Madras High Court
Shanmugam vs Matheswaran on 29 January, 2021
C.M.A. No.95 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.95 of 2021
1.Shanmugam
2.Muniammal .. Appellants
Vs.
1.Matheswaran
2.The Royal Sundaram Alliance Insurance Co. Ltd.,
Having its office at,
Lattice Bridge Road,
Adayar,
Chennai 600 020. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 29.01.2020, made
in M.C.O.P. No.580 of 2009, on the file of the IV Additional District Court,
(Motor Accident Claims Tribunal) Ponneri.
For Appellants : Mrs.A.Subadra
for M/s.K.M.Ramesh
For Respondents : Mrs.C.Harini (For R2)
for M/s. M.B.Raghavan
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C.M.A. No.95 of 2021
JUDGMENT
The matter is heard through "Video Conferencing".
This appeal has been filed against the award dated 29.01.2020, made in
M.C.O.P. No.580 of 2009, on the file of the IV Additional District Court,
(Motor Accident Claims Tribunal) Ponneri.
2.The appellants filed M.C.O.P. No.580 of 2009, on the file of the IV
Additional District Court, (Motor Accident Claims Tribunal) Ponneri,
claiming a sum of Rs.15,00,000/- as compensation for the death of one
Vijayakumar who died in the accident that took place on 05.07.2009.
3.According to the appellants, on the date of accident, while the
deceased was riding a Motorcycle bearing Registration No.TN-20-0029 from
Manjambakkam to Redhills, the driver of a Trailer Lorry bearing Registration
No.HR-04-N-8307 belonging to the 1st respondent which was going in front
of the Motorcycle in a rash and negligent manner, applied sudden brake
without indication. Due to the said impact, the deceased hit on the rear side of
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C.M.A. No.95 of 2021
the ongoing Lorry, fell down from the Motorcycle and sustained grievous
injuries and died on the spot. The accident occurred due to rash and negligent
driving by driver of the Lorry belonging to the 1st respondent. Hence, the
appellants filed the claim petition, claiming compensation against the
respondents as owner and insurer of the said Lorry respectively.
4.The 1st respondent, owner of the Lorry, filed counter statement and
denied all the averments made by the appellants. According to the 1 st
respondent, the Lorry belonging to him was insured with the 2nd respondent
for the period from 05.11.2008 to 04.11.2009 and driver of the Lorry
possessed valid driving license at the time of accident and hence, prayed for
dismissal of the claim petition as against him.
5.The 2nd respondent - Insurance Company filed counter statement and
denied all the averments made by the appellants. According to the 2 nd
respondent, the accident did not occur due to rash and negligent driving by
driver of the Lorry belonging to the 1st respondent and the accident occurred
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C.M.A. No.95 of 2021
due to collision of two vehicles. Hence, contributory negligence has to be
fixed on both the vehicles. The appellants have to prove that the driver of the
Lorry possessed valid driving license to ply the vehicle at the time of
accident. In any event, the appellants have to prove the age, avocation and
income of the deceased to claim compensation. The total compensation
claimed by the appellants is excessive and prayed for dismissal of the claim
petition.
6.Before the Tribunal, the 1st appellant examined himself as P.W.1, one
Pandiyan, eye-witness was examined as P.W.2 and 10 documents were
marked as Exs.P1 to P10. The 2nd respondent examined their Deputy Manager
as R.W.1 and marked 1 document as Ex.R1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that accident occurred due to negligence of both the deceased
as well as the driver of the Lorry and fixed 20% contributory negligence on
the part of the deceased and 80% negligence on the driver of the Lorry. The
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C.M.A. No.95 of 2021
Tribunal awarded a sum of Rs.14,98,000/- and directed the 2nd respondent-
Insurance Company to pay a sum of Rs.11,98,400/- being 80% of the award
amount, as compensation to the appellants.
8.Challenging the 20% contributory negligence fixed on the deceased
as well as not being satisfied with the amounts awarded by the Tribunal in the
award dated 29.01.2020, made in M.C.O.P. No.580 of 2009, the appellants
have come out with the present appeal.
9.The learned counsel appearing for the appellants contended that the
accident occurred only due to negligence of the driver of the Lorry who
suddenly applied brake without any signal. The appellants filed FIR and
marked the same as Ex.P1, which clearly supports the case of the appellants.
The Tribunal erroneously fixed 20% contributory negligence on the deceased
when the accident occurred solely due to negligence on the part of the driver
of the Lorry. The accident would not have occurred if the driver of the Lorry
had not applied sudden brake. The deceased was aged 25 years at the time of
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C.M.A. No.95 of 2021
accident. The Tribunal erroneously fixed the age of the deceased as 29 years.
The deceased was working as a Cleaner and was earning a sum of Rs.300/-
per day. The Tribunal fixed only a meagre sum of Rs.14,000/- per month as
notional income, including future prospects and deducted 50% towards
personal expenses. The amounts granted by the Tribunal under different
heads are meagre and prayed for setting aside the award of the Tribunal.
10.Mrs.C.Harini, learned counsel takes notice for the 2nd respondent-
Insurance Company and made submissions in support of the award passed by
the Tribunal and prayed for dismissal of the appeal.
11.Heard learned counsel appearing for the appellants as well as the 2nd
respondent-Insurance Company and perused the materials available on record.
12.It is the case of the appellants that while the deceased Vijayakumar was
riding his Motorcycle bearing Registration No.TN-20-0029 from
Manjambakkam to Redhills, driver of the Trailer Lorry belonging to the 1 st
respondent which was going in front of the Motorcycle, drove the Lorry in a
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C.M.A. No.95 of 2021
rash and negligent manner and applied sudden brake without any indication.
Due to the same, the deceased hit on the front side of the Lorry, fell down from
the Motorcycle, sustained grievous injuries and died on the spot. In support of
the case, the 1st respondent examined himself as P.W.1, one Pandiyan, eye
witness was examined as P.W.2 and marked the FIR as Ex.P1, which was
registered against the driver of the Lorry based on the complaint given by one
Dhinakaran. On the other hand, it is the case of the 2nd respondent-Insurance
Company that accident occurred due to collision of two vehicles and there is
contributory negligence on the part of the deceased. To prove their case, the 2nd
respondent examined their Deputy Manager as R.W.1 and marked the Rough
Sketch as Ex.R1. P.W.2 in his cross examination, has deposed that driver of the
Lorry was driving the Lorry on the left hand side of the road and suddenly came
to the right hand side, due to which the deceased dashed on the backside of the
Lorry. This portion of the evidence is contrary to the averments in the claim
petition, contents in the FIR and evidence of P.W.1. The Tribunal considering the
contents of FIR, evidence of P.W.2 and Rough Sketch, by giving valid reasons,
held that deceased has also contributed negligence to the accident and fixed 20%
contributory negligence on the part of the deceased. There is no error in the
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C.M.A. No.95 of 2021
award of the Tribunal fixing 20% contributory negligence on the deceased.
13.As far as the quantum of compensation is concerned, it is the
contention of the appellants that at the time of accident, the deceased was
working as a Cleaner and was earning a sum of Rs.300/- per day. They failed to
prove the same. The Tribunal in the absence of any materials, without any basis,
fixed the notional income of the deceased as Rs.14,000/- per month. The
accident is of the year 2009. The monthly income fixed by the Tribunal as
Rs.14,000/- is excessive, when the appellants themselves claimed that the
deceased was earning Rs.9,000/- per month. The appellants failed to prove the
age of the deceased by filing acceptable evidence. In the absence of any
acceptable evidence, the Tribunal considering Exs.P2 and P3 – death certificate
and death report respectively, fixed the age of the deceased as 29 years. The
compensation granted by the Tribunal by fixing Rs.14,000/- per month is
excessive. In view of the same, the appellants are not entitled for any
enhancement in the present appeal.
14.In the result, the appeal is dismissed and the amount awarded by the
Tribunal at Rs.14,98,000/- together with interest at the rate of 7.5% per
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C.M.A. No.95 of 2021
annum from the date of petition till the date of deposit is confirmed. The 2nd
respondent-Insurance Company is directed to deposit the sum of
Rs.11,98,400/-, being 80% of the award amount, along with interest and
costs, less the amount 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.580 of 2009. On such deposit, the appellants are permitted to withdraw
their share of the award amount, along with proportionate interest and costs,
as per the ratio of apportionment fixed by the Tribunal, after adjusting the
amount, if any already withdrawn, by filing necessary applications before the
Tribunal. No costs.
29.01.2021
Index : Yes / No
gsa
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C.M.A. No.95 of 2021
V.M.VELUMANI, J.,
gsa
To
1.The IV Additional District Judge,
(Motor Accident Claims Tribunal),
Ponneri.
2.The Section Officer,
V.R Section,
High Court, Madras.
C.M.A.No.95 of 2021
29.01.2021
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