Madras High Court
Iffco Tokio General Insurance ... vs S.Pitchaimary on 17 February, 2021
C.M.A(MD)No.434 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.02.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A(MD)No.434 of 2020
and
C.M.P(MD)No.5145 of 2020
IFFCO TOKIO General Insurance Company Limited,
No.375A, 1st Floor, Jeyam Building,
Madurai Road,
Theni – 625 531,
Rep. by its Branch Manager. ... Appellant/2nd Respondent
Vs.
1.S.Pitchaimary
2.Minor S.Sahaya Nijon
3.Minor S.Neviya Mercy
4.R.Siriya Pushpam ... Respondents 1 to 4/
Petitioners
5.D.Logesh ... 5th Respondent/1st Respondent
(Minor RR 2 & 3 rep. by their
mother-1st petitioner)
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the award and decree made in
M.C.O.P.No.118 of 2018, dated 03.07.2019, on the file of the Motor
Accident Claims Tribunal (Additional District Court), Theni.
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C.M.A(MD)No.434 of 2020
For Appellant : Mr.V.Sakthivel
For RR 1 to 4 : Mr.Ananth C.Rajesh
JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA,J.)
Challenging the award, dated 03.07.2019 passed in
M.C.O.P.No.118 of 2018, on the file of the Motor Accidents Claims
Tribunal/Additional District Court, Theni, the appellant/IFFCO-TOKIO
General Insurance Company Limited has preferred this Civil
Miscellaneous Appeal.
2.In the said M.C.O.P, the claimants/respondents 1 to 4 are the
wife, two minor children and mother of the deceased-Savarimuthu.
The Tribunal had awarded a sum of Rs.29,47,580/- on various heads.
The said award is now challenged in the present Civil Miscellaneous
Appeal not only on the quantum, but also on the question of
negligence.
3.The brief facts relevant for the consideration of the above case
is that on 16.08.2018, the deceased-Savarimuthu was riding his two
wheeler bearing Registration No.TN-60-R-5819 belonging to the first
respondent, which was driven from South to North, hit the two
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C.M.A(MD)No.434 of 2020
wheeler of the deceased and in the impact, the deceased was thrown
out, injuring his head and died on the spot due to the head injury. It
was alleged that the accident had occurred due to the rash and
negligent act of the driving of the Van belonging to the fifth
respondent/first respondent. The said Van was insured with the
appellant/second respondent. Hence the respondents
1 to 4/claimants, as legal heirs of the deceased, has filed this claim
petition claiming a compensation of Rs.65,00,000/-.
3.Resisting the claim petition, the appellant-Insurance Company
has filed a counter affidavit contending that the accident had occurred
only due to the reckless act of the deceased and the quantum of
compensation claimed by the claimants is highly excessive and
without any basis.
4.Before the Tribunal, the wife of the deceased, the first
respondent herein was examined as P.W.1, Johnkennadi was examined
as P.W.2, Francis was examined as P.W.3 and Manikandan was
examined as P.W.4 and Exs.P1 to Ex.P14 were marked. On the side of
the appellant, one Senthilkumar was examined as R.W.1 and Exs.R1
and R2 were marked.
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C.M.A(MD)No.434 of 2020
5.The Tribunal, after considering the oral and documentary
evidences, held that the accident occurred due to the rash and
negligent driving of the driver of the fifth respondent/first respondent
and that the deceased died on the spot. The Tribunal further held that
the appellant/Insurance Company is liable to pay compensation to the
claimants and had awarded a total compensation of Rs.29,47,580/-
under various heads.
6.Heard the learned counsel appearing on either side and
perused the materials available on record.
7.The learned counsel appearing for the appellant/Insurance
Company would argue that the deceased, who was riding a two
wheeler, did not wear a helmet and also did not follow the road Rules,
because of which, the accident had occurred. It is pointedly argued by
the learned counsel for the appellant that when it is mandatory to
wear a helmet while riding a two-wheeler, the deceased had neglected
the same and was not wearing the helmet. Hence, the death was
caused due to the head injury. It was stated that if he had worn the
helmet, his life would have been saved and prayed that atleast 10% of
contributory negligence should be attributed to the deceased. In this
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C.M.A(MD)No.434 of 2020
regard, the learned counsel appearing for the appellant placed his
reliance in A.Chitra and others Vs. G.A.Sivakumar and others
reported in 2017 (1)TNMAC 423, wherein, in paragraph No.7, it is
stated as follows:-
“7.However, as rightly pointed out by
Mr.K.Bhaskaran, learned counsel for the second
respondent, the deceased rider was not wearing helmet at
the time of accident. Therefore, contributory negligence
has to be fixed. Section 128 of the Motor Vehicles Act
mandates wearing of hit-wear/helmet and the rider shall
wear Helmet. It is not the case of the claimants that the
rider was wearing helmet as per Section 129 of the Motor
Vehicles Act, 1988. Therefore, 15% contributory
negligence has to be fixed on the deceased driver.”
8.However, the learned counsel appearing for the respondents
1 to 4/claimants pointed out that as per Ex.P.13, which is the rough
sketch showing the accident, Bodi to Chinnamanur Main Road was a
single lane road running from North to South, on the right side of the
road, on the Eastern side there is a stream. The deceased was
proceeding from North to South and the offending vehicle was moving
from South to North. The accident spot has been marked in the above
sketch as Ex.P.13. Pointing out the same, the learned counsel for the
respondents 1 to 4 argued that it was the driver of the offending
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C.M.A(MD)No.434 of 2020
vehicle, who had moved to the extreme right side of the road when he
has to be on the left side when travelling towards North. Thus, the
driver of the offending vehicle had driven the Van in a rash and
negligent manner and hit the two wheeler and in the impact, the
deceased was thrown out of the vehicle and died of head injury on the
spot.
9.Even though in the First Information Report also, it is
mentioned that the deceased was not wearing a helmet, unless it is
proved that the death was caused due to the non-wearing of the
helmet, it cannot be said that the deceased contributed to his own
death. There is no reason given as to why the Van was driven to the
extreme right of the road and hit the right side handle bar of the two
wheeler causing imbalance to the rider, which resulted in the fatal
accident. Therefore, as rightly held by the Tribunal, contributory
negligence cannot be applied mechanically without sufficient evidence
and the same has to be proved beyond doubt. Admittedly, the driver
of the Van has not been examined on the side of the appellant and the
fifth respondent. Hence, the argument of the learned counsel for the
appellant that the deceased had contributed to the negligence and the
compensation awarded has to be reduced to a certain percentage does
not find merit.
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C.M.A(MD)No.434 of 2020
10.Sofar as quantum of compensation awarded by the Tribunal
is concerned, it is not in dispute that the appellant-Insurance
Company is liable to pay any compensation.
11.The learned counsel for the appellant argued that in order to
prove the monthly earning of the deceased, Ex.P.11 was produced,
which was the salary certificate issued by the owner of the bore-well
machine operator by one Francis. The deceased was employed with
him on a daily wage basis. The said E.xP.11-salary certificate was
marked through his employer, who has been examined as P.W.3. Even
otherwise, the person maintaining his mother, wife and two children
should be earning atleast Rs.24,000/- per month to maintain the
family, but the Tribunal did not take the income as mentioned in
Ex.P.11 and had taken a notional income of Rs.15,000/- per month.
The deceased was 41 years at the time of accident. Therefore,
proceeding from there, the claimants were entitled to future prospects
of 25% which makes the monthly income of the deceased as Rs.
18,750/- and 1/4th of the same was deducted for the personal and
living expenses, it comes to Rs.14,063/- (Rs.18,750-Rs.4,687/-). As
per the decision of the Hon'ble Supreme Court in National
Insurance Company Limited v. Pranay Sethi and Others
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C.M.A(MD)No.434 of 2020
reported in 2018(1) LW 3331, the multiplier adoptable is '14'.
Hence, the loss of dependency is worked at Rs.23,62,584/- (Rs.
14,065/- X 12 X 14).
12.Insofar as the other heads viz., Transportation-Rs.5,000/-,
funeral expenses-Rs.15,000/-, loss of consortium of the first claimant-
Rs.40,000/- and loss of love and affection to minor claimants 2 and 3-
Rs.40,000/- each and loss of estate-Rs.15,000/-, are not disputed and
the same stands confirmed.
13.Insofar as the loss of love and affection to the fourth
claimant, who is the mother of the deceased, is to be increased from
Rs.30,000/- to Rs.40,000/- and insofar as the maintenance of minor
claimants 2 and 3 till they attain majority, the Tribunal had awarded a
sum of Rs.2,00,000/- each which is not permissible, in view of
Pranay Sethi's case (cited supra) and the said amount has to be
deducted. Therefore, including the loss of dependency viz., Rs.
23,62,584/-, the total amount payable by the appellant would be
Rs.25,57,584/- and the claimants are entitled to a sum of
Rs.25,57,584/-as total compensation.
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C.M.A(MD)No.434 of 2020
14.Accordingly, the Award of the Tribunal is modified as follows:-
S.No Description Amount Amount Award confirmed
awarded by awarded by this or enhanced or
Tribunal Court granted
(Rs) (Rs)
1. Transportation 5,000/- 5,000/- confirmed
for taking the
body
2. Funeral 15,000 15,000/- Confirmed
expenses
3. Loss of 40,000/- 40,000/- Confirmed
consortium of
the first
respondent
4. Loss of love and 80,000/- 80,000 confirmed
affection to (40,000 X 2)
minor
respondents 2
and 3
5. Loss of love and 30,000 40,000 enhanced
affection to the
fourth
respondent
6. Maintenance of 4,00,000/- ----- Not awarded
minor (2,00,000/- X
respondents 2 2)
and 3 till they
attain majority
7. Loss of estate 15,000/- 15,000/- confirmed
8. Loss of 23,62,584/- 23,62,584/- confirmed
dependency
8. Total Rs.29,47,580/- Rs.25,57,584/- Reduced by
Rs.3,89,996/-
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C.M.A(MD)No.434 of 2020
15.In the result, the Civil Miscellaneous Appeal is allowed in part
as follows:-
(i) The Award of the Tribunal is reduced to
Rs.25,57,584/- from Rs.29,47,580/-.
(ii) The interest granted by the Tribunal at 7.5% per
annum is confirmed.
(iii) The Award amount is apportioned as per the
ratio of apportionment made by the Tribunal.
(iv) The learned counsel appearing for the
appellant-Insurance Company submitted that the award
amount has not been deposited before the Tribunal.
Hence, the appellant-Insurance Company is directed to
deposit the award amount to the credit of claim petition,
less the amount already deposited, if any, within a period
of four weeks from the date of receipt of a copy of this
order.
(v) The respondents 1 and 4/claimants 1 and 4 are
permitted to withdraw their share in the award amount
with proportionate accrued interest and costs. The share
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C.M.A(MD)No.434 of 2020
of the minor claimants/respondents 2 and 3 are permitted
to be kept in any of the Nationalised Bank till they attain
majority and the guardian/first respondent is permitted to
withdraw the interest amount once in three months and
utilize the same for the welfare of the minor children.
No costs. Consequently, connected Miscellaneous Petition is closed.
[P.S.N.,J] [S.K.,J.]
17.02.2021
Index :Yes/No
Internet :Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for official
purposes, but, ensuring that
the copy of the order that is
presented is the correct copy,
shall be the responsibility of the
advocate / litigant concerned.
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C.M.A(MD)No.434 of 2020
PUSHPA SATHYANARAYANA,J.
and
S.KANNAMMAL,J.
ps
To
1.The Motor Accident Claims Tribunal/
Additional District Court,
Theni.
2.The V.R Section (Records),
Madurai Bench of Madras High Court,
Madurai.
C.M.A(MD)No.434 of 2020
17.02.2021
http://www.judis.nic.in
