Madras High Court
The New India Assurance Company ... vs Maadhu on 22 February, 2021
C.M.A.No.406 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.406 of 2021
and
C.M.P.No.2632 of 2021
The New India Assurance Company Limited,
No.1, Officer's Line,
Vellore District,
Vellore. .. Appellant
Vs.
1.Maadhu
2.Malathi
3.Parthiban
4.V.Murugan
5.M.Jaganathan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
08.11.2019 made in M.C.O.P.No.432 of 2014 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Tirupattur.
For Appellant : Mr.S.Dhakshnamoorthy
For RR 1 to 3 : No appearance
1/10
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C.M.A.No.406 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside the award
dated 08.11.2019 made in M.C.O.P.No.432 of 2014 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Tirupattur.
2.The appellant is the 3rd respondent in M.C.O.P.No.432 of 2014 on the
file of the Motor Accidents Claims Tribunal, Special Sub Court, Tirupattur.
The respondents 1 to 3 filed the said claim petition claiming a sum of
Rs.20,00,000/- as compensation for the death of one Mahendiran, who died in
the accident that took place on 08.07.2014.
3.According to respondents 1 to 3, on 08.07.2014 at about 06.00 P.M.,
while the deceased Mahendiran, who was cleaner cum driver of the lorry
bearing Registration No.TN 21 AZ 3940 belonging to 5th respondent, was
covering the cotton goods in the said lorry by standing on the top of it, the 4th
respondent–driver of the lorry started and drove the lorry rashly and
negligently without giving any signal to the cleaner of the lorry, the deceased
Mahendiran. Due to the said impact, the said Mahendiran who was on the top
of the lorry fell down from the lorry, sustained grievous injuries all over the
body. Immediately after the accident, the said Mahendiran was taken to
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C.M.A.No.406 of 2021
M.K.Bhandari Hospital, Raichur and then he was taken to Rajiv Gandhi
Government General Hospital, Chennai. Inspite of treatment, the said
Mahendiran succumbed to injuries on 25.07.2014. Therefore, the respondents
1 to 3, filed the above said claim petition claiming a sum of Rs.20,00,000/- as
compensation against the respondents 4, 5 and appellant-Insurance Company,
being the driver, owner and insurer of the lorry respectively.
4.The respondents 4 & 5, being the driver and owner of the lorry
remained exparte before the Tribunal.
5.The appellant-Insurance Company, being the insurer of the lorry filed
counter statement and denied all the averments made by the respondents 1 to
3. The appellant denied the manner of accident as alleged by the respondents
1 to 3. The accident occurred on 08.07.2014 and the 3 rd respondent has given
a complaint to the Police on 18.07.2014 at 06.30 P.M. After the accident, the
said Mahendiran was admitted in the M.K.Pandari Hospital, but no records
was filed. The 3rd respondent is not an eyewitness to the accident and he gave
complaint only after 10 days from the date of accident. Hence, the F.I.R. was
created and fabricated one. No discharge summary and postmortem certificate
were filed. F.I.R. was registered only after 10 days from the accident and the
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C.M.A.No.406 of 2021
claim petition has been filed only with a view to grab money from the
appellant. There was no mention about the deceased whether he was a driver
or cleaner of the lorry. The appellant denied the age, avocation and income of
the deceased. In any event, the quantum of compensation claimed by the
respondents 1 to 3 is highly excessive and prayed for dismissal of the claim
petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1
and 4th respondent V.Murugan, eyewitness to the accident was examined as
P.W.2 and 20 documents were marked as Exs.P1 to P20. The appellant-
Insurance Company examined one M.Baskar as R.W.1 and 5th respondent
M.Jaganathan as R.W.2 and marked letter from Vaniyambadi RTO as Ex.R1.
7.The Tribunal, considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by the driver of the lorry, 4th respondent herein and directed the
appellant-Insurance Company to pay a sum of Rs.12,15,000/- as
compensation to the respondents 1 to 3.
8.To set aside the said award dated 08.11.2019 made in
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C.M.A.No.406 of 2021
M.C.O.P.No.432 of 2014, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company
contended that the Tribunal erred in relying on Ex.P7 as postmortem
certificate. The said document is only a Mortuary Label. The respondents 1 to
3 failed to produce the postmortem report and failed to prove the cause of
death. The respondents 1 to 3 failed to produce the treatment records to prove
the treatment given to the deceased during the period from 11.07.2014 to
25.07.2014 in Rajiv Gandhi Government General Hosptial, Chennai. The
registration of F.I.R. belatedly creates suspicion of their claim that cause of
death was due to the accident. The respondents 1 to 3 failed to produce the
legal heirship certificate to substantiate their claim of compensation for the
death of the said Mahendiran. The Tribunal erred in directing the appellant to
deposit the award amount without deduction of TDS (Tax Deductible at
Source) and prayed for setting aside the award of the Tribunal.
10.Though the respondents 1 to 3 entered appearance through counsel,
at the time of hearing this appeal, there was no representation for them.
11.Heard the learned counsel appearing for the appellant and perused
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C.M.A.No.406 of 2021
the entire materials on record.
12.It is the case of the respondents 1 to 3 that deceased was working as
Driver cum Cleaner in the service of 5th respondent. On 08.07.2014 at about
06.00 P.M., after loading the cotton goods, the deceased Mahendiran was
covering the cotton goods by standing on the top of the lorry. While so, the
4th respondent without any indication, suddenly started and moved the lorry.
Due to the same, the said Mahendiran fell down from the lorry, sustained
grievous injuries on the head and other parts of the body and died. The
respondents 1 to 3 in support of their claim, examined the 1st respondent as
P.W.1 and 4th respondent as P.W.2, who is the driver of the lorry at the time
of accident and marked F.I.R., which was registered against the 4th
respondent. On the contrary, it is the case of the appellant that respondents 1
to 3 have failed to prove the involvement of the lorry. The complaint was
given by one Parthiban, 3rd respondent herein, who is not an eyewitness to the
accident. The accident has taken place on 08.07.2014 and F.I.R. was
registered on 18.07.2014 after delay of 10 days. This creates suspicion about
the accident. To substantiate their claim, they examined one M.Baskar as
R.W.1 and one M.Jaganathan, 5th respondent herein as R.W.2 and marked
Ex.R1/letter from Vaniyambadi R.T.O. The Tribunal considering the
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C.M.A.No.406 of 2021
evidence of P.W.2, who was the driver of the offending lorry and F.I.R. was
registered as per the direction of the Court, held that accident occurred only
due to the negligence on the part of the 4th respondent/P.W.2. The contention
of the learned counsel appearing for the appellant that Tribunal erred in
relying on Ex.P7/postmortem report which is only a Mortuary label to hold
that respondents 1 to 3 proved that the death is due to the accident is contrary
to the materials on record. From the materials, it is seen that Tribunal relied
on Ex.P6/death report issued by the Sub-Inspector of Police, counter signed
by Dr.S.Karthiga Devi, Tutor in Forensic Medicine, Madras Medical College,
Chennai, who certified that postmortem was conducted on 26.07.2014, which
shows the death is due to the accident. In view of the same, the contention of
the learned counsel appearing for the appellant that there is suspicion as
respondents 1 to 3 failed to produce the treatment records and postmortem
report is without records. On appreciating the oral and documentary evidence,
the Tribunal held that accident has occurred only involving the lorry
belonging to 5th respondent driven by 4th respondent. There is no error in the
said finding of the Tribunal warranting interference by this Court.
13.The further contention of the learned counsel appearing for the
appellant that respondents 1 to 3 failed to prove that they are the legal heirs of
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C.M.A.No.406 of 2021
the deceased is without merits. The appellant has not denied that respondents
1 to 3 are the legal heirs of the deceased in the counter statement. Without
pleading, the appellant is not entitled to raise such a plea in the present
appeal.
14.As far as the contention of the learned counsel appearing for the
appellant that without deducting TDS (Tax Deductible at Source), the
Tribunal has directed the appellant to pay the entire award amount is
concerned, the Tribunal has fixed the monthly income of the deceased at
Rs.9,000/- per month and granted 25% enhancement towards future
prospects. By fixing monthly income at Rs.9,000/- and granting 25%
enhancement towards future prospects, the annual income of the deceased
comes to Rs.1,35,000/- [Rs.11,250/- (Rs.9,000/- + Rs.2,250/-) X 12]. The
accident occurred during July, 2014, which comes under financial year 2014
– 2015. During the Financial Year 2014 – 2015, there was no income tax
deduction upto Rs.2,50,000/-. In view of the same, the direction of the
Tribunal not to deduct TDS (Tax Deductible at Source) is not interfered with.
The total compensation awarded by the Tribunal is not excessive and the
same is hereby confirmed.
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C.M.A.No.406 of 2021
15.For the above reason, this Civil Miscellaneous Appeal is dismissed
and a sum of Rs.12,15,000/- awarded by the Tribunal as compensation to the
respondents 1 to 3, along with interest and costs is confirmed. The appellant-
Insurance Company is directed to deposit the award amount along with
interest and costs, less the amount if any already deposited, 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.432 of 2014 on the file of the Motor Accidents Claims Tribunal,
Special Sub Court, Tirupattur. On such deposit, the respondents 1 to 3 are
permitted to withdraw their respective share of the award amount as per the
ratio of apportionment fixed by the Tribunal along with proportionate interest
and costs after adjusting the amount, if any already withdrawn, by filing
necessary applications before the Tribunal. Consequently, the connected
Miscellaneous Petition is closed No costs.
22.02.2021
krk
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis/
C.M.A.No.406 of 2021
V.M.VELUMANI, J.
krk
To
1.The Special Subordinate Judge,
Motor Accidents Claims Tribunal,
Tirupattur.
2.The Section Officer,
VR Section,
High Court,
Madras.
C.M.A.No.406 of 2021
22.02.2021
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