Madras High Court
Mrs.K.Rajakumari vs The Chairman on 24 February, 2021
CMA(MD)No.663 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CMA(MD)No.663 of 2020
and
CMP(MD)No.2460 of 2020
1.Mrs.K.Rajakumari
2.Minor K.Sundareshwari
3.Minor K.Suganya
4.Minor K.Yoheshwaran
5.Mrs.M.Subbammal
(Minors 2 to 4 appellants rep. through
their mother/natural guardian Mrs.K.Rajakumari)
... Appellants/Petitioners
vs.
1.The Chairman,
Sripak Logistics(Pvt) Ltd.,
No.48/2, 2nd Floor, Rajaji Salai,
Chennai – 600 001.
2.The Branch Manager,
HDFC Ergo General Insurance Co. Ltd.,
Door No.9, Kamarajar Salai,
Reksh Towers,
Madurai – 605009. ... Respondents/Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the fair and decreetal order passed in M.C.O.P.No.1983 of
2017 on the file of the learned District and Sessions Judge/Communal Clashes
Court/Motor Accident Claims Tribunal, Madurai, dated 06.01.2020.
For Appellants : Mr.K.Kumaravel
For R2 : Mr.T.S.Murali
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CMA(MD)No.663 of 2020
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant against
the award and decree dated 06.01.2020 made in M.C.O.P.No.1983 of 2017 on
the file of the District and Sessions Judge/Communal Clashes Court/Motor
Accident Claims Tribunal, Madurai.
2. It is a case of fatal accident, which took place on 07.02.2016 at
01.15 a.m. The case of the claimants before the Tribunal is that on the date of
accident, when the deceased Mr.M.Krishnaram was under employment and
service of the State Express Transport Corporation, Chennai, as a Senior Driver,
he drove the bus bearing Registration No.N 01-N-7222 from Koyambedu Bus
Stand, Chennai, at about 23.05 hours, when the bus was running on the GST
Road, near Padalam, Thapal Medu, the first respondent's Driver parked his
Trailer Container Lorry bearing Registration No.TN-04-P-6769, without
blinking lights, red lamp and red triangle stand or stones around the parked
vehicle, cautioning the oncoming vehicle and hence, the deceased Driver could
not see the parked vehicle and could not avoid the collusion against the parked
vehicle and therefore, the bus hit against the back side of the container lorry
and in the said accident, the deceased Driver sustained fatal injuries and died on
the spot.
3. Pursuant to the accident, the claimants filed an application in
M.C.O.P.No.1983 of 2017 on the file of the District and Sessions
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CMA(MD)No.663 of 2020
Judge/Communal Clashes Court/Motor Accident Claims Tribunal, Madurai.,
seeking compensation.
4. Before the Tribunal, the claimants examined three witnesses as
P.Ws.1 to 3 and marked twenty documents as Exs.P.1 to P.20. On the side of
the respondents, neither a witness was examined nor documents were marked.
5. The Tribunal, after considering the pleadings, oral and documentary
evidence and the arguments advanced on either side and also appreciating the
evidence on record, held that the accident occurred due to the negligent act of
the Driver of the lorry as well as the deceased/Driver of the bus and fixed the
negligence at 75:25 and directed the Insurance Company to pay 75% of the
award amount arrived at by the tribunal.
6. Questioning the contributory negligence as well as quantum of
compensation, the present Civil Miscellaneous Appeal has been filed by the
claimants.
7. The learned counsel appearing for the appellants would submit that
despite overwhelming evidence available, the Court below had fixed 25%
contributory negligence on the deceased, which is not sustainable in the eye of
law.
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CMA(MD)No.663 of 2020
8. It is also the contention of the learned counsel for the appellants that
after the accident, the Conductor of the bus gave complaint against the Driver
of the lorry, but the police has registered a case against the dead person namely,
the Driver of the bus and that was objected and a complaint was sent to the
Deputy Superintendent of Police and the Conductor of the bus had let in
evidence, where he specifically stated that he had given complaint only against
the Driver of the lorry, But, F.I.R has been registered against the Driver of the
bus.
9. It is the specific contention of the learned counsel for the appellants
that the accident would not have occurred if the lorry had been parked on the
road with indicators or reflectors at night hours and there is no contra evidence
to rebut the same and if at all there has to be any rebuttal, it has to be done only
by the Driver of the Lorry or the Cleaner of the Lorry, who had parked the
vehicle. But, they have not examined as witnesses to let in evidence to rebut
the same and therefore, without any rebuttal by the Driver or the Cleaner of the
Lorry, the learned Judge ought not to have come to a conclusion of fixing the
contributory negligence on the deceased/Driver of the bus and prays for
appropriate orders.
10. With regard to quantum, the learned counsel for the
appellants/claimants would submit that the Court below has awarded only
lesser compensation under the head 'loss of love and affection' and therefore,
prays for appropriate orders.
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CMA(MD)No.663 of 2020
11. The learned counsel appearing for the Insurance company submits
that the Court below in Paragraph No.11 has rightly recorded the findings with
regard to the contributory negligence against the deceased on the basis of the
evidence available before it, which need not be interfered by this Court. He also
submits that the Court below has awarded just and reasonable compensation
and therefore, prays for the dismissal of this civil miscellaneous appeal.
12. Heard the learned counsel appearing for the respective parties and
perused the materials available on record.
13.As far as the contributory negligence is concerned, there is no contra
evidence by the Driver of the Lorry and it is only the insurer, who was not on
the spot has stated that the lorry was parked with lights and therefore, when
there is no contra evidence to show that the lorry was parked with indicators,
the learned Judge ought not to have fixed the contributory negligence on the
part of the deceased/Driver of the bus. I find much force on the submission of
the learned counsel appearing for the appellants/claimants. Therefore, the
finding of the Tribunal fixing 25% contributory negligence on the deceased
stands set aside and is modified to the effect that the Driver of the lorry alone is
responsible for the accident occurred and as the Insurer, the second
respondent/Insurance Company is liable to pay the total compensation awarded
by the Tribunal ie., Rs.34,03,736/- to the claimants.
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CMA(MD)No.663 of 2020
14. Coming to the question of quantum of compensation, it is seen that
the compensation awarded by the Court below is just and reasonable and the
same is confirmed by this Court.
15. In the result, the appellants/claimants are entitled to compensation of
Rs.34,03,736/- as against Rs.25,52,802/- awarded by the Tribunal. From the
enhanced portion of compensation ie., Rs.8,50,934/-, the first appellant is
entitled to get Rs.4,50,934/- and the appellants 2 to 5 are entitled to get
Rs.1,00,000/- each. The second respondent/Insurance company is directed to
deposit the modified compensation of Rs.34,03,736/- with 7.5% interest per
annum from the date of petition till the date of deposit, and costs, less the
amount already deposited, if any, to the credit of the claim petition within a
period of eight weeks from the date of receipt of a copy of this judgment.
On such deposit, the 1st and 5th appellants are permitted to withdraw their share
with proportionate interest without filing formal permission petition before the
Tribunal. The rest of the directions granted by the Tribunal remain undisturbed.
16.With the above direction, this Civil Miscellaneous Appeal is allowed
in part. No costs.
Index :yes/No 24.02.2021
Internet:yes/No
pm
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CMA(MD)No.663 of 2020
To
1.The District and Sessions Judge/
Communal Clashes Court/
Motor Accident Claims Tribunal,
Madurai.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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CMA(MD)No.663 of 2020
J.NISHA BANU, J.
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CMA(MD)No.663 of 2020
24.02.2021
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