Madras High Court

The Branch Manager vs Sarasumani on 26 February, 2021

                                                             1                      CMA No.1354 OF 2017




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 26.02.2021

                                                         CORAM:

                                   THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

                                                 C.M.A.No.1354 of 2017


                     The Branch Manager,
                     M/s.Iffco Tokio General Insurance Company Limited,
                     No.5, College Road,
                     2nd Cross, Tiruppur.                                             ...Appellant
                                                        Vs

                     1.Sarasumani
                     2.Sureshkumar (Minor)
                     3.Santhosh Kumar (Minor)
                      (Minor respondents 2 and 3 rep. by mother
                       and NF 1st respondent)
                     4.Rangasamy
                     5.S.Saravanakumar                                          ...Respondents
                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988, against the judgment and decree dated 16.04.2012 made
                     in M.C.O.P.No.1479 of 2010 on the file of the Motor Accidents Claims
                     Tribunal, II Additional District Court, Tiruppur.
                                     For Appellant           : Mr.E.Rajadurai for
                                                                 M/s.M.B.Gobalan Associates
                                     For Respondents         : Mr.Karann Damani for R1 to R3
                                                               for Mr.Ma.P.Thangavel
                                                               No Appearance for R4 and R5


https://www.mhc.tn.gov.in/judis/
                                                            2                    CMA No.1354 OF 2017


                                                    JUDGMENT

Heard the learned counsel for the appellant and the learned counsel

for the respondents 1 to 3.

2.The appeal is filed by the Insurance Company challenging the

award passed by the Tribunal granting compensation of Rs.9,41,200/- to the

dependents of the deceased Durairaj.

3.The background facts of the case is that on 29.09.2010, at about

08.30 p.m., when the deceased Durairaj on the pillion along with rider

Rangasamy while travelling in the TVS XL Super Moped bearing

Registration No.TN28 AP 7149 met with an accident, in which the said

Durairaj was badly injured. He was admitted in the Coimbatore Medical

College Hospital for his treatment but did not survive and died on

05.10.2010. The accident occurred due to the negligence of the rider of the

two wheeler. A claim petition was filed by the dependents of the deceased

Durairaj. A sum of Rs.10,00,000/- was sought as compensation by them on

the premise that the deceased was earning Rs.400/- per day as Mason and he

was 49 years old at the time of death. Due to the death of Durairaj, as

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dependents they have lost his income and company.

4.The claim petition was resisted by the Insurance Company on the

ground that the accident did not occur in the manner stated in the claim

petition. It is false to allege that the accident caused due to the negligence

of the two wheeler rider. In fact, the First Information Report was given

against the unknown hit and run vehicle. The Insurance Company which

has insured the two wheeler is not liable to pay any compensation to the

claimants, since there is no fault on the part of the two wheeler rider.

5.The trial court relying upon the ocular evidence as P.W.2 deposed

before this Court the accident occurred due to the negligence of the two

wheeler rider, overlooked the content of the F.I.R. which has attributed the

negligence on the unknown hit and run vehicle. Based on the other

evidence, award of Rs.9,41,200/- was granted for the claimants.

6.In this appeal, the Insurance Company has assailed the award of the

Tribunal on the ground that the Tribunal failed to take note of the F.I.R.

which attributes negligence on an unknown vehicle. While so, the claim

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petition ought to have filed either under Section 140 under no fault liability

or under Section 163A of the M.V. Act, the special provision as to payment

of compensation on structured formula without proving the negligence

whereas the petition filed under Section 166 of the Motor Vehicles Act, the

claimants are supposed to prove the negligence of the offending vehicle.

While the fact and evidence attributes negligence on an unknown vehicle,

the Tribunal ought not to have fastened the liability to compensate the

claimants.

7.Learned counsel for the respondents submitted that the content of

the F.I.R. is not sacrosanct or conclusive proof. It only sets criminal law

into motion and in case of motor accident claim, it should be taken only for

ascertaining whether any motor accident occurred or not and not beyond

that. Relying upon the judgment of the Supreme Court rendered in Ravi vs

BadriNarayanan, 2011(4) SCC 693, learned counsel for the respondents

submitted that neither the delay in F.I.R. nor the content of the F.I.R shall

deprive the claimant from seeking fair and just compensation for the loss of

Durairaj. Learned counsel submitted that it is a proven case of motor

accident involving two motor vehicle. Even if the offending vehicle is an

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unknown vehicle, the Insurance Company, which has insured the two

wheeler cannot escape liability, when the claimant is a third party. The case

of composite negligence as held by the Supreme Court in Pawankumar and

another vs Harikrishan Dass Mohanlal and another reported in 2014(3)

SCC 590, the injured claimant or the dependent of the deceased victim are

entitled to seek compensation jointly or severally against both the offending

vehicle driver or either of them.

8.Per contra, the learned counsel appearing for the appellant relying

upon the judgment of the Supreme Court in Surender Kumar Arora and

another vs. Dr.Manoj Bisla and other reported in 2012 ACJ 1305,

submitted that following the judgment of the Supreme Court in Meena

Variyal case, (2007 ACJ 1284), the Supreme Court has held that when a

petition filed by the claimants under Section 166 of the Act, it is the

responsibility of the claimants to establish that the rider of the vehicle

against whom claim is made to prove the rash and negligent driving of the

said rider/driver. In this case, there is no evidence to show that the rider of

the two wheeler was at fault for rash and negligent driving. The evidence of

P.W.2 contrary to the content of the F.I.R is unbelievable, since his presence

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at the time of accident not corroborated by any other attendant

circumstances. Therefore, the learned counsel for the appellant submitted

that the Tribunal has grossly held in fixing the responsibility and liability on

the Insurance Company when its driver was not at fault.

9.After considering the rival submission and the judgments relied by

the learned counsels and on going through the provisions of law, this Court

finds that the claim petition filed under Section 166 of the Motor Vehicles

Act and the statute is very clear that whenever claim petition filed under

Section 166 of the Act, it is the responsibility of the claimant to prove the

negligence of the offending vehicle, contra to the provisions of Section

163A of the Act, where there is no responsibility on the part of the claimant

to prove negligence. In this case, contra evidence placed before this Court

regarding the offending vehicle and the offender. As per the F.I.R., the

offending vehicle is an unknown vehicle whereas P.W.2, who alleged to

have seen the occurrence, had deposed the offender is the two wheeler rider.

10.The F.I.R. relied by the claimants is dated 05.10.2010 for the

accident alleged to have happened on 29.09.2010. The cause for delay as

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found in the complaint itself indicates that the victim who sustained injury

took first aid and came back to home only on the next day, after developing

complications, he had been admitted in the hospital. But even then, there is

no valid reason or explanation as to why there was an enormous delay of six

days in lodging the complaint. Though delay in lodging the complaint is

not fatal but possibility of embellishment cannot be ruled out. The evidence

of P.W.2 relied by the claimants also bristles with suspicion, since his

present at the scene of accident not been properly explained and why he did

not lodge complaint to the police immediately also not explained. P.W.2 is

not a stranger but a known person to the victim. In the said circumstances,

it is hard to believe that the accident must have happened in the manner in

which the claimants have stated in the claim. At the same time, this Court

cannot be oblivious of the fact that the death of Durairaj is due to the motor

accident. Unfortunately, the claim petition is filed under Section 166 of the

Motor Vehicles Act where the burden of proving the negligence of the

offending vehicle driver is on the claimant and also the claim petition is

filed with the plea that the deceased was earning Rs.400/- per day at the

time of accident, make the claimant ineligible to file petition under Section

163A.

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11.With a view to provide compensation to the claimant who now

deprived of the breadwinner, this Court convert the claim petition filed

under section 166 as petition under Section 163A and award compensation

as per the structured formula taking note of the contribution of the two

wheeler rider for the accident caused.

12. Accordingly, applying the structured formula restricting the

income of the deceased at Rs.40,000/- per annum, after deducting 1/3 for

his personal expenditure and applying multiplier ‘13’, the loss of income is

computed at (40,000X13X2/3). The award is modified as follows:

Compensation under Various Award passed by this Heads Court Loss of earning Rs.3,46,666/-

                                   (40,000X13X2/3)
                                   Funeral Expenses                   Rs.   2,000/-
                                   Loss of consortium                 Rs.   5,000/-
                                   Loss of Estate                     Rs.   2,500/-
                                                          Total       Rs.3,69,500/-

13.Accordingly, the claimants are entitled for compensation of

Rs.3,69,500/- with interest at 7.5% interest from the date of claim petition

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till the date of realisation. The said amount shall be apportioned by the

claimants equally. The award amount shall be deposited by the appellant

within a period of twelve weeks from the date of receipt of a copy of this

judgment. On such deposit, the claimants are permitted to withdraw their

respective share with accrued interest on appropriate application.