Madras High Court

Branch Manager vs Saraswathi on 21 January, 2021

                                                                          C.M.A.No.1170 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 21.01.2021

                                                     CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                              C.M.A.No.1170 of 2020
                                                      and
                                              C.M.P.No.7339 of 2020
                   Branch Manager
                   National Insurance Company Ltd.
                   Anuradha complex
                   Bangalore road, Krishnagiri.                                 ... Appellant

                                                       Vs.
                   1.Saraswathi

                   2.C.K.Saravanan

                   3.T.Palani

                   4.Branch Manager
                   ICICI Lombard General Insurance Co. Ltd.
                   No.647/1B3, CVN 2nd extension, II floor
                   Byepass road, Hosur.
                   5.G.Mahalingam                                              .. Respondents

                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                   Vehicles Act, 1988, against the judgment and decree dated 26.11.2018 made
                   in M.C.O.P.No.26 of 2016 on the file of Motor Accident Claims Tribunal,
                   Additional District and Sessions Court, Krishnagiri.


                   1/15


https://www.mhc.tn.gov.in/judis/
                                                                                  C.M.A.No.1170 of 2020

                                             For Appellant     : Mr.D.Bhaskaran

                                             For R1 and R2     : No appearance

                                                       JUDGMENT

This matter is heard through “Video-conferencing”.

This Civil Miscellaneous Appeal has been filed by the

appellant/Insurance Company challenging the award dated 26.11.2018 made

in M.C.O.P.No.26 of 2016 on the file of Motor Accident Claims Tribunal,

Additional District and Sessions Court, Krishnagiri.

2.The appellant/Insurance Company is 4th respondent in

M.C.O.P.No.26 of 2016 on the file of Motor Accident Claims Tribunal,

Additional District and Sessions Court, Krishnagiri. The respondents 1 and 2

filed the said claim petition claiming a sum of Rs.1,00,00,000/- as

compensation for the death of their son viz., Shanmugham, who died in the

accident that took place on 09.10.2015.

3.According to the respondents 1 and 2, on the date of accident, i.e., on

09.10.2015, at 11.00 hours, while the deceased Shanmugam was riding in a

motorcycle belonging to the 3rd respondent insured with the 4th respondent

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near TAMIN in Bargur to Krishnagiri road, along with his friends Ashok and

Harish as pillion riders on the left side of the road, the driver of the Eicher

lorry belonging to the 5th respondent insured with the appellant, who was

coming in the opposite direction in a wrong side, drove the same in a rash and

negligent manner, dashed against the motorcycle of the deceased and caused

the accident. In the accident, the deceased sustained fatal injuries and died in

the hospital. Therefore, the respondents 1 and 2 filed the above claim

petition claiming compensation against the respondents 3 to 5 and appellant.

4.The respondents 3 and 5, owners of motorcycle and Eicher lorry

respectively, remained exparte before the Tribunal.

5.The 4th respondent/Insurance Company insurer of the motorcycle

filed counter statement denying the averments made in the claim petition and

stated that the motorcycle was not insured with the 4th respondent/Insurance

Company. The driver of the Eicher lorry belonging to the 3 rd respondent alone

drove the vehicle in a rash and negligent manner and caused the accident.

F.I.R. was registered against the driver of the Eicher lorry. Therefore, the 4th

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respondent/Insurance Company is not liable to pay any compensation to the

respondents 1 and 2. The 4th respondent/Insurance Company has also denied

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

compensation claimed by the respondents 1 and 2 is excessive and prayed for

dismissal of the claim petition.

6.The appellant/Insurance Company insurer of the Eicher lorry filed

counter statement denying the averments made in the claim petition and

stated that the driver of the Eicher lorry did not have valid driving license to

drive the vehicle. The Eicher lorry was not insured with the

appellant/Insurance Company at the time of accident. The deceased alone

rode the motorcycle in a rash and negligent manner, suddenly crossed the

road without noticing the oncoming vehicles and invited the accident. The

accident has occurred solely due to rash and negligent riding by the deceased.

The driver of the Eicher lorry is not responsible for the accident. At the time

of accident, three persons travelled in the motorcycle, in violation of the

Motor Vehicle Rules. Therefore, the appellant/Insurance Company is not

liable to pay any compensation to the respondents 1 and 2. In any event, the

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compensation claimed by the respondents 1 and 2 is excessive and prayed for

dismissal of the claim petition.

7.Before the Tribunal, 1st respondent, mother of the deceased,

examined herself as P.W.1, one Karthik, employer of the deceased was

examined as P.W.2, one Ashok, eye-witness to the accident, was examined as

P.W.3 and 15 documents were marked as Exs.P1 to P15. The 4 th

respondent/Insurance Company and the appellant/Insurance Company

examined one Mr.Radhakrishnan, Assistant, R.T.O. Krishnagiri as R.W.1, one

Mr.Manickam, Special Sub-Inspector of Police, as R.W.2, one

Mr.Mithunmaharaja, Law Officer of 4th respondent/Insurance Company as

R.W.3, one Mahalingam, owner of the Eicher lorry, the 5th respondent herein

as R.W.4 and one Mr.Radhakrishnan, as R.W.5 and marked five documents

as Exs.R1 to R5.

8.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 Eicher lorry belonging to the 5th respondent, fixed 10%

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contributory negligence on the part of the deceased for not wearing helmet,

awarded a sum of Rs.46,46,000/- as compensation to the respondents 1 and 2,

directed both the 5th respondent as well as the appellant/Insurance Company

being insurer of the said Eicher lorry to jointly and severally pay a sum of

Rs.41,81,400/- being 90% of the compensation to the respondents 1 and 2

and dismissed the claim petition as against the respondents 3 and 4, owner

and insurer of the motorcycle respectively.

9.Against the said award dated 26.11.2018 made in M.C.O.P.No.26 of

2016, the appellant/Insurance Company has come out with the present appeal.

10.The learned counsel appearing for the appellant contended that the

accident has occurred only due to negligence of the deceased, who failed to

exercise reasonable care while driving the vehicle. The Tribunal erroneously

fixed only 10% contributory negligence instead of fixing negligence equally

on the deceased and driver of the Eicher lorry. The learned counsel for the

appellants further contended that the deceased was aged 21 years at the time

of accident, after completion of his studies, there is no guarantee for future

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employment. P.W.2 examined by the respondents 1 and 2 to prove that the

deceased was doing part time employment, has not produced any

employment particulars like payment vouchers, cash memos, muster role,

attendance register, I.D. Card, account books or bank account to show that

the deceased was paid salary and commission. The respondents 1 and 2 have

not even filed bank details and I.D. card with regard to employment of the

deceased issued by the alleged employer. The evidence of P.W.2 is without

any materials and supporting document. Only for the purpose of claiming

compensation, he was examined. At the time of accident, the deceased was a

student. The Tribunal erroneously fixed a sum of Rs.30,000/- per month as

notional income of the deceased. The compensation awarded by the Tribunal

is excessive.

11. In support of his contentions, the learned counsel for the appellant

relied on -

(i) judgment dated 18.01.2019 in C.M.A.No.3082 of 2018 (Lingesan

and another vs. Kannan and another);

(ii) judgment dated 24.02.2020 in C.M.A.No.297 of 2020 (Uma

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Madhavan and another vs. G.Gunasekaran and another) and

(iii) judgment dated 19.02.2020 in C.M.A.No.590 of 2020

(P.Manjula and others vs. Balineni Sai Venkat Nitheesh and another) and

contended that for the accident occurred in the year 2011, 2018 and 2016, this

Court fixed a sum of Rs.12,000/-, Rs.15,000/- and Rs.15,000/- per month for

the Engineering students respectively. In the present case, the accident has

occurred on 09.10.2015. Hence, a sum of Rs.30,000/- per month fixed by the

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

12.Though the respondents 1 and 2 entered appearance through

counsel, there was no representation for them when the matter was taken up

for hearing on 11.01.2021. Hence, the matter was adjourned to 18.01.2021

and 21.01.2021. On those days also, there was no representation for the

respondents. When the matter is taken up for hearing today, there is no

representation for the respondents 1 and 2 today also.

13. In C.M.P.No.7339 of 2020 filed by the appellant/Insurance

Company for stay, the respondents 1 and 2 filed counter affidavit stating that

the appeal filed by the appellant/Insurance Company is without any valid

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grounds. The accident has occurred only due to rash and negligent driving by

the driver of the Eicher lorry belonging to the 5th respondent. The Tribunal

has awarded a sum of Rs.46,46,000/- as compensation to the respondents 1

and 2 and after deducting 10% contributory negligence fixed on the part of

the deceased, directed the 5th respondent and the appellant to pay a sum of

Rs.41,81,400/- being 90% of the award amount as compensation and

permitted the claimants to withdraw 50% of the amount deposited. As per the

award of the Tribunal, the appellant is liable to pay a sum of Rs.52,26,750/-

along with interest till date. This Court granted stay on 08.07.2020 in

C.M.P.No.7339 of 2020 in C.M.A.No.1170 of 2020. Therefore, the

respondents 1 and 2 deprived of getting 50% of the claim amount and prayed

for vacating the interim stay and releasing the award amount.

14.Heard the learned counsel appearing for the appellant and perused

the entire materials on record.

15.It is the case of the respondents 1 and 2 that while the deceased was

riding his motorcycle, the driver of the Eicher lorry belonging to the 5th

respondent drove the same in a rash and negligent manner, dashed against the

motorcycle driven by the son of the respondents 1 and 2 and caused the

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accident. Due to the injuries sustained in the accident, their son died. The

respondents 1 and 2 examined eye-witness who travelled along with the

deceased as P.W.3 and marked F.I.R. as Ex.P1. On the other hand, it is the

case of the appellant that the deceased along with two pillion riders without

wearing helmet rode the motorcycle in a rash and negligent manner and

dashed against the Eicher lorry coming in the opposite direction. To prove

their stand, the appellant examined R.W.1 to R.W.5. R.W.4/owner of the

Eicher lorry, 5th respondent herein, admitted that the accident has occurred,

when he came from left hand side to right hand side and due to his

negligence, the accident has occurred. The Tribunal considering the evidence

of R.W.4 along with the evidence of P.W.3, F.I.R. and charge sheet, held that

the accident has occurred only due to rash and negligent driving by the driver

of the Eicher lorry belonging to the 5th respondent. The Tribunal considering

the fact that the deceased was not wearing helmet at the time of accident,

fixed 10% contributory negligence on the deceased. There is no error in the

award of the Tribunal fixing negligence on the driver of Eicher lorry and on

the deceased warranting interference by this Court.

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

respondents 1 and 2 that the deceased was an Engineering student studying

B.E. III year in Archana College of Engineering, Thimmapuram. He was

working as a part time worker in Amman Tractors, Krishnagiri and was

earning a sum of Rs.20,000/- per month. To prove the said contention, the

respondents 1 and 2 marked Ex.P14/salary certificate and examined P.W.2, in

whose company the deceased alleged to have worked. P.W.2 has not produced

any supporting documents like payment vouchers, cash memos, muster role,

attendance register, I.D. Card, account books and bank account. The Tribunal

without properly appreciating the evidence of P.W.2 and failure on the part of

the respondents 1 and 2 that their son was doing part time job, erroneously

applied the ratio laid down in the judgment of the Division Bench of this

Court reported in 2016 (2) TNMAC 424 (DB) (S.Saraswathy and another

vs. A.Elumalai and another). In the said judgment, the claimants therein

have proved that there was a family business, the deceased had share in the

family business and produced Income Tax returns. In the present case, the

respondents 1 and 2 have not substantiated that the deceased was earning a

sum of Rs.20,000/- per month by doing part time job by producing any

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supporting document. In view of the same, the ratio laid down in the

judgment of the Division Bench of this Court relied on by the Tribunal, cited

supra, is not applicable to the facts of the present case.

17. In the present case, the respondents 1 and 2 contended that the

deceased was III year B.E. student in Archana College of Engineering,

Thimmapuram, they produced Ex.P10/mark sheet, Ex.P11/XII standard mark

sheet, Ex.P12/X standard mark sheet and Ex.P13/Transfer Certificate.

Considering the fact that the deceased was an Engineering student and would

have got reasonable job after completing his education and considering the

date of accident, a sum of Rs.15,000/- per month is fixed as notional income

of the deceased. The deceased was aged 21 years at the time of accident. The

Tribunal granted 40% enhancement towards future prospects, deducted 50%

towards personal expenses and applied multiplier '18', which are proper. By

fixing the monthly income as Rs.15,000/-, the compensation granted by the

Tribunal towards loss of dependency is modified to Rs.22,68,000/-

(Rs.15,000/- + 6000 [Rs.15,000/- X 40%] X 12 X 18 X 1/2). The

compensation awarded by the Tribunal under all other heads are just and

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reasonable and hence, the same are hereby confirmed. Thus the compensation

awarded by the Tribunal is modified as follows:

                    S.No           Description    Amount          Amount       Award confirmed
                                                 awarded by    awarded by this or enhanced or
                                                  Tribunal         Court         granted or
                                                    (Rs)            (Rs)           reduced
                   1.          Loss of             45,36,000        22,68,000 Reduced
                               dependency
                   2.          Loss of filial         80,000           80,000 Confirmed
                               consortium
                   3.          Loss of estate         15,000           15,000 Confirmed
                   4.          Funeral                15,000           15,000 Confirmed
                               expenses
                               Total               46,46,000      23,78,000 Reduced by
                              90% of the        41,81,400         21,40,200 Rs.20,41,200/-
                              award amount                                  (Rs.41,81,400 -
                                                                            Rs.21,40,200)

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

partly allowed. The compensation of Rs.46,46,000/- awarded by the Tribunal

is hereby reduced to Rs.23,78,000/- together with interest at the rate of 7.5%

per annum from the date of petition till the date of deposit. The 5th

respondent and the appellant/Insurance Company are directed to jointly and

severally deposit a sum of Rs.21,40,200/- being 90% of the award amount

now determined by this Court along with interest and costs, less the amount

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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 and 2 are

permitted to withdraw the modified award amount now determined by this

Court, as per the apportionment made by the Tribunal, along with