Madras High Court
Shriram General Insurance Co. Ltd vs K.Vijayarani on 24 August, 2021
C.M.A. No.1256 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.08.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. No.1256 of 2021
Shriram General Insurance Co. Ltd.,
2nd Floor, City Centre,
No.66, Thirumalai Pillai Road,
Near Vani Mahal,T.Nagar,
Chennai 600 017. ...appellant
Vs.
1. K.Vijayarani
2. K.Dhivakar
3. K.Dhivya
4. Minor K.Deepan
(minor is rep. By his mother/1st respondent as guardian)
5. K.Rathinasamy
6. R.Apoorvam
7. S.Rasaiya ...respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicle Act, 1988 against the Judgment and decree dated 28.10.2015
made in MCOP.No.955 of 2012 on the file of Motor Accident Claims
Tribunal (Principal District Court), Cuddalore.
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C.M.A. No.1256 of 2021
For Appellant : Mr.A.Salomi
For Respondents
for R1 to R6 : Ms.Ramya V. Rao
for R7 : Set ex-parte before the Tribunal
JUDGMENT
[Judgment of the Court was delivered by V.SIVAGNANAM, J]
The appeal is heard through video conferencing.
2. It is the case of the respondents 1 to 6 herein/claimants, that on
03.02.2012 at about 8.00 pm, the deceased Kalyanasundaram was riding his
motorcycle bearing Registration No.PY-01-BP-9912 on the left side of the
Sirkazhi bye pass road. At that time, the Lorry bearing Registration No.TN-
45-F-9429 belonging to the seventh respondent was parked on the middle of
the road without lighting the parking lamps, as a result of which, the
deceased hit behind the said Lorry. In that accident, the deceased sustained
grievous injuries and died on the way to hospital. Alleging that the accident
had occurred due to the negligence of the driver of the Lorry, the legal heirs
of the deceased laid a claim petition, claiming a compensation of
Rs.50,00,000/-.
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C.M.A. No.1256 of 2021
3. Resisting the claim petition, the Insurance Company filed their
counter disputing the manner of accident, age, occupation and income of
the deceased and its liability to pay the compensation.
4. To substantiate the claim, on the side of the claimants PW1 and
PW2 were examined and Ex.P1 to Ex.P7 were marked. On the side of the
Insurance Company, RW1 and RW2 were examined and Ex.R1 was marked.
5. The Tribunal, after considering the oral and documentary evidence
held that the driver of the Lorry belonging to the seventh respondent was
responsible for the accident and awarded a compensation of Rs.29,50,000/-
along with interest at 8% per annum. Assailing the award, the Insurance
Company has filed the present appeal.
6. It is the contention of the learned counsel for the
appellant/Insurance Company that the Tribunal went wrong in fastening the
entire negligence on the insured Lorry on the pretext that the Lorry was not
stationed at the parking area. However, the same was not substantiated by
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C.M.A. No.1256 of 2021
any documentary evidence. In fact, the driver of the two wheeler hit the
Lorry at a hectic speed and caused the accident. In such circumstances, the
Tribunal ought to have fixed the entire liability on the part of the deceased
and dismissed the claim petition. Instead of doing so, the Tribunal fixed the
entire liability on the part of the driver of the Lorry and passed an award in
favour of the respondents 1 to 6/claimants. Hence, he prays for setting aside
the award passed by the Tribunal and consequently to dismiss the claim
petition.
7. Per contra, the learned counsel for the claimants made submissions
supporting the award passed by the Tribunal.
8. Heard the learned counsel appearing on either side and perused the
materials available on record.
9. The present appeal has been filed only questioning the liability on
the part of the Insurance Company in paying the compensation amount and
hence, we are not dealing with the other aspects of the award passed by the
Tribunal.
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10. We find that the accident had occurred during night time,
i.e., 8.00 pm and absolutely, there is no evidence to show that the Lorry was
not parked on road and the rear side of the parking light was switched on to
caution the motorists, who were plying on the road. In the absence of such
evidence, we are not inclined to accept the submission of the learned
counsel for the Insurance Company that the entire negligence has to be
fixed on the part of the deceased. At the same time, we are of the opinion
that, if the deceased would have been vigilant, he would have averted the
accident. However, while parking the vehicle especially at night time, it is
the duty of the driver to ensure that the vehicle is parked on the parking area
and the parking light is switched on, but, there is no evidence to prove the
same. Hence, we are of the opinion that negligence is in a greater extent on
the part of the driver of the Lorry. Therefore, by relying upon the FIR and
evidence on both sides, this Court fixes contributory negligence and the
liability is fixed 70% on the part of the driver of the Lorry and 30% on the
part of the deceased.
11. The Tribunal has awarded a sum of Rs.29,50,000/- as
compensation. Since the liability is fixed 70% on the part of the driver of
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the Lorry, the appellant/Insurance Company is liable to pay a sum of
Rs. 20,65,000/- (70% of Rs.29,50,000/-) to the claimants. Further, as the
accident had occurred in the year 2012 and the award came to be passed in
the year 2012, the interest is reduced from 8% to 7.5%. In the result, the
claimants are entitled for a sum of Rs.20,65,000/- with 7.5% interest per
annum from the date of claim petition till the date of deposit.
12. In view of the above modifications, the Civil Miscellaneous
Appeal is partly allowed. The appellant Insurance Company is directed to
deposit the above modified award amount with accrued interest and costs,
less the amount already deposited, if any, within a period of eight weeks
from the date of receipt of a copy of this order. On such deposit, the
claimants 1, 2, 3, 5 and 6 are permitted to withdraw the award amount, less
the amount already withdrawn, if any, together with proportionate interest
and costs. Insofar as the fourth claimant / minor child is concerned, his
share shall be deposited by the Tribunal in any Fixed Deposit Scheme in
any one of the Nationalised Banks and it shall be renewed periodically till
he attains majority and the interest accrued thereon shall be withdrawn by
the first claimant / mother once in three months. The apportionment of
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shares as fixed by the Tribunal to the claimants is hereby confirmed.
No costs. Consequently, connected Miscellaneous Petitions are closed.
[M.K.K.S, J] [V.S.G., J]
24.08.2021
Index : Yes / No
Speaking order: Yes/No
pvs
To
1. The Principal District Court, Cuddalore
2. The Section Officer,
V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
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C.M.A. No.1256 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
pvs
C.M.A. No.1256 of 2021
24.08.2021
https://www.mhc.tn.gov.in/judis/
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