit of
M.C.O.P. No.203 of 2013 on the file of Motor Accident Claims Tribunal
(Special Sub Court), Tirupattur, within a period of four weeks from the
date of receipt of a copy of this Judgment. On such deposit being made,
the Tribunal is directed to transfer the award amount directly to the bank
account of the respondents 1,5 and 6 / major claimants through RTGS,
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C.M.A.No.2047 of 2015
within a period of two weeks thereafter as per the ratio of apportionment
fixed by the Tribunal. Insofar as the share of the 2, 3 and 4
respondents / minor claimants are concerned, the same shall be
deposited in Fixed deposit in any one of the Nationalized Banks, till they
attain the age of majority and the interest accrued thereon shall be
withdrawn by the guardian of the minor claimant once in three months,
directly from the Bank. If the second respondent / minor claimant has
attained the age of majority, it is open to her to file formal petition before
the Tribunal to get her share of apportionment.
23.04.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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To
1. The Motor Accident Claims Tribunal
(Special Sub Court), Tirupattur.
2.The Section Officer,
V.R. Section, High Court of Madras,
Chennai – 104.
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C.M.A.No.2047 of 2015
ABDUL QUDDHOSE, J.
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C.M.A.No.2047 of 2015
23.04.2021
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