Madras High Court
Selvi vs V.Sumathy on 3 February, 2021
C.M.A.Nos.1947 of 2020 & 206 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. Nos.1947 of 2020 & 206 of 2021
C.M.A.No.1947 of 2020
1.Selvi
2.Dharmaraj
3.Tamilselvan
4.Arutselvan .. Appellants
Vs.
1.V.Sumathy
2.The Manager,
M/s. United India Insurance Co. Ltd.,
1st Floor, Usman Building,
Main road, Kallakudi, Lalkudi Taluk,
Thiruchirapalli District. .. Respondents
C.M.A.No.206 of 2021
The Manager,
M/s. United India Insurance Co. Ltd.,
1st Floor, Usman Building,
Main road, Kallakudi, Lalkudi Taluk,
Thiruchirapalli District. .. Appellant
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C.M.A.Nos.1947 of 2020 & 206 of 2021
Vs.
1.Selvi
2.Dharmaraj
3.Tamilselvan
4.Arutselvan
5.V.Sumathi .. Respondents
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the award dated 07.12.2019, made
in M.C.O.P. No.104 of 2019, on the file of the Additional District Judge,
Small Causes Court, (Motor Accident Claims Tribunal), Ariyalur.
(In C.M.A.No.1947/2020)
For Appellants : Mr.T.Gobinath
For Respondents : Mr.J.Chandran (For R2)
(In C.M.A.No.206/2021)
For Appellant : Mr.J.Chandran
For Respondent : Mr.T.Gobinath (For R1 to R4)
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C.M.A.Nos.1947 of 2020 & 206 of 2021
COMMON JUDGMENT
The matter is heard through "Video Conferencing".
These Civil Miscellaneous Appeals are filed against the award dated
07.12.2019, made in M.C.O.P. No.104 of 2019, on the file of the Additional
District Judge, Small Causes Court, (Motor Accident Claims Tribunal),
Ariyalur.
2.Both the appeals arise out of the same accident and same award and
hence, they are disposed of by this common judgment.
3.The parties are referred to as per their rank in the claim petition, for
the sake of convenience.
4.The claimants filed M.C.O.P. No.104 of 2019, on the file of the
Additional District Judge, Small Causes Court, (Motor Accident Claims
Tribunal), Ariyalur, claiming a sum of Rs.50,00,000/- as compensation for the
death of one Anbuselvan, who died in the accident that took place on
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C.M.A.Nos.1947 of 2020 & 206 of 2021
05.04.2017.
5.According to the claimants, on the date of accident viz., 05.04.2017,
the deceased rode his Motorcycle bearing Registration No.TN-61-F-9207 in
T.Palur to Suthamalli main roan on the left side from East to West direction,
dashed behind the Ashok Leyland Trailor Lorry bearing No.TN-28-AK-3328
belonging to the 1st respondent which was parked by its driver in the road
without indicators, reflectors and fell down. In the accident, the deceased
succumbed to fatal injuries. The accident occurred only due to negligent
parking of the Lorry by its driver and hence, the claimants filed the claim
petition, claiming compensation against the respondents as owner and insurer
of the said Lorry.
6.The 2nd respondent-Insurance Company filed counter statement and
denied all the averments made by the claimants in the claim petition.
According to the 2nd respondent, driver of the Lorry parked the vehicle on the
extreme left side of the road with reflector lights on and the deceased who
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C.M.A.Nos.1947 of 2020 & 206 of 2021
rode the Motorcycle in an inebriated condition, dashed behind the Lorry,
sustained injuries and succumbed to death. The deceased rode the vehicle
without valid driving license and without wearing helmet and thus, breached
the policy conditions. The claimants filed the FIR against the driver of the
Lorry, based on false averments. The claim petition is bad for non-joinder of
owner and insurer of the Motorcycle rode by the deceased. The claimants
have to prove the age, avocation and income of the deceased to claim
compensation. In any event, the total compensation claimed by the claimants
are excessive and prayed for dismissal of the claim petition.
7.Before the Tribunal, the 1st claimant examined herself as P.W.1,
examined eye-witness as P.W.2 and marked 5 documents as Exs.P1 to P5. The
2nd respondent examined the driver of the Lorry as R.W.1, their Official as
R.W.2 and marked 2 documents as Exs.R1 and R2.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that accident occurred due to negligence of both the deceased
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C.M.A.Nos.1947 of 2020 & 206 of 2021
as well as the driver of the Lorry and apportioned 10:90 negligence on both
of them respectively and directed the 2nd respondent-Insurance Company to
pay a sum of Rs.16,00,900/- as compensation to the claimants.
9.Against the said award dated 07.12.2019, made in M.C.O.P. No.104
of 2019 claimants have filed C.M.A.No.1947 of 2020 and the 2nd respondent-
Insurance Company has filed C.M.A. No.206 of 2021.
10.The learned counsel appearing for the 2nd respondent-Insurance
Company contended that P.W.2 is not an eye witness. He has admitted in the
cross examination that only after hearing the sound, he reached the scene of
occurrence. The Tribunal failed to consider the evidence of driver of the
Lorry as R.W.1, who deposed that he parked the Lorry at the edge of the road
with indicator and there was place for two vehicles to go at a time on the right
hand side of the Lorry. The deceased, in an inebriated condition, rode the
Motorcycle and dashed on the backside of the Lorry and caused the accident.
The deceased driving the Motorcycle without seeing the indicator light and
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C.M.A.Nos.1947 of 2020 & 206 of 2021
the wooden log kept on the road 10 feet away from the Lorry, invited the
accident by hitting himself. The Tribunal instead of fixing entire negligence
on the deceased, erroneously fixed only 10% negligence holding that, had the
deceased was diligent and cautious, he could have seen the Lorry and avoided
the accident. The Tribunal failed to consider the evidence of R.W.1 and R.W.2
and documents marked by the 2nd respondent-Insurance Company. The
claimants 1 to 4 failed to prove the avocation and income of the deceased.
The Tribunal erroneously fixed a sum of Rs.7,500/- per month as notional
income of the deceased and granted 40% enhancement towards future
prospects. The deceased was a bachelor. The Tribunal ought to have deducted
50% towards personal expenses, instead of deducting 1/4th towards the same
and prayed for setting aside the award of the Tribunal and dismissing
C.M.A.No.1947 of 2020 filed by the claimants.
11.Mr.T.Gobinath, learned counsel appearing for the claimants
contended that the driver of the Lorry belonging to the 1 st respondent parked
the Lorry without any indicator and he was responsible for the accident.
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C.M.A.Nos.1947 of 2020 & 206 of 2021
P.W.2 eye witness has categorically deposed that Lorry was parked without
indicator. The 2nd respondent-Insurance Company has not examined any
independent eye witness to corroborate the evidence of R.W.1, the driver of
the Lorry. The accident occurred only due to negligent parking of the driver
of the Lorry without any indicator. The Tribunal erroneously fixed 10%
negligence on the deceased. The learned counsel appearing for the claimants
further contended that the deceased was a Loadman and owner of Victor
Arogyiam Oil Mill, Jeyankondam and was getting Rs.18,000/- per month as
salary. The Tribunal erroneously fixed a sum of Rs.7,500/- as monthly income
and granted meagre amount towards loss of dependency and prayed for
setting aside 10% negligence fixed on the deceased, enhancement of the
compensation and dismissal of C.M.A.No.206 of 2021 filed by the 2nd
respondent-Insurance Company.
12.Heard the learned counsel appearing for the claimants as well as the
2nd respondent-Insurance Company and perused the materials available on
record.
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C.M.A.Nos.1947 of 2020 & 206 of 2021
13.It is the case of the claimants that while the deceased/son of the
claimants 1 and 2 and brother of the claimants 3 and 4, was riding the
Motorcycle, the driver of the Lorry belonging to the 1st respondent parked the
Lorry without any indicator or signal in the road. Due to the same, the son of
the claimants 1 and 2 dashed on the backside of the Lorry and due to the
injuries sustained, he died on the spot. In support of their case, they examined
the 1st claimant as P.W.1 and one Suresh, eye-witness as P.W.2 and marked
FIR as Ex.P1, which was registered against the driver of the Lorry. On the
other hand, it is the case of the 2nd respondent that driver of the Lorry parked
the Lorry with indicator and signal. The deceased, in an inebriated condition,
drove the Motorcycle in a rash and negligent manner without noticing the
signal and indicator and dashed on the Lorry and invited the accident. In
support of their case, they examined the driver of the Lorry as R.W.1, their
Official as R.W.2 and marked the rough sketch and copy of the policy as
Exs.R1 and R2 respectively.
14.P.W.2 eye-witness deposed that Lorry was parked without indicator,
but he admitted that only after hearing the sound of impact, he rushed to the
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C.M.A.Nos.1947 of 2020 & 206 of 2021
spot. The contention of the learned counsel appearing for the 2nd respondent-
Insurance Company is that P.W.2 is not an eye-witness, the 2 nd respondent has
not elicited any favourable answer from P.W.2 in cross-examination, P.W.2
has categorically stated that Lorry was parked without any indicator or signal.
The evidence of P.W.2 was not opposed by the 2nd respondent by letting in
any independent eye witness. R.W.1, driver of the Lorry is an interested
witness. The Tribunal considering the pleadings, evidence of P.W.1, P.W.2
and R.W.1, has held that accident occurred due to negligent parking of Lorry
by the driver of 1st respondent. At the same time, the Tribunal has taken note
of the fact that accident has occurred when the deceased dashed on the
backside of the Lorry. The Tribunal considering the judgment of this Court
reported in 2018 (1) TN MAC 663 [Reliance General Insurance Co. Ltd.,
Vs. Ayyadurai and others] and the judgment of Division Bench of this Court
reported in 2017 (1) TN MAC 5 (DB) [S.Manjula Devi and others Vs.
Brijpal Sing and others], held that deceased could have avoided the accident,
had he been careful while driving the vehicle at night and fixed 10%
contributory negligence on the part of the deceased. There is no error in the
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C.M.A.Nos.1947 of 2020 & 206 of 2021
said finding of the Tribunal warranting interference by this Court.
15.As far as the quantum of compensation is concerned, it is the case of
the claimants 1 to 4 that deceased was a Loadman as well as owner of Oil
Mill and was getting a sum of Rs.18,000/- per month as salary. The claimants
failed to prove the same. In the absence of any evidence, the Tribunal fixed a
sum of Rs.7,500/- per month as notional income of the deceased. The
accident is of the year 2017. The notional income fixed by the Tribunal is
meagre. Hence, a sum of Rs.14,000/- per month is fixed as notional income of
the deceased. The deceased was aged 25 years and was a bachelor at the time
of accident. The Tribunal granted 40% enhancement towards future
prospects. The Tribunal erroneously deducted 1/4th towards personal expenses
of the deceased, instead of deducting 50%. By fixing the monthly income at
Rs.14,000/-, granting 40% enhancement towards future prospects, deducting
50% towards personal expenses and applying the multiplier '18', the amounts
awarded by the Tribunal towards loss of dependency is modified to
Rs.21,16,800/- {[Rs.14,000/- + Rs.5,600/-(40% of Rs.6,500/-)] x 12 x 18 x
50%}. After deducting 10% for the negligence fixed on the deceased, the loss
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C.M.A.Nos.1947 of 2020 & 206 of 2021
of dependency comes to Rs.19,05,120/- [Rs.21,16,800 – Rs.2,11,680/-]. The
Tribunal has awarded a sum of Rs.40,000/- as compensation to the claimants
under the head, loss of consortium. The claimants 1 and 2 who are the parents
and claimants 3 and 4 who are the siblings of the deceased are only entitled to
compensation towards loss of love and affection. Hence, the amount awarded
by the Tribunal towards loss of consortium is set aside and a sum of
Rs.40,000/- is awarded towards love and affection. The amounts awarded by
the Tribunal under other heads are just and reasonable and hence, the same
are hereby confirmed. Thus, the compensation awarded by the Tribunal is
modified as follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by this confirmed or
(Rs) Court (Rs) enhanced or
granted
1. Loss of dependency 15,30,900/- 19,05,120/- Enhanced
2. Loss of consortium 40,000/- - Set aside
3. Funeral expenses 15,000/- 15,000/- Confirmed
4. Loss of estate 15,000/- 15,000/- Confirmed
5. Loss of love and - 40,000/- Granted
affection
Total 16,00,900/- 19,75,120/- Enhanced by
Rs.3,74,220/-
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C.M.A.Nos.1947 of 2020 & 206 of 2021
16.In the result, both the appeals are partly allowed and the amount
awarded by the Tribunal at Rs.16,00,900/- is enhanced to Rs.19,75,120/-
along with interest at the rate of 7.5% per annum from the date of petition till
the date of deposit. The 2nd respondent-Insurance Company is directed to
deposit the award amount now determined by this Court along with interest
and costs, less the amount already deposited, if any, within a period of six
weeks from the date of receipt of a copy of this judgment, to the credit of
M.C.O.P.No.104 of 2019. On such deposit, the claimants are permitted to
withdraw their share of the award amount, now determined by this Court
alongwith proportionate interest and costs, as per the ratio of apportionment
fixed by the Tribunal, after adjusting the amount, if any, already withdrawn,
by filing necessary applications before the Tribunal. No costs.
03.02.2021
Index : Yes / No
gsa
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C.M.A.Nos.1947 of 2020 & 206 of 2021
V.M.VELUMANI, J.,
gsa
To
1.The Additional District Judge,
Small Causes Court,
(Motor Accident Claims Tribunal),
Ariyalur.
2.The Section Officer,
V.R Section,
High Court, Madras.
C.M.A. Nos.1947 of 2020 & 206 of 2021
03.02.2021
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