Madras High Court
Shriram General Insurance Co. Ltd vs K.Vijayarani on 24 August, 2021
C.M.A. No.1256 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
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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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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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 any documentary
evidence. In fact, the driver of the two wheeler hit the Lorry at a hectic speed
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C.M.A. No.1256 of 2021
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.
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
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C.M.A. No.1256 of 2021
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 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
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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 shares as fixed by the Tribunal to
the claimants is hereby confirmed No costs. Consequently,
connected Miscellaneous Petitions are closed.
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[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.
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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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