Madras High Court
The Divisional Manager vs R.Rajeswari on 2 March, 2021
C.M.A(MD)No.421 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.03.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A(MD)No.421 of 2018
and
C.M.P(MD)No.5287 of 2018
The Divisional Manager,
National Insurance Company Limited,
Zonal Office,
3-B, North Veli Street,
Madurai – 1. ... Appellant/2nd Respondent
Vs.
P.Ramasamy (died)
1.R.Rajeswari
2.Manimegalai
3.Kavitha
4.Amudha
5.Usha ... Respondents 1 to 5/
Petitioners 2 to 6
6.Jebagnanasingh ... 6th Respondent/1st Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decree dated
26.04.2017 made in M.C.O.P.No.1156 of 2012 on the file of the Motor
Accident Claims Tribunal (Chief Judicial Magistrate), Madurai.
For Appellant : Mr.D.Sivaraman
For RR 1 to 5 : Mr.P.Muthu Ravi Veeran
For R – 6 : No appearance
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C.M.A(MD)No.421 of 2018
JUDGMENT
(Judgment of the Court was delivered by
PUSHPA SATHYANARAYANA,J.)
Challenging the award, dated 26.04.2017 made in
M.C.O.P.No.1156 of 2012, on the file of the Motor Accident Claims
Tribunal (Chief Judicial Magistrate), Madurai, the present Civil
Miscellaneous Appeal is filed by the National Insurance Company on
the ground of both negligence as well as quantum.
2.In the said M.C.O.P, originally, the first claimant/P.Ramasamy,
had filed the claim petition claiming compensation for the injuries
sustained by him. Pending the claim petition, the first
claimant/P.Ramasamy died. Hence, the respondents 1 to
5/respondents 2 to 6, who are the wife and daughters, were
impleaded as legal heirs of the deceased P.Ramasamy.
3.The brief facts relevant for the consideration of the above case
are that on 26.08.2011, when the deceased, who was working as a
sweeper, after completion of cleaning work on the Southern side, had
tried to cross the road to do the cleaning work on the Southern side,
at that time, a two-wheeler (Yamaha crux) bearing Registration
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C.M.A(MD)No.421 of 2018
No.TN-59-AB-6508, which was driven by its rider from East to West,
hit against the deceased. Due to the heavy impact, the deceased was
thrown away and fell down and thereby sustained grievous head
injury. Immediately, the deceased was admitted in Government
Hospital, Madurai and took treatment from the date of accident ie.,
from 29.08.2011 to 18.10.2011 as in-patient and thereafter, he was
admitted in Shenbagam Hospital and he was treated under the
Intensive Care Unit for a period of one month. Hence, the first
claimant has filed the claim petition claiming a compensation of
Rs.20,00,000/-.
4.Resisting the claim petition, the appellant-Insurance Company
has filed a counter affidavit contending that the deceased suddenly
crossed the road, without noticing the on coming vehicle in the road
and there was an element of contributory negligence on the part of
the deceased, who had been negligent enough in causing the accident.
It is further contended that the claimants have to prove the cause for
the death of the deceased with post-mortem certificate and relevant
records and that the deceased had not suffered injuries to any of his
vital organs and the nature and extent of injuries suffered by him
could not have been the proximate cause for his death, which had
occurred two years after the alleged accident ie., on 26.08.2011.
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C.M.A(MD)No.421 of 2018
5.Before the Tribunal, on the side of the claimants, P.W.1 to
P.W.5 were examined and Exs.P1 to Ex.P23 were marked. On the side
of the appellant, no witness was examined and no document was
marked.
6.The Tribunal, after considering the oral and documentary
evidence, held that the accident had occurred only due to the rash and
negligent driving of the driver of the sixth respondent/first respondent
and that the deceased had sustained injuries and due to the impact,
he died. The Tribunal further held that the appellant/Insurance
Company is liable to pay compensation to the claimants and had
awarded a total compensation of Rs.18,67,000/- under various heads.
7.The learned counsel appearing for the appellant/Insurance
Company would submit that the deceased ought to have crossed the
road, which is a one way, with much more diligence, as there was a
heavy traffic on the road. However, the deceased was hit by a
speeding two wheeler, which was driven by its driver in a rash and
negligent manner and the said two wheeler was insured with the
appellant/Insurance Company.
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C.M.A(MD)No.421 of 2018
8.The learned counsel appearing for the respondents 1 to
5/claimants would submit that the Tribunal had correctly awarded the
compensation under various heads and the same need not be
interfered with.
9.Heard the learned counsel appearing on either side and
perused the materials available on record.
10.On a perusal of the materials available on record, it is seen
that the accident had occurred on a road, which was running in
East-West direction, but, the deceased was crossing from South to
North. It is a well known factor that it is a broad road and the traffic is
heavy. Admittedly, the deceased was a sanitary worker, who was
engaged in cleaning the said road. He had cleaned on one side and
was crossing to clean the other side of the road. The two wheeler
which dashed against the deceased had been coming in such a speed,
even on one way, and hit the deceased causing him grievous injuries
resulting in his death. A co-worker also has been examined as P.W.2,
who was an eye-witness to the occurrence and he has also deposed
that it was due to the rash and negligent riding of the two wheeler, the
accident had occurred.
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C.M.A(MD)No.421 of 2018
11.The Tribunal also had held that the accident had occurred due
to the rash and negligent driving of the two wheeler insured with the
appellant and not because of the negligence on the part of the
deceased. In view of the categorical finding rendered by the Tribunal,
we see no reason to interfere on the factual aspect that the negligence
was on the part of the deceased and therefore, the compensation has
to be reduced to certain percentage. Though the negligence is not
proved on the side of the deceased, the question of quantum,
however, has to be considered.
12.With regard to the quantum of compensation, the Tribunal,
based on Ex.P.18-salary certificate, had rightly fixed the monthly
income of the deceased at Rs.15,000/- and after deducting 1/3rd
amount, fixed the monthly income of the deceased at Rs.10,000/-
and taking into consideration the age of the deceased as 52, applied
multiplier '11' and determined the loss of income at Rs.13,20,000/-
(Rs.10,000 X 11 X 12), which, in the opinion of this Court, warrants
no interference and accordingly, the same is confirmed.
13.Similarly, the amounts awarded under the other heads, viz.,
a sum of Rs.4,11,300/- towards medical bills, as per Exs.P8 to P.10;
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C.M.A(MD)No.421 of 2018
a sum of Rs.50,000/- towards Physiotherapy Bill, as per Ex.P.11; a
sum of Rs.20,000/- towards loss of consortium to the second
claimant; a sum of Rs.40,000/- towards loss of love and affection,
a sum of Rs.20,000/- towards funeral expenses; a sum of
Rs.5,000/- towards transportation charges and a sum of Rs.700/-
towards damages to clothes and articles, seems to be fair and
reasonable and they are also confirmed.
14.The rate of interest awarded by the Tribunal at 7.5% per
annum remains unaltered.
15.In the result,
(i) This Civil Miscellaneous Appeal is dismissed,
confirming the award, dated 26.04.2017 made in
M.C.O.P.No.1156 of 2012 by the Motor Accident Claims
Tribunal (Chief Judicial Magistrate), Madurai.
(ii) The learned counsel appearing for the
appellant/Insurance Company is directed to deposit the
award amount together with accrued interest and costs to
the credit of claim petition, less the amount already
deposited, if any, within a period of six weeks from the
date of receipt of a copy of this order.
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C.M.A(MD)No.421 of 2018
(iii) On such deposit being made, the respondents 1
to 5/claimants 2 to 6 are entitled to withdraw the above
compensation as per the ratio of apportionment made by
the Tribunal with proportionate accrued interest and
costs.
No costs. Consequently, connected Miscellaneous Petition is closed.
[P.S.N.,J] [S.K.,J.]
02.03.2021
Index :Yes/No
Internet :Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for official
purposes, but, ensuring that
the copy of the order that is
presented is the correct copy,
shall be the responsibility of the
advocate / litigant concerned.
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C.M.A(MD)No.421 of 2018
To
1.The Motor Accident Claims Tribunal/
Chief Judicial Magistrate,
Madurai.
2.The V.R Section (Records),
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.421 of 2018
PUSHPA SATHYANARAYANA,J.
and
S.KANNAMMAL,J.
ps
C.M.A(MD)No.421 of 2018
02.03.2021
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