Madras High Court
M/S.The New India Assurance ... vs Krishnamoorthy on 8 December, 2021
C.M.A.(MD) No.315 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A(MD)No.315 of 2021
and
C.M.P(MD)No.2620 of 2021
M/s.The New India Assurance Company Ltd.
Rep.by its Branch Manager,
Having Branch Office at 43-A/2,
Promenade Road,
Caontonment
Trichy – 620 001. ... Appellant / Respondent No.2
Vs.
1.Krishnamoorthy
2.Chikkammal
3.Minor Prathiba ... Respondents 1 to 3 /
Petitioners 1 to 3
4.S.Thangan ... 4th Respondent / 1st Respondent
*( R3 Minor is represented through
her Father and next friend R1)
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the Judgment and Award made in M.C.O.P.No.739 of
2015, dated 09.06.2020, on the file of the Motor Accidents Claims Tribunal,
Special District Judge, Tiruchirappalli.
1/12
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C.M.A.(MD) No.315 of 2021
For Appellant : Mr.D.Sivaraman
For Respondents : N.Sudagar Nagarajan
JUDGMENT
S.VAIDYANATHAN,J.
and
DR.G.JAYACHANDRAN,J.
The appeal is filed by the Insurance Company being aggrieved by the
Award of the Motor Accidents Claims Tribunal, passed in favour of the
claimants both on quantum as well as negligence.
2. The facts of the case is that on 17.11.2014, at about 3.45 p.m.,
near Kunnumedu, Edumalai Road, Thirupattur, the motorcycle bearing
Registration No.TN-48-2-7822, driven by one Sathish S/o.Krishnamoorthy,
met with an accident by dashing against a Car, bearing Registration
No.TN-48-V-5109, which was insured under the appellant Insurance
Company.
3. A claim petition was filed seeking compensation of Rs.36,00,000/-
by the parents and the minor sister of the deceased Sathish, who
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C.M.A.(MD) No.315 of 2021
succumbed to the injuries on 22.11.2014. In the claim petition it was
pleaded by the claimants that at the time of accident, the deceased was
earning a sum of Rs.15,000/- per month, as Trailer Operator, in
M/s.Namakkal Transport Career Pvt.Ltd., Chennai and the accident
occurred due to rash and negligent driving of the car, bearing Registration
No.TN-48-V-5109, which was coming from the opposite direction that is
from west to east.
4. The claim petition was contested by the Insurance Company,
denying the negligence on the part of the driver of the car, which was
insured with their Company. Contrarily, it is the case of the Insurance
Company that the deceased was riding the two wheeler in a drunken state
with hectic speed. He was driving his vehicle in a zigzag manner losing the
control and dashed the Maruthi Car, bearing Registration No.TN-48-
V-5109. Therefore, the claimants, who are dependents of the deceased,
cannot have the advantage of getting compensation for the wrong done by
the deceased, who is the tortfeasor. It is pleaded by the Insurance
Company that Siruganur Police, soon after the accident, alleging that the
deceased Sathish was riding the two wheeler in a rash and negligent
driving manner, registered the First Information Report against him in
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C.M.A.(MD) No.315 of 2021
Crime NO.353 of 2014, under Sections 279 and 337 IPC. However, the
case got abated, since the two wheeler rider Sathish died subsequently.
5. Further, on the quantum of claim, it was contended by the
Insurance Company that the claimants have no proof for the income of the
deceased at Rs.15,000/- per month and therefore, the claim of Rs.
36,00,000/- for the death of 23 years old bachelor is untenable.
6. Before the Tribunal, the claimants relied upon 9 documents, as
Exs.P1 to P9, examined 3 witnesses, as P.W.1 to P.W.3. On behalf of the
respondent Insurance Company 2 witnesses were examined as R.W.1 and
R.W.2 and one exhibit was marked as Ex.R1. The attested copy of the
Accident Register for the deceased Sathish was called for and marked as
Ex.X1.
7. The Tribunal taking note of the driving licence in the name of the
deceased and his SSLC qualification, fixed his monthly income notionally at
Rs.8000/., applying the principle laid down by the Hon'ble Supreme Court
in National Insurance Company Ltd., Vs. Pranay Sethi and Others
reported in (2017 MACD 137), after adding 40% towards the future
prospects and deducting 1/3rd for his personal expenditure, fixed Rs.
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C.M.A.(MD) No.315 of 2021
16,12,872/- for loss of dependency. In Addition, for loss of consortium, a
sum of Rs.1,20,000/- was awarded. In Addition an another Rs.1,00,000/-
under the head love and affection was awarded.
8. In this appeal, the counsel for the appellant raised a pointed
ground in respect of negligence that the Tribunal has failed to take note of
the fact that the Accident Register marked as Ex.X1 indicates that the
patient was unconscious, smell of Alcohol in his breath and the rough
sketch, which form part of Ex.R1, shows that the rider of the two wheeler,
while riding on the wrong side, had hit the Maruthi Car. When the
deceased is the tortfeasor, his dependents cannot take advantage and seek
compensation. That apart, regarding quantum, the learned counsel for the
appellant would submit that the notional income of Rs.8000/- itself is
without any basis, since except the driving licence Ex.P9, which is only for
LMV and not for operating Trailer, as alleged by the claimants, the notional
income ought to have been Rs.6000/- per month. Also the learned counsel
would submit that it is well settled principle of law that while determining
the loss of dependency, if the deceased is a bachelor, 50% of his income
should be deducted for his personal expenditure, whereas in this case, the
Tribunal has deducted only 1/3rd , which is on the face erroneous.
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C.M.A.(MD) No.315 of 2021
9. Per contra, the learned counsel appearing for the respondents /
claimants would submit that the rough sketch prepared by the Police is not
a conclusive proof for negligence. Further, the FIR was registered while
the deceased was taken to the hospital in an unconscious stage and died in
Coma after few days of the accident. Since the first respondent in the
claim petition, who is the owner of the Maruthi Car, being an influential
person, the FIR was registered against the deceased after a day of the
accident. The criminal prosecution or complaint will have no bearing on
the claim petition filed under the Motor Vehicles Act, 1988, therefore would
submit that the Award of the Tribunal has to be confirmed.
10. On considering the rival submissions made on behalf of the
respective parties and on perusing the record, this Court finds that fixation
of notional income of Rs.8000/- for a boy, aged about 22 yeas, holding LMV
licence is not excessive, since the accident is of the year 2014. However,
on considering the other material facts before us like the Case Diary in
Crime No.353 of 2014 registered in respect of the said road accident by the
Siruganur Police, marked as Ex.R1, and the Accident Register Ex.X1, we
find that the accident has took place due to the negligence of the deceased,
who was under intoxication while driving the two wheeler, went other side
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C.M.A.(MD) No.315 of 2021
of the road loosing balance and hit the Maruthi Car insured under the
appellant.
11. As the learned counsel for the appellant rightly pointed out that
the claim petition is filed under Section 166 of the Motor Vehicles Act,
therefore, the negligence has tobe proved by the claimants, when it is
specifically denied by the Insurance Company in their counter. Unlike the
petition is filed under Section 163(a) of the Motor Vehicles Act., or under
Section 140 of M.V.Act., no fault liability, it is the burden of the claimant to
prima facie prove that the negligence was on the part of the offending
vehicle.
12. This Court has no difficulty in agreeing with the said legal
principle, but however, in the present case, except the accident register
and the case diary, which gives an inference about the contributory
negligence on the part of the deceased, we are unable to accept the plea of
the counsel representing the appellant that the accident was entirely due
to the negligence of the deceased. Therefore, this Court is of the view that
certain percentage for contribution can be deducted, but the claimants
cannot be totally deprived just because the deceased had driven the vehicle
on the wrong side of the road, under influence of alcohol.
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C.M.A.(MD) No.315 of 2021
13. Apart from the error in fixing negligence, this Court also find that
the Tribunal had erred in deducting only 1/3rd of the income instead of 50%
towards personal expenditures of the deceased bachelor. Also we find,
awarding Rs.1,20,000/- towards the loss of consortium for the parents and
sister, the Tribunal has also awarded a sum of Rs.1,00,000/-, which is
nothing but duplication for the loss of consortium.
14. Therefore, for the above said reasons, the Award of the Tribunal
requires interference and modifications. Accordingly, the same is modified
as below:-
Amount Amount
S.No. Description Awarded by Awarded by Award status
Tribunal this Court
1 Loss of Income 16,12,872 12,09,600 Reduced
2 Loss of Consortium to 1,20,000 1,20,000 Confirmed
claimants 1 to 3
3 Love and Affection 1,00,000 - Not Granted
4 Loss of Estate 15,000 15,000 Confirmed
4 Funeral Expenses 15,000 15,000 Confirmed
5 Transportation 6,000 6,000 Confirmed
Expenses
TOTAL 18,68,872 13,65,600
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C.M.A.(MD) No.315 of 2021
15. Since there is contributory negligence on the part of the
deceased for the accident, 25% of the Award amount is to be deducted
from the total compensation and after deducting 25%, the total
compensation is arrived at Rs.10,24,200/-. Thus, the Award of the
Tribunal is modified and restricted to a sum of Rs.10,24,200/- payable with
interest at 7.5% p.a., from the date of claim till the date of realization.
16. In the result, the Civil Miscellaneous Appeal is partly allowed and
the amount awarded by the Tribunal is reduced to Rs.10,24,200/- from Rs.
18,68,872/-. The appellant Insurance Company is directed to deposit the
Award amount, now fixed by this Court, less the amount already deposited,
if any, with interest at 7.5% p.a., from the date of claim petition till the
date of deposit, in M.C.O.P.No.739 of 2015, on the file of the Motor
Accident Claims Tribunal, Special District Judge, Tiruchirappalli, within a
period of eight weeks from the date of receipt of a copy of this order, if not
already deposited. On such deposit is being made, the claimants are
permitted to withdraw their share in the award amount together with
proportionate accrued interest and costs, in equal apportionment, by filing
necessary application before the Tribunal. If the entire Award amount is
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C.M.A.(MD) No.315 of 2021
already deposited, the appellant Insurance Company is permitted to
withdraw the excess award amount with accrued interest. No order as to
costs in the appeal. Consequently, the connected miscellaneous petition is
closed.
[S.V.N.,J.] [G.J.,J.]
08.11.2021
Index : Yes / No
Internet : Yes / No
MPK
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.315 of 2021
To
1.The Motor Accidents Claims Tribunal,
Special District Judge,
Tiruchirappalli.
2. The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.315 of 2021
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
MPK
JUDGMENT MADE IN
C.M.A(MD)No.315 of 2021
08.12.2021
https://www.mhc.tn.gov.in/judis
