Madras High Court
The Branch Manager vs Jayalakshmi on 26 August, 2021
C.M.A.No.3985 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
C.M.A.No.3985 of 2019 and
C.M.P.No. 22523 of 2019
The Branch Manager,
Reliance General Insurance Co. Ltd.,
Shri Lakshmi Complex, 1st Floor,
Bharathi Street, Omalur Main Road,
Swarnapuri, Salem. .. Appellant
Vs.
1. Jayalakshmi
2. Kumarasamy
3. Aruna
4. Anitha
5. Anandhi
6. Sriram
7. Sivakumar
8. Sivalingam
9. The Branch Manager,
The Royal Sundaram Alliance Insurance Co. Ltd.,
8/H1, Managalam Bulding, 4 Roads,
Salem. ...Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
07.02.2018 made in M.C.O.P.No.100 of 2015 on the file of the Motor
Accident Claims Tribunal, III Additional District Court, Kallakurichi.
1/11
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C.M.A.No.3985 of 2019
For Appellant : Mr.S. Arun Kumar
For Respondents : Mr.T. Dhanasekaran (R1 to R6)
: Mr.M.B.Ragavan (R9)
No appearance (R7 & R8)
*****
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the
fixation of liability and quantum of compensation granted by the Tribunal in
the award dated 07.02.2018 made in M.C.O.P.No.100 of 2015 on the file of
the Motor Accident Claims Tribunal, III Additional District Court,
Kallakurichi.
2.The Appellant is the Second Respondent in M.C.O.P.No.100 of
2015 on the file of Motor Accident Claims Tribunal, III Additional District
Court, Kallakurichi. The Claimants, who are the Mother, Father, Sisters and
brother filed the above claim petition, claiming a sum of Rs.20,00,000/- as
compensation for the death of one Laksmanan, who died in an accident that
took place on 01.07.2011.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
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C.M.A.No.3985 of 2019
the driver of the 1st Respondent and directed the 2nd Respondent-Insurance
Company to pay a sum of Rs.16,10,200/- as compensation to the Claimants.
4. Challenging the fixation of liablity and compensation awarded by
the Tribunal, Appellant/Insurance company has come out with the present
Appeal.
5. It is contended by the learned counsel for the Appellant that the
Tribunal on considering the evidence of P.W.1-mother of the deceased, who
is not an eyewitness to the accident and by considering Ex.P1-F.I.R, has
wrongly fixed liablity on the Appellant. He further submitted that FIR is a
substantive piece of evidence and it cannot be placed on pedestal higher than
the statement on oath and the F.I.R. could be used in Criminal case for
corroboration or for contradiction and the contents of the F.I.R. cannot be
taken as a gospel truth. In support of his contention he relief upon the
Judgment of this Court in the case of Maya Azhagar and another Vs.
Thangiah and another reported in 2011 (2) TN MAC 391. He further
submitted that there must be a sufficient gap between two vehicles which
were travelling in the road and since the driver of the deceased vehicle has
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C.M.A.No.3985 of 2019
not maintained proper distance while travelling, the accident said to have
been taken place. In support of his contention he relied upon the Judgment of
the Hon'ble Supreme Court in the case of Nishan Singh Versus Oriental
Insurance Company Limited reported in 2018 6 SCC 765.
6. The learned counsel for the Claimants/Respondents 1 to 6
submitted that the vehicle bearing Registration No.AP 03/W-7794, which was
driven in the same direction in which the deceased vehicle viz., TN 30/Q
2949 was travelling, without any indicator light stopped the vehicle suddenly
on the road in a rash and negligent manner and due to which, the deceased
lorry could not control the speed and dashed against the rear side of the lorry
trailer, which resulted in the death of the deceased. Therefore, he submitted
that if the indicator light have been switched on, the accident could have
been avoided. He further submitted that the all the respondents are jointly or
severally liable to pay compensation.
7. It is submitted by the learned counsel appearing for the Nineth
Respondent that the Tribunal on considering both the oral and documentary
evidence has rightly come to the conclusion that since the driver of the First
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C.M.A.No.3985 of 2019
Respondent has not switched on indicator light and stopped the vehicle
suddenly in the road, the driver of the eighth respondent could not control the
speed and therefore the accident has occurred. Since the vehicle in which the
deceased was a cleaner, have been insured with the Appellant/Insurance
company, the Appellant/Insurance company is liable to pay the entire
compensation and the Tribunal has rightly foisted liability on the
Appellant/Insurance Company and the Nineth Respondent is not liable to pay
the compensation.
8. Heard the learned counsel appearing for the Appellant/Insurance
Company, Respondents 1 to 6/Claimants as well as the learned counsel
appearing for the 9th Respondent. Perused the materials available on record.
9. It is not in dispute that the deceased was a 18 year old boy at the
time of accident and succumbed due to grievous injuries that occurred in the
accident. It is no doubt true that there is no evidence before the Tribunal,
except F.I.R and the evidence of P.W.1., who is not an eyewitness to the
accident. As rightly contended by the learned counsel for the Appellant that
contents of the F.I.R. cannot be taken as a gospel truth and in the Judgment
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C.M.A.No.3985 of 2019
relied on by the learned counsel for the Appellant in Maya Azhagar and
another Vs. Thangiah and another reported in 2011 (2) TN MAC 391, it
was held that the FIR is a substantive piece of evidence and it cannot be
placed on pedestal higher than the statement on oath. The first information
report could be used in Criminal case for corroboration or for contradiction.
Therefore, in the present case on hand, the contents of the F.I.R. cannot be
taken as a ground to foist liability on the Appellant.
10. Further, the gap between the two vehicles got to be maintained
interms of Regulation 23 of the Road Regulations Rules, 1989. For the sake
of convenience, the same is extracted hereunder:
“23. Distance from vehicles in front- The
driver of a motor vehicle moving behind
another vehicle shall keep at a sufficient
distance from that other vehicle to avoid
collision if the vehicle in front should
suddenly slow down or stop”.
11. Further, the driver shall not apply brake suddenly unless there is
any defects or in emergency situation. In the present case on hand, there was
no defects and there was no emergency situation. Further from the reading
of the F.I.R the evidence of P.W.1. clearly shows that proper gap was not
maintained between two vehicles, which resulted in the death of the
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C.M.A.No.3985 of 2019
deceased. Hence, this Court is of the view that both the vehicles are
responsible for the accident.
12. Taking note of the present facts and circumstances of the case,
this Court fix 70% liability on the Appellant/insurance company and 30% on
the 9th Respondent/Insurance company.
13. Insofar as the quantum of compensation is concerned, it was stated
that the deceased was a lorry cleaner at the time of accident and was earning a
sum of Rs.10,000/- per month. But no proof has been marked to that effect.
The Claims Tribunal has fixed the notional income of the deceased at Rs,
6,000/- per month which this Court feels is very meagre. The accident is of
the year 2011 and the cost of living has increased enormously and salary of
even unskilled workers has increased substantially. Hence, a sum of
Rs.7,000/- per month is fixed as monthly income of the deceased and as per
Judgment of the National Insurance Company Ltd., Vs Pranay Sethi”
reported in, SLP No. 25590/2014, 40 % is awarded towards future prospects
is awarded and by adding the same, since the deceased was a bachelor at the
time of accident, by deducting 1/2 towards personal expenses and by
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C.M.A.No.3985 of 2019
adopting multiplier 18, as per the Judgment of the Hobourable Apex Court, in
the case of “Sarla Verma Vs Delhi Transport Corporation, reported in,
(2009) 4 MLJ 997, the compensation towards Loss of dependency of the
deceased is reduced to Rs. 10,58,400/-(7000 + 40% x 12 x18-1/2).
14. Taking note of the fact that Respondents 1 & 2 lost their son in the
accident, as per the Judgment of the Hon'ble Supreme Court in the case of
Magma General Insurance Co. Ltd. V. Nanu Ram & Ors reported in (2018)
18 SCC 130, a sum of Rs.80,000/- is awarded towards Filalial Consortium
to the parents and the compensation awarded towards Loss and Affection is
set aside.
15. By taking note of the fact that the deceased died at the age of 18 ,
this Court feels that compensation towards Loss of Estate can be granted and
hence a sum of Rs.15,000/- is granted under the said head.
16. Further, the compensation awarded towards funeral expenses is
reduced to Rs.15,000/-.
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C.M.A.No.3985 of 2019
17. The compensation awarded by the Tribunal is modified as follows:
S. Description Amount Amount Award confirmed
No awarded by awarded by this or enhanced or
Tribunal Court granted
(Rs) (Rs)
1. Loss of dependency 15,55,200/- 10,58,400/- Reduced
2. Parental consortium Nil 80,000/- Granted
3. Loss of Estate Nil 15,000/- Granted
4. Funeral expenses 25,000/- 15,000/- Reduced
5. Loss of love and
affection 30,000/- Nil Set aside
TOTAL Rs.16,10,200/- Rs.11,68,400/- Reduced by
Rs.4,41,800/-
18. In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.16,10,200/- is hereby
reduced to Rs.11,68,400/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. Out of the
compensation now granted by this Court, the First Respondent is entitled to a
sum of Rs.6,00,000/- and the Respondents 2 to 6 are entitlted to a sum of
Rs.1,13,680/- each. The Appellant/Insurance Company shall deposit 70%
of the compensation amount, and 9th Respondent/Insurance company is
directed to deposit 30% of the compensation amount now determined by this
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C.M.A.No.3985 of 2019
Court, along with 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
judgment to the credit of M.C.O.P.No.100 of 2015 on the file of the Motor
Accident Claims Tribunal,III Additional District Court, Kallakurichi. On
such deposit being made, the Tribunal is directed to transfer the Award
amount, as per the shares apportioned above, directly to the Bank account of
the Respondents 1 to 6/Claimants through RTGS, within a period of two
weeks. No costs. Consequently connected Miscellaneous Petition is Closed.
26.08.2021
arr/shk
Index : Yes / No
Internet : Yes / No
To
1. Motor Accident Claims Tribunal,
III Additional District Court,
Kallakurichi
2.The Section Officer,
VR Section,
High Court,
Madras.
S.VAIDYANATHAN, J.
arr/shk
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C.M.A.No.3985 of 2019
C.M.A.No.3985 of 2019
26.08.2021
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