Madras High Court
K.Punithavalli vs V.Kasinathan on 15 December, 2021
C.M.A.Nos.935 of 2020 & 3391 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.12.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. No.935 of 2020 &
C.M.A.No.3391 of 2021 & C.M.P.No.19559 of 2021
(Heard through VC)
C.M.A.No.935 of 2020
1.K.Punithavalli
2.L.Rayar
3.R.Kanniammal
4.K.Sakthiguru
Minor represented by mother, 1st appellant,
All are residing at
Indra Nagar, Thunichiramedu Village,
Veeracholagan Post,
Chidambaram Taluk. ... Appellants
Vs.
1.V.Kasinathan
2.National Insurance Company Limited,
D.T.K.Complex,
55, Melatheru,
Chidambaram. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988 against the judgment and decree made in M.C.O.P.No.29 of
2018, on the file of II Additional District and Sessions Judge, Chidambaram,
dated 02.07.2019.
https://www.mhc.tn.gov.in/judis
Page No.1/10
C.M.A.Nos.935 of 2020 & 3391 of 2021
For Appellants : Mr.S.Udayakumar
For Respondents : Mr.D.Bhaskaran for R2
***
C.M.A.No.3391 of 2021
National Insurance Company Limited,
D.T.K.Complex,
55, Mela Street,
Chidambaram. ... Appellant
Vs.
1.K.Punithavalli
2.L.Rayar
3.R.Kanniammal
4.K.Sakthiguru
S/o.Late R.Kalaimani,
(Minor represented by guardian
Mother Punithavalli)
All are residing at
Indra Nagar, Thunichiramedu Village,
C.Veeracholagan Post,
Chidambaram Taluk.
5.V.Kasinathan ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988 against the judgment and decree made in M.C.O.P.No.29 of
2018, on the file of II Additional District and Sessions Judge, Chidambaram,
dated 02.07.2019.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.S.Udayakumar for R1 to R4
***
https://www.mhc.tn.gov.in/judis
Page No.2/10
C.M.A.Nos.935 of 2020 & 3391 of 2021
COMMON JUDGMENT
Judgment of the Court was delivered by V.SIVAGNANAM. J.
Being not satisfied with the award passed by the Motor Accident Claims
Tribunal, II Additional District and Sessions Judge, Chidambaram, the
claimants have come up with the appeal in C.M.A.No.935 of 2020, seeking
enhancement of compensation. Challenging the award passed by the Tribunal,
the Insurance Company preferred the appeal in C.M.A.No.3391 of 2021. Since
both the appeals arise out of the award passed by the Motor Accident Claims
Tribunal, II Additional District and Sessions Judge, Chidambaram, in
M.C.O.P.No.29 of 2018, they are heard together and disposed of by this
Common Judgment.
2. The brief facts of case of the claimants before the Tribunal are as
follows:-
This is a case of fatal accident. The claimants are the wife and children
of the deceased Kalaimani. On 25.11.2017, the deceased Kalaimani was
proceeding in a two wheeler bearing registration No.TN-91-B-1390 on
T.Neduncheri-Chidambaram Main Road. At that time, the rider of the
motorcycle bearing registration No.TN-61-5916, came in a high speed and
dashed against him. Due to the accident, the deceased sustained fatal injuries
https://www.mhc.tn.gov.in/judis
Page No.3/10
C.M.A.Nos.935 of 2020 & 3391 of 2021
and died on the way to Hospital. It is alleged that the accident had taken
place due to the rash and negligent rider of the vehicle bearing registration
No.TN-61-5916, the legal heirs of the deceased have filed a claim petition,
claiming compensation of Rs.1,40,00,000/-.
3. In the counter, the Insurance Company denied and disputed the
manner of accident, age, avocation and income of the deceased and its
liability to pay the compensation.
4. The claim petition was tried by the Tribunal and to substantiate the
case, on the side of the claimants P.W.1 to P.W.3 were examined and Ex.P1 to
Ex.P16 were marked. On the side of the Insurance Company, R.W.1 to R.W.3
were examined and Exs.R1 to R9 were marked.
5. The Tribunal, upon consideration of all the oral and documentary
evidence held that the rider of the offending motorcycle bearing registration
No.TN-61-5916 was responsible for the accident and also found that there is
violation of policy condition. Therefore, while awarding compensation of a sum
of Rs.23,72,600/- together with interest at 7.% p.a to the claimants, the
Tribunal directed the insurance company to satisfy the award amount at the
first instance and thereafter recover the same from the owner of the
https://www.mhc.tn.gov.in/judis
Page No.4/10
C.M.A.Nos.935 of 2020 & 3391 of 2021
motorcycle bearing registration No. TN-61-5916. As afore-stated, both the
claimants as well as the Insurance Company have filed these appeals.
6. The learned counsel for the insurance company Mr.D.Bhaskaran
submitted that the Tribunal failed to note that this is a case of head on
collision, but instead of fixing the contributory negligence on the part of the
deceased, fixed the entire negligence upon the rider of the offending vehicle
bearing registration No. TN-61-5916. It is further contended that at the time of
accident, the deceased and two pillion riders were under the influence of
alcohol and therefore, the Tribunal ought to have easily presume that
imbalance caused the accident. It is next argued that the amount awarded by
the Tribunal is excessive.
7. Per contra, the learned counsel for the claimants Mr.S.Udayakumar
would contend that the deceased was the only earning member of the family
and the entire family is depending upon the income of the deceased. As per
Ex.P12 salary slip, the deceased was earning a sum of Rs.21,854/- per month,
but the Tribunal without appreciating the same, fixed the income of the
deceased at Rs.9,000/- per month. Hence, the learned counsel seeks for
enhancement of compensation.
https://www.mhc.tn.gov.in/judis
Page No.5/10
C.M.A.Nos.935 of 2020 & 3391 of 2021
8. We have heard the rival submissions on either side and perused the
materials available on record.
9. In the instant case, it is not in dispute that the deceased Kalaimani
met with an accident on 25.11.2017 and succumbed to the injuries. It is
equally not disputed that the claimants are the legal heirs of the deceased.
According to the claimants, when the deceased Kalaimani was proceeding in a
motorcycle bearing registration No.TN-91-B-390 on 25.11.2017, the rider of the
offending vehicle bearing registration No. TN-61-5916, came in a high speed
and dashed against the deceased.
10. It is the case of the Insurance Company that in the two wheeler,
which was ridden by the deceased, three persons were travelled, that too
under the influence of liquor, therefore, they are also responsible for the
accident. P.W.3 is the eyewitness to the incident and he has spoken about the
manner of the accident in his evidence. The Insurance Company relies on
Exs.R8 and R9 in support of their case. A perusal of Ex.R8 and R9 Accident
Registers, would show that the pillion riders were under the influence of
alcohol. The evidence adduced on the side of the Insurance Company would
prove that deceased has also contributed to some extent for the accident. It
is an admitted fact that at the time of accident, three persons travelled in a
https://www.mhc.tn.gov.in/judis
Page No.6/10
C.M.A.Nos.935 of 2020 & 3391 of 2021
two wheeler. Therefore, we fix the contributory negligence on the part of the
rider of the offending vehicle bearing registration No.TN-61-5916 and the rider
of the two wheeler bearing registration No.TN-91-B-1390 /deceased at the
ratio of 80 : 20.
11. Though very many contentions have been advanced by the learned
counsel for the claimants and by the learned counsel for the Insurance
Company in support of their case, on perusal of the records, we find that the
Tribunal, on proper appreciation of evidence, has fixed the notional income
and adopting correct multiplier awarded a just and reasonable compensation
under the head of loss of dependency and other heads.
12. Since the negligence is fixed 20% on the part of deceased, the
claimants are entitled to a sum of Rs.18,98,080/- and the same is rounded off
to Rs.19,00,000/- (80% of Rs.23,72,600/-). In the result, the claimants are
entitled for a sum of Rs.19,00,000/- along with interest at the rate of 7.5% per
annum from the date of claim petition till the date of realization.
13. In fine, the Appeal in C.M.A.No.935 of 2020 filed by the claimants is
dismissed and the appeal in C.M.A.No.3391 of 2021 filed by the Insurance
Company is partly allowed. The Insurance Company is directed to deposit the
https://www.mhc.tn.gov.in/judis
Page No.7/10
C.M.A.Nos.935 of 2020 & 3391 of 2021
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 major claimants are
permitted to withdraw their share of the modified award amount along with
proportionate interest and costs, as per the ratio of apportionment fixed by
the Tribunal, less the amount already withdrawn, if any. The share of the
minor claimant shall be deposited in any one of the nationalized banks in a
fixed deposit till he attains majority. The interest accruing on the minors
deposit is permitted to be withdrawn by the mother of the minor claimant,
viz., Punithavalli, once in three months. The order of pay and recovery passed
by the Tribunal is confirmed. There is no order as to costs. Consequently,
connected miscellaneous petition is closed.
[M.K.K.S, J] [V.S.G., J]
15.12.2021
Index : Yes / No
Speaking order: Yes/No
rns
https://www.mhc.tn.gov.in/judis
Page No.8/10
C.M.A.Nos.935 of 2020 & 3391 of 2021
To
1. The II Additional District and Sessions Judge,
Chidambaram.
2. The Section Officer,
V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
Page No.9/10
C.M.A.Nos.935 of 2020 & 3391 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
rns
C.M.A. No.935 of 2020 &
C.M.A.No.3391 of 2021 & C.M.P.No.19559 of 2021
15.12.2021
https://www.mhc.tn.gov.in/judis
Page No.10/10
