Madras High Court

The New India Assurance Company vs S.Usha on 19 February, 2021

                                                                                  C.M.A.No.1479 of 2020

                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 19.02.2021

                                                       CORAM:

                                THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                               C.M.A.No.1479 of 2020
                                                           and
                                               C.M.P.No.10819 of 2020
                    The New India Assurance Company
                      Limited, Thimiri Micro Office
                    No.34/A, Nehru bazaar
                    Thirmiri, Arcot Taluk, Vellore District.                            ... Appellant

                                                          Vs.
                    1.S.Usha

                    2.R.Raja

                    3.V.Sathiyavani

                    4.B.Lakshmi

                    5.K.R.Sasidharan                                                  .. Respondents
                    (5th Respondent remained exparte before
                    the Tribunal and hence, notice to R5
                    is dispensed with)
                    Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                    Vehicles Act, 1988, to set aside the judgment and decree dated 09.12.2019
                    made in M.C.O.P.No.204 of 2017 on the file of Motor Accident Claims
                    Tribunal, II Additional District Court, Vellore at Ranipet.


                    1/11


http://www.judis.nic.in
                                                                                C.M.A.No.1479 of 2020

                                           For Appellant     : Mr.R.Sivakumar


                                           For R1            : Mr.C.Premkumar

                                                      JUDGMENT

This Civil Miscellaneous Appeal has been filed by the

appellant/Insurance Company to set aside the award dated 09.12.2019 made

in M.C.O.P.No.204 of 2017 on the file of Motor Accident Claims Tribunal, II

Additional District Court, Vellore at Ranipet.

2.The appellant/Insurance Company is 2nd respondent in

M.C.O.P.No.204 of 2017 on the file of Motor Accident Claims Tribunal, II

Additional District Court, Vellore at Ranipet. The respondents 1 to 4 filed the

said claim petition claiming a sum of Rs.25,00,000/- as compensation for the

death of one R.Raman, who died in the accident that took place on

28.02.2017.

3.According to the respondents 1 to 4, on the date of accident, i.e., on

28.02.2017, at about 4.15 p.m., while the deceased Raman was traveling in

Venkateshwara bus as a passenger by holding carefully from Kavanoor to

http://www.judis.nic.in C.M.A.No.1479 of 2020

Aanaimallu, near Kavanoor colony, the driver of the bus drove the same in a

rash and negligent manner, due to the said impact, suddenly the said Raman

fell in side of the running bus and thus, the accident has occurred. In the

accident, the said Raman sustained fatal injuries and died in the hospital on

03.03.2017. Therefore, the respondents 1 to 4 filed the above claim petition

claiming compensation against the 5th respondent, owner of the bus and the

appellant/Insurance Company.

4.The 5th respondent, owner of the bus remained exparte before the

Tribunal.

5.The appellant/Insurance Company insurer of the bus filed counter

statement denying the averments made in the claim petition and stated that

the respondents 1 to 4 have to prove that the driver of the bus possessed valid

driving license to drive the vehicle at the time of accident. The driver of the

bus is not responsible for the accident. The deceased Raman alone fell down

from the bus due to his negligence. Therefore, the appellant/Insurance

Company is not liable to pay any compensation to the respondents 1 to 4. The

respondents 1 to 4 are not dependants of the deceased, they are married and

http://www.judis.nic.in C.M.A.No.1479 of 2020

living separately. The appellant/Insurance Company has also denied the age,

avocation and income of the deceased. In any event, the compensation

claimed by the respondents 1 to 4 is excessive and prayed for dismissal of the

claim petition.

6.Before the Tribunal, the 1st respondent, sister of the deceased,

examined herself as P.W.1, one Dhanushkodi, eye-witness to the accident,

was examined as P.W.2 and 11 documents were marked as Exs.P1 to P11.

The appellant/Insurance Company examined one Manivannan as R.W.1 and

marked three documents as Exs.R1 to R3.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

the driver of the bus belonging to the 5th respondent and directed the

appellant/Insurance Company being insurer of the said bus to pay a sum of

Rs.17,67,800/- as compensation to the respondents 1 to 4.

8.To set aside the said award dated 09.12.2019 made in

http://www.judis.nic.in C.M.A.No.1479 of 2020

M.C.O.P.No.204 of 2017, the appellant/Insurance Company has come out

with the present appeal.

9.The learned counsel appearing for the appellant/Insurance Company

contended that the accident did not occur due to negligence of the driver of the

bus belonging to the 5th respondent. The accident has occurred only due to the

negligence of the deceased. The Tribunal failed to consider that in F.I.R., it has

been stated that the deceased did not hold railings. The Tribunal ought to have

fixed negligence on the deceased and dismissed the claim petition. The

respondents 1 to 4 are married sisters and brothers, they are living separately

and are not dependants of the deceased. The Tribunal ought to have awarded

compensation only under no fault liability or loss of estate only left by the

deceased. The learned counsel for the appellant further contended that the

respondents 1 to 4 failed to prove the avocation, age and income of the

deceased. In the absence of material evidence with regard to avocation and

income of the deceased, the compensation awarded by the Tribunal towards

loss of dependency is excessive. The total compensation awarded by the

Tribunal is also excessive and prayed for setting aside the award of the

http://www.judis.nic.in C.M.A.No.1479 of 2020

Tribunal.

10.Per contra, the learned counsel appearing for the respondents 1 to 4

contended that the accident has occurred only due to negligent driving by the

driver of the bus and the respondents 1 to 4 have proved the same by

examining the eye-witness to the accident as P.W.2 and marking F.I.R., which

was registered against the driver of the bus, as Ex.P1. The appellant has not

examined the driver of the bus or any eye-witness to fix negligence on the

deceased. At the time of accident, the deceased was working as a heavy

vehicle driver and was earning a sum of Rs.25,000/- per month. The Tribunal

without considering the same, fixed only a meagre sum of Rs.12,000/- per

month as notional income of the deceased. The deceased was a bachelor and

was living with the respondents 1 to 4 at the time of accident. Hence, the

respondents 1 to 4 are entitled to receive compensation for the death of the

deceased. The compensation awarded by the Tribunal is not excessive and

prayed for dismissal of the appeal.

11.Heard the learned counsel appearing for the appellant/Insurance

http://www.judis.nic.in C.M.A.No.1479 of 2020

Company as well as the learned counsel appearing for the respondents 1 to 4

and perused the entire materials on record.

12.It is the case of the respondents 1 to 4 that while the deceased

Raman was travelling in the bus belonging to the 5th respondent as a

passenger, due to rash and negligent driving by the driver of the bus, the

deceased fell down from the bus and died. To substantiate the same, the 1st

respondent examined herself as P.W.1 and eye-witness to the accident as

P.W.2. P.W.2 deposed as that of the averments made in the claim petition and

marked F.I.R. as Ex.P1, which was registered against the driver of the bus. On

the other hand, it is the case of the appellant that the accident did not occur

due to rash and negligent driving by the driver of the bus, but only due to

negligence of the deceased. The appellant as well as 5th respondent did not

examine the driver of the bus or any eye-witness to prove that the deceased

alone is responsible for the accident. The 5th respondent or the driver of the

bus did not lodge any complaint against the deceased or file any objection to

the contents of F.I.R. being registered against the driver of the bus. The

Tribunal in the absence of any contra evidence to the evidence of P.W.2 and

http://www.judis.nic.in C.M.A.No.1479 of 2020

contents of F.I.R., held that the accident has occurred only due to negligence

of the driver of the bus. The appellant as insurer is liable to pay compensation

awarded. There is no error in the said finding of the Tribunal warranting

interference by this Court.

13.As far as quantum of compensation is concerned, it is the case of the

respondents 1 to 4 that the deceased was working as a lorry driver and was

earning a sum of Rs.25,000/- per month at the time of accident. They failed to

prove the avocation and income of the deceased. In the absence of any

evidence with regard to avocation and income, the Tribunal fixed a sum of

Rs.12,000/- per month as notional income of the deceased. The deceased was

aged 35 years at the time of accident. The Tribunal granted 40% enhancement

towards future prospects, applied multiplier '16', deducted 50% towards

personal expenses as the deceased was a bachelor at the time of accident and

awarded compensation towards loss of dependency, which is not excessive

warranting interference by this Court. It is the contention of the learned

counsel appearing for the appellant that the married sisters and brothers are

not entitled to any compensation for the death of their brother. It is well

http://www.judis.nic.in C.M.A.No.1479 of 2020

settled that married sisters and brothers are also entitled to compensation as

they are dependants of the deceased brother. A sum of Rs.1,20,000/- awarded

by the Tribunal towards loss of love and affection is excessive and hence, the

same is hereby reduced to Rs.40,000/-. Thus the compensation awarded by

the Tribunal is modified as follows:

                     S.No      Description      Amount           Amount          Award
                                               awarded by     awarded by this confirmed or
                                                Tribunal          Court       enhanced or
                                                  (Rs)             (Rs)        granted or
                                                                                reduced
                    1.      Transportation            5,000            5,000 Confirmed
                    2.      Funeral                  15,000           15,000 Confirmed
                            expenses
                    3.      Loss of love and       1,20,000           40,000 Reduced
                            affection
                    4.      Loss of estate           15,000           15,000 Confirmed
                    5.      Loss of               16,12,800        16,12,800 Confirmed
                            dependency
                            Total                 17,67,800     16,87,800 Reduced by
                                                                           Rs.80,000/-

14.With the above modification, the Civil Miscellaneous Appeal is

partly allowed. The compensation of Rs.17,67,800/- awarded by the Tribunal

is hereby reduced to Rs.16,87,800/- together with interest at the rate of 7.5%

http://www.judis.nic.in C.M.A.No.1479 of 2020

per annum from the date of petition till the date of deposit. The

appellant/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. On such deposit, the respondents 1 to 4 are

permitted to withdraw their respective share of the award amount now

determined by this Court, as per the apportionment made by the Tribunal,

along with proportionate interest and costs, after adjusting the amount if any,