Madras High Court
The New India Assurance Company ... vs V.Nagarani on 4 January, 2021
C.M.A(MD)No.704 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.01.2021
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.A(MD) No.704 of 2020
and
CMP(MD).No.7157 of 2020
The New India Assurance Company Ltd.,
Viliparli (D.O.II),
Jevanseva Pledge,
II Floor, S.V.Road,
Santgurus (W),
Mumbai - 400 054. ... Appellant/2nd respondent
vs.
1. V.Nagarani
2. Minor Menaka
3. Minor Kumaran
4. M.Kuzhanthaivelu
5. Thanga Irulayee ... Respondents 1 - 5/
Claimants
6. Malaisamy ... 6th Respondent/
1st Respondent
7. Vasu
8. The Manager,
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C.M.A(MD)No.704 of 2020
United India Insurance Company Limited,
S.N.S.Complex (First Floor),
Varatharajan Nagar, Cumbum Road,
Thenkarai, Periyakulam,
Theni District. ... Respondents 7 and 8/
Respondents 3 and 4
Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
to call for the records relating to the Fair Order and Decreetal Order
dated 03.03.2020, passed in M.C.O.P.No.26 of 2018 by the learned
Motor Accident Claims Tribunal, Additional District Judge (FTC), Theni
and set aside the same.
For Appellant : Mr.D.Malaichamy
JUDGMENT
This appeal has been filed against the judgment and decree dated
03.03.2020 made in M.C.O.P.No.26 of 2018, on the file of the Motor
Accident Claims Tribunal, Additional District Court (FTC), Theni.
2. The case of the claimants before the Tribunal:-
On 14.10.2017, the deceased Velmurugan was riding his
motorcycle bearing registration number TN 60 M 8066 belonging to the
7th respondent/3rd respondent, who insured the vehicle with 8th
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C.M.A(MD)No.704 of 2020
respondent/4th respondent - United India Insurance Company, from
Kanniyappapillaipatty to Mottanuthu road. When he was nearing the
place of occurrence, at about 06.30 a.m., opposite to Koppaiyampatty
Muthu shop the Ward from west to east, the motor cycle bearing
Registration number TN 60 P 7886 belonging to the 6th respondent/1st
respondent insured with the appellant/2nd respondent, came from the
opposite direction driven by rider Velmurugan in rash and negligent
manner without observing the traffic rules and regulations came to the
wrong side of the road and dashed against the motorcycle of the
deceased. As a result of which, the deceased sustained serious injuries
and was taken to Theni Government Hospital and from there transfer to
Madurai Government Hospital. Due to injuries caused by the accident,
the deceased was died on 17.10.2017. In respect of the occurrence, a case
in Crime No.485 of 2017 was registered on the file of Rajathani Police
Station for the offences under Sections 279 and 337 IPC against the
driver of the 6th respondent/1st respondent. Therefore, the Claimants 1
to 5 are claiming a sum of Rs.27,00,000/- towards the compensation.
3. The learned Counsel appearing on behalf of the appellant/the
New India Assurance Company argued that since the deceased was
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C.M.A(MD)No.704 of 2020
unconscious after happening of the accident, the First Information Report
was registered against the deceased by the complaint given by the 1st
respondent as per the petition. The First Information Report was
registered against the deceased and the charge sheet was also against the
deceased as charge abated. He would further submitted that the deceased
drove his vehicle without having licence, without wearing helmet and
without following the traffic rules of the road in rash and negligent
manner and without noticing the movement of the 6th respondent/1st
respondent's vehicle and dashed against the 6th respondent/1st
respondent and invited the accident. Due to the sole negligence on the
part of the deceased, the appellant/Insurance Company is not liable for
contributory negligence and on this aspect, it is not liable to pay any
amount as compensation to the Claimants. It is also contended that the
Tribunal ought not to have apportioned the negligence equally and
mulcted liability of 50% on the appellant. The Tribunal has erroneously
fixed the monthly income of the deceased at Rs.12,000/- which is higher
side for an agriculture coolie. Further the Tribunal has applied 40%
increment for future prospects, since the avocation of the deceased is not
a permanent one.
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C.M.A(MD)No.704 of 2020
4. According to the 8th respondent/4th respondent - United India
Insurance Company, the owner of the deceased vehicle is not cooperating
with the Insurance Company and effectively conduct this case with
ulterior motives and colluding with the appellant/2nd respondent to
cause irreparable loss and injuries to the 8th respondent's Insurance
Company.
5. On the side of the claimants, 3 witnesses were examined and 6
documents marked. On the side of the respondents, 3 witnesses were
examined and 3 document marked and 7 official documents Ex.X1 to
Ex.X7 were marked.
6. At the conclusion of the enquiry, the Tribunal after considering
the materials available on record, more particularly, MV Report of the
vehicle driven by the deceased as well as the Ex.R1 and compiling the
evidence of PW2 and RW1, came to the conclusion that the negligence is
on the part of 6th respondent/1st respondent and the deceased equally as
they are compositely negligent. Regarding the compensation, the
Tribunal fixed the same at Rs. 23,78,000/- with 7.25% interest.
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C.M.A(MD)No.704 of 2020
7. Challenging the quantum as well as the liability, the instant
appeal has been preferred by the 2nd respondent/Insurance Company.
8. I have heard the learned counsel appearing for the appellant and
perused all the materials available on record.
9. Insofar as the liability is concerned, 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 there was composite negligence on the part of 6th
respondent/1st respondent and the deceased equally by considering the
accident investigation report and the evidence of PW2 and RW1.
Though, the First Information Report reveals that the deceased drove the
vehicle in a rash and negligent manner and dashed against the vehicle of
the 6th respondent/1st respondent, it was registered while the deceased
was in unconscious condition and it could not be taken as a lone
substantive evidence. However, considering the damages as head on
collusion, the Tribunal fixed the negligence on both riders and arrived at
the ratio 50:50.
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C.M.A(MD)No.704 of 2020
10. In respect of the 3rd respondent is concerned, the insurance
policy of the vehicle driven by the deceased contains personal accident
cover and a sum of Rs.50/- was received towards personal accident along
with compulsory excess of Rs.100/-. The payment of personal accident
cover do not depend upon the negligence of the driver and in this case,
no policy conditions produced before the Tribunal. It is also to be noted
that nothing was culled out before the Tribunal to substantiate that the
deceased was not having valid license. Hence, the 8th respondent/4th
respondent is liable to pay a sum of Rs.1,00,000/- with interest, which
has been rightly fixed by the Tribunal.
11. As far as the contention of the appellant/2nd respondent, in
respect of fixing monthly income of the deceased is concerned, based on
the Ex.X1 Postmortem certificate, the age of the deceased was 38 years
at the time of occurrence and the same has not been seriously disputed by
the appellant/2nd respondent. The deceased was aged about 38 years and
before the accident, the deceased was working as agricultural coolie and
earning a sum of Rs.15,000/- per month. In that view of the matter, the
Tribunal, by relying upon the decision of the Hon'ble Supreme Court in
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C.M.A(MD)No.704 of 2020
Syed Sadiq and others Vs. Divisional Manager, United India
Insurance Company Limited, reported in 2014 ACJ 627, fixed the
monthly income as Rs.12,000/-. Since the size of the family is five as per
the judgement Smt.Sarla Verma vs. Delhi Transport Corporation
reported in 2009(2) TN MAC 1(SC), 1/4th amount has been deducted for
personal expenses, which does not warrant any interference.
12. As far as the contention of the appellant in respect of future
prospects is concerned, as per judgment of the Hon'ble Supreme Court in
National Insurance Company Limited vs Pranay Sethi and others,
reported in 2017 (2) TN MAC 609 (SC), the Tribunal has rightly fixed
40% of income as future prospects as such it is calculated as Rs.12,000 +
40% = Rs.16,800 X 12 X 15 X 3/4 = Rs.22,68,000/-.Further as per the
above judgment of the Hon'ble Supreme Court in Pranay Sethi case
(supra), the Tribunal awarded a sum of Rs.15,000/- towards loss of
estate and Rs.15,000/- towards funeral expenses and the 1st petitioner
wife is entitled for Rs.40,000/- as consortium. As per the decision
reported in 2018 ACJ 2782, Magma General Insurance Company Ltd.,
Vs. Nanu Ram Alias Chuhru Ram, considering the 2nd petitioner being
the minor, Filial consortium of Rs.40,000/- was awarded. Therefore, in
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C.M.A(MD)No.704 of 2020
total, the Tribunal fixed the compensation at Rs.23,78,000/-. Since, the
composite negligence as against the deceased was equally at 50%, the
appellant/2nd respondent is directed to pay a sum of Rs.11,89,000/- and
the 8th respondent/4th respondent is directed to pay a sum of Rs.
1,00,000/- towards compensation to the claimants with interest at the rate
of 7.25% per annum from the date of petition to till the date of
realization of the amount and therefore, in my opinion, the quantum of
compensation fixed by the learned Judge is very reasonable and there is
no infirmity in the award passed by the Tribunal.
13. In the result, this Civil Miscellaneous Appeal is dismissed.
The appellant/New India Assurance Company and the respondent No.
8/respondent No.4 are directed to deposit the entire award amount as
apportioned by the Tribunal to the credit of M.C.O.P.No.26 of 2018, on
the file of the Motor Accident Claims Tribunal, Additional District Court
(FTC), Theni, less the amount already deposited, if any, along with
interest at the rate of 7.25% per annum from the date of petition till date
of realisation and proportionate costs, within a period of six weeks from
the date of receipt of a copy of this judgment. On such deposit, the
Tribunal is directed to transfer the said amount and deposit the same to
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C.M.A(MD)No.704 of 2020
the credit of C.M.A.(MD)No.26 of 2018, before the Indian Bank, High
Court Branch, Madurai, which amount shall be deposited by the Indian
Bank in an interest bearing account. On such deposit, the major claimants
are permitted to withdraw the entire award amount along with accrued
interest as apportioned by the Tribunal. Insofaras the share of the minors/
respondents 2 and 3 are concerned, the first respondent, the
mother/guardian of the minor, is permitted to withdraw the interest
accrued thereon once in three months for the welfare of the minors, till
they attain majority. No costs. Consequently, connected civil
miscellaneous petition is also dismissed.
04.01.2021
Internet : Yes / No
Index : Yes / No
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C.M.A(MD)No.704 of 2020
To
The New India Assurance Company Ltd.,
Viliparli (D.O.II),
Jevanseva Pledge,
II Floor, S.V.Road,
Santgurus (W),
Mumbai - 400 054.
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C.M.A(MD)No.704 of 2020
J.NISHA BANU,J
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C.M.A(MD) No.704 of 2020
04.01.2021
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