M/S.Royal Sundaram General ... vs R.Kavitha
2021 Latest Caselaw 23754 Mad

                                                                                CMA.No.1576 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                 DATED: 03.12.2021
                                                       CORAM:
                                  THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
                                                 CMA.No.1576 of 2020
                                               and CMP.No.11615 of 2020
                                            and Cros.Objection.No.67 of 2021

                     M/s.Royal Sundaram General Insurance
                                      Company Limited,
                     Sundaram Towers, No.45 & 46,
                     Whites Road, Chennai – 600014.                                  ...Appellant

                                                          Vs.

                     1.R.Kavitha

                     2.R.Rajendran

                     3.T.J.Institute of Technology,
                       IT Highways, Karapakkam,
                       Chennai – 600 096.                                         ..Respondents

                     Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
                     Vehicles Act, against the judgment and decree in MCOP.No.2820 of 2014
                     dated 17.12.2019, on the file of teh Motor Accident Claims Tribunal, II /
                     Special Sub-ordinate Judge, Chennai.
                                         For Appellant       : Ms.C.Harini
                                         For Respondents     : Mr.R.Kalaiarasan for R1 & R2




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https://www.mhc.tn.gov.in/judis
                                                                                   CMA.No.1576 of 2020

                                                  JUDGMENT

The Insurance Company is on appeal, questioning the award of

the Tribunal made in MACTOP.No.2820 of 2014. The claimants, who are

the parents of the deceased, who was a Post Graduate Engineering student

aged about 24 years sought compensation for the death of their son.

Contending that they have been deprived of their only son, the parents

claimed Rs.36,00,000/- as compensation.

2.According to the claimants, when the deceased was driving his

two wheeler bearing Registration No.TN-32-F-8440 at SRP Tools Junction

on the Old Mahabalipuram road, the bus belonging to the 2 nd respondent,

which had stopped for pedestrians to cross, suddenly moved towards right,

which resulted in the deceased losing control of the bike and colliding

against the bus. As a result of the accident, the deceased suffered severe

injuries and he died on the spot. Contending that the accident occurred due

to the rash and negligent manner, in which the driver of the bus moved the

bus towards the middle of the road, without any signal, the claimants would

claim that the driver of the bus was responsible for the accident.

3.The claim was resisted by the Insurance Company contending

https://www.mhc.tn.gov.in/judis CMA.No.1576 of 2020

that the accident did not occur in the manner suggested by the claimants.

The Insurance Company also relied upon the First Information Report

lodged, which shows that the deceased was responsible for the accident.

The quantum of compensation claimed was also termed as excessive, since

the deceased was only a student.

4.Before the Tribunal, the 1st claimant, the mother of the deceased

was examined as PW1 and one Manikandan, eye witness to the accident

was examined as PW2. Exs.C1 to C13 were marked on the side of the

claimants. On the side of the respondents, the Head Constable was

examined as RW1 and the First Information Report was marked as Ex.R1.

The Tribunal, on a consideration of the evidence on record concluded that in

the absence of examination of the person, who gave the complaint, the

contents of the First Information Report cannot be taken as correct. The

Tribunal also relied upon the judgment of the Hon'ble Supreme Court in

New India Assurance Company Ltd., Vs. Manimaran reported in 2008

(2) TN MAC 137 wherein, the Hon'ble Supreme Court had held that oral

evidence of an eye witness that is tested by cross-examination, should be

https://www.mhc.tn.gov.in/judis CMA.No.1576 of 2020

preferred to evidence offered by the First Information Report more so, when

the complainant or the informant was not examined. Applying the above

principle, the Tribunal refused to take into account the information given in

the First Information Report and accepted the evidence of PW2 /

Manikandan to conclude that the accident had occurred due to the rash and

negligent driving of the bus also. Finding that both the deceased as well as

the bus driver were responsible for the accident, the Tribunal apportioned

the contributory negligence at 50% each.

5.On the quantum, the Tribunal took monthly income of the

deceased at Rs.20,000/-, adopting future prospects at 40% and deducted

50% towards personal expenses and Rs.8,600/- towards income tax, it

adopted a multiplier of 18 and arrived at the total loss of dependency at

Rs.29,46,600/-. The Tribunal awarded a sum of Rs.15,000/- for loss of

estate, Rs.15,000/- for funeral expenses and Rs.80,000/- for loss of

consortium. Thus, the total compensation awarded by the Tribunal worked

out to Rs.30,56,600/-. Since the Tribunal had held that the deceased had

contributed to the accident and the contributory negligence on his part was

https://www.mhc.tn.gov.in/judis CMA.No.1576 of 2020

fixed at 50%, the Tribunal directed the Insurance Company to pay a sum of

Rs.15,28,300/-. Aggrieved, the Insurance Company has come up with this

appeal.

6.Heard Ms.C.Harini, learned counsel appearing for the Insurance

Company and Mr.R.Kalaiarasan, learned counsel appearing for the

claimants / respondents 1 and 2.

7.Ms.C.Harini, learned counsel appearing for the Insurance

Company would vehemently contend that the Tribunal was not right in

rejecting the evidence offered by the First Information Report and the final

report filed by the police. She would submit that those documents, which

had emanated immediately after the accident and the First Information

Report has been given by the by-stander, should have been given more

weightage than the oral evidence of an eye witness. The learned counsel

would further contend that the Tribunal was not justified in taking the

monthly income at Rs.20,000/-. The deceased was only pursuing his post

graduation and he was not an earning member therefore, according to the

https://www.mhc.tn.gov.in/judis CMA.No.1576 of 2020

learned counsel, fixation of Rs.20,000/- as monthly income, addition of 40%

towards future prospects had resulted in compensation being boosted up.

8.Contending contra, Mr.R.Kalaiarasan, learned counsel appearing

for the respondents / claimants 1 and 2 would submit that the Tribunal was

justified in rejecting the First Information Report. He would point out that

the First Information Report has been lodged by an employee of the

Institution, which owned the bus that was involved in the accident.

Therefore, according to the learned counsel, the contents of the First

Information Report cannot be taken on its face value. The learned counsel

would also add that in the judgment in National Insurance Company Ltd.,

Vs. Chamundeswari and others reported in 2021 (2) TN MAC 449 (SC),

the Hon'ble Supreme Court has held that more weightage should be given to

the evidence of the eye witness, who is examined before the Court and

subject to cross-examination than the contents of the First Information

Report, which is not supported by oral evidence. The learned counsel would

also submit that the Tribunal has relied upon atleast three decisions of this

Court to come to the conclusion that the monthly income can be fixed at

https://www.mhc.tn.gov.in/judis CMA.No.1576 of 2020

Rs.20,000/- per month. He would also submit that the deceased was an

Engineering Graduate and considering the fact that the accident had taken

place in the yer 2014, the Tribunal was justified in fixing the monthly

income at Rs.20,000/-. I have considered the rival submissions.

9.No doubt, the First Information Report blames the rider of the

two wheeler / deceased entirely for the accident. The charge sheet was also

filed against the deceased. As rightly pointed out by the claimants /

respondents, the First Information Report was lodged by the employee of the

owner of the bus that was involved in the accident. The said employee was

not examined before the Tribunal. There is no evidence in respect of the said

First Information Report. On the other hand, the witness namely, CW2,

Manikandan, who was examined as eye witness was subjected to cross-

examination by the counsel for the Insurance company and the Tribunal has

found that his evidence is trust worthy and the same could be believed. I

am, therefore, unable to fault the Tribunal for having rejected the First

Information Report and taken the evidence of PW2 as the basis for deciding

the question of negligence. Therefore, I do not see any reason to interfere

https://www.mhc.tn.gov.in/judis CMA.No.1576 of 2020

with the conclusion of the Tribunal in fixing the contributory negligence at

50% on the driver of the bus as well the deceased.

10.On the quantum, the Tribunal had taken Rs.20,000/- as

monthly income. Ms.C.Harini, learned counsel appearing for the Insurance

Company would vehemently contend that the monthly income of

Rs.20,000/- is on the higher side, considering the fact that the accident had

occurred in the year 2014. Admittedly, the claimant was an Engineering

Graduate, he was pursuing Post Graduate Engineering course at the time of

the accident and he was only aged 24 years. His parents have been deprived

of their only son because of the accident. May be, he had contributed to the

accident but considering the pain of the parents and the fact that the

deceased was aged about 24 years old at the time of the accident, I do not

think that the Tribunal could be faulted for taking the monthly income at

Rs.20,000/- per month. There was every chance of the deceased earning

more than that also. Therefore, considering the uncertainities involved, I do

not think that the fixation of Rs.20,000/- as monthly income could be said to

be on the higher side. The Tribunal has taken 40% for future prospects, it

https://www.mhc.tn.gov.in/judis CMA.No.1576 of 2020

has deducted 50% towards personal expenses and made a further deduction

of Rs.8,600/- towards income tax, which is not the normal practice. The

Tribunal has also directed 50% of total compensation towards the

contributory negligence, which has resulted in the claimants being awarded

only a sum of Rs.15,28,300/-.

11.No doubt, we can fault the reasonings of the Tribunal while it

awarded a compensation of each and every head but if we look at the over

all compensation, I do not think it could be termed as high or excessive.

Hence, I do not see any reason to interfere with the award of the Tribunal.

This civil miscellaneous appeal therefore, dismissed. No costs. The

respondents / claimants have also filed a cross-objection claiming that the

compensation is low and faulting the Tribunal for fixing the contributory

negligence at 50%. Since I have held that the award is reasonable, the

Cross-objection stands dismissed.

03.12.2021

kkn Index:No Internet:Yes Speaking

https://www.mhc.tn.gov.in/judis CMA.No.1576 of 2020

R.SUBRAMANIAN, J.

KKN

To:-

1.The Motor Accident Claims Tribunal, II- Special Sub-ordinate Court, Chennai.

CMA.No.1576 of 2020 and CMP.No.11615 of 2020 and Cross.Objection.No.67 of 2021

03.12.2021

https://www.mhc.tn.gov.in/judis