Madras High Court
Kutti vs Parameswaran on 18 February, 2021
C.M.A. No.4757 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 18 .02.2021
CORAM
THE HONOURABLE Mr. JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A. No.4757 of 2019
1. Kutti
S/o.Chinnakannu
2. Vijaya
W/o.Kutti .. Appellants
Versus
1. Parameswaran
2. Royal Sundaram Alliance Insurance Co. Ltd.,
Door No.1, 2nd Floor,
Subramanian Building,
Club House Road,
Annasalai,
Chennai 600 002. .. Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the judgment and decree dated 29.01.2019 made in
MCOP. No.366 of 2017 on the file of the III Additional District Judge, Vellore
at Thirupattur.
For appellants : Mr.Karan and Uday
For respondents
for R1 : Set ex-parte before the Tribunal
for R2 : Mr.E.Rajadurai,
for Mr.M.B.Gopalan Associates
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C.M.A. No.4757 of 2019
JUDGMENT
(The Judgment of the Court was delivered by R.Subbiah, J)
The appeal is heard through video conferencing.
2. This appeal has been filed as against the award dated 29.01.2019
passed by the Motor Accident Claims Tribunal / III Additional District Judge,
Vellore at Thirupattur, in MCOP. No.366 of 2017, in and by which, the claim
petition filed by the appellants / claimants herein was dismissed.
3. The appellants / claimants are the parents of the deceased Murali. It is
the case of the claimants that on 10.05.2017, while the deceased Murali was
riding a Bajaj Pulsar Motorcycle bearing Registration No.TN 23 BP 0049 on
Jolarpetai-Tirupattur Main Road, a Lorry bearing Registration No.TN 52 F
6968 owned by the first respondent and insured with the second respondent /
Insurance Company, was driven by its driver in a rash and negligent manner
and hit on the rear side of the two wheeler. Due to the impact, the deceased
Murali sustained grievous head injuries and lost his consciousness.
Immediately, he was taken to the Government Hospital, Tirupattur and in spite
of the treatment given to him, he died on the same day.
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C.M.A. No.4757 of 2019
4. It is the further case of the claimants that the deceased was 20 years at
the time of the accident and he was a Mason by avocation and earning
Rs.20,000/- per month. Hence, they made a claim for a sum of Rs.25,00,000/-.
5. The case of the claimants was resisted by the Insurance Company by
taking a defence that it is incorrect to state that the accident had occurred due
to the rash and negligent driving of the Lorry bearing Registration No.TN 52 F
6968. The fact is that the deceased Murali while attempting to overtake the
Lorry at a hectic speed, lost balance and fell under the Lorry tyre and sustained
fatal injuries. Therefore, the Insurance Company is not liable to pay
compensation amount to the claimants.
6. In order to prove the claim on the side of the appellants / claimants,
the first appellant / father of the deceased was examined as PW1, besides two
other witnesses were examined as PW2 and PW3 and 9 documents were
marked as Exs.P1 to P9. On the side of the second respondent / Insurance
Company, 3 witnesses were examined as RW1 to RW3 and Exs.R1 to R11
were marked.
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C.M.A. No.4757 of 2019
7. The Tribunal after analysing the entire evidence, came to the
conclusion that the accident is the result of rash and negligent driving of the
two wheeler driven by the deceased Murali and the driver of the Lorry was no
way responsible for the accident. Thus, the Tribunal dismissed the claim
petition. Aggrieved over the same, the present appeal has been filed by the
claimants.
8. The learned counsel for the appellants / claimants submitted that in
order to prove that the accident is the result of rash and negligent driving of
the Lorry, claimants examined two eye witnesses PW2 and PW3. However, the
Tribunal totally rejected their evidence stating that their presence in the
accident spot, is doubtful. Thus, the Tribunal by neglecting the evidence of
PW2 and PW3 and by accepting the Insurance Company's version that the
accident had occurred when the deceased made an attempt to overtake the
Lorry, had dismissed the claim petition in toto. But the Tribunal has failed to
note that had the driver of the Lorry been more vigilant, he could have applied
the brake and averted the accident, which he failed to do. Therefore, certain
percentage of negligence may be fixed on the part of the Lorry driver and
compensation could be awarded in proportion to the percentage of negligence.
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C.M.A. No.4757 of 2019
9. Per contra, the learned counsel for the respondent / Insurance
Company made his submissions supporting the award passed by the Tribunal.
10. Keeping in mind the above submissions made on either side, we
have carefully perused the materials available on record.
11. On a perusal of the records, it is seen that the accident had occurred
while the deceased Murali tried to over take the Lorry. But as contended by the
learned counsel for the appellants, if the driver of the Lorry had been vigilant,
he would have averted the accident by applying brake. Hence, there is certain
percentage of negligence on the part of the Lorry driver also. Therefore, the
finding of the Tribunal that the deceased was solely responsible for the
accident, is set aide, instead, liability is fixed equally on both the deceased and
the Lorry driver, i.e., 50% on the part of the deceased and 50% on the driver of
the Lorry.
12. Insofar as quantum of compensation is concerned, it is the case of
the claimants that the deceased was working as a Mason and earning
Rs.20,000/- per month, but no documentary evidence was produced to prove
the same. Hence, considering the avocation of the deceased and also taking
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C.M.A. No.4757 of 2019
note of the cost of living prevalent at the time of the accident, a sum of
Rs.9,000/- is fixed as monthly income of the deceased. Hence, if Rs.9,000/- is
fixed as monthly income, and 40% of the same is added towards future
prospects, the amount works out to Rs.12,600/- [9,000 + 3,600]. If 1/2 of the
amount is deducted towards personal expenses, the amount works out to
Rs.6,300/- [12,600 - 6,300]. Resultantly, the annual loss of income comes to
Rs.75,600/- [6,300 x 12]. Considering the age of the deceased being 20 years
at the time of the accident, the correct multiplier to be applied is “18”. If
multiplier “18” is applied, the amount works out to Rs.13,60,800/- [75,600 x
18]. Accordingly, a sum of Rs.13,60,800/- is awarded under the head “Loss of
Dependency”.
13. Since the claimants lost their son at their advanced age, a sum of
Rs.80,000/- is awarded under the head “Loss of Love and Affection” by
awarding a sum of Rs.40,000/- to each of the claimants.
14. It is reasonable to award a sum of Rs.20,000/- under the head
"Funeral Expenses" and another sum of Rs.20,000/- under the head "Loss of
Amenities".
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C.M.A. No.4757 of 2019
15. The break-up details of the amounts awarded by this Court under
various heads are as follows:
S.No. Head under which the amount is Amount
awarded in Rs.
1. Loss of Dependency 13,60,800/-
2. Love and Affection 80,000
3. Funeral Expenses 20,000
4. Loss of Amenities 20,000
Total 14,80,800
(rounded of to
15,00,000)
(-)50% contributory negligence 7,50,000
Compensation payable 7,50,000
16. Thus, this Court hereby award a sum of Rs.15,00,000/- as
compensation for the death of the deceased Murali. Since 50% negligence is
fixed on the part of the deceased, out of the compensation amount of
Rs.15,00,000/-, the claimants are entitled only for half share, i.e. Rs.7,50,000/-.
17. Thus, the total sum of Rs.7,50,000/- is awarded as compensation to
the claimants, which shall carry interest at 7.5% from the date of claim petition
till the date of payment. The claimants shall pay necessary Court fee, on the
compensation now awarded. The claimants are entitled for equal share in the
above award. The Insurance Company is directed to deposit the total
compensation before the Tribunal, after adjusting the amount if any, already
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C.M.A. No.4757 of 2019
deposited, within a period of four weeks from the date of receipt of a copy of
this judgment. On such deposit, the claimants are permitted to withdraw the
amount of their share as indicated above.
18. With the above observations and directions, this Civil Miscellaneous
Appeal is partly allowed. No costs.
[R.P.S., J] [S.S.K., J]
18.02.2021
Speaking Order : Yes / No
Index : Yes / No
pvs
To
1. The III Additional District Judge, Vellore at Thirupattur
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. No.4757 of 2019
R.SUBBIAH, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
pvs
C.M.A. No.4757 of 2019
18.02.2021
https://www.mhc.tn.gov.in/judis/
