The New India Assurance Company ... vs Smt.Girija Kumari
2021 Latest Caselaw 5921 Mad

                                                C.M.A(MD)Nos.163 and 1692 of 2010 and 404 of 2013

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED 05.03.2021

                                                      CORAM

                          THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM

                              C.M.A(MD)Nos.163 and 1692 of 2010 and 404 of 2013
                                                   and
                                       M.P(MD)Nos.1 and 1 of 2010

                      C.M.A(MD)No.163 of 2010

                      The New India Assurance Company Ltd.,
                      Nagercoil Branch.
                                                                                     .. Appellant

                                                     vs.

                      1.Smt.Girija Kumari
                      2.Minor P.G.Pradheesh
                      (Minor respondent is declared as major

vide order dated 05.03.2021)

3.Ratheesh

4.Venkatesan

5.Bajaj allianz Insurance Co-Ltd., M.G.Road, Pazhavangadi, Thiruvnanthapuram, Kerala State.

...Respondents

http://www.judis.nic.in C.M.A(MD)Nos.163 and 1692 of 2010 and 404 of 2013

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988 against the award dated 07.10.2009 and made in MCOP No.142 of 2006 on the file of the Motor Accident Claims Tribunal, Sub Court, Kuzhithurai.

For Appellant : Mr.K.Murugesan For Respondents : Mr.T.Arul (for R1 & R2) Mr.S.Srinivasa Raghavan (for R5)

C.M.A(MD)No.1692 of 2010

Bajaj Allianz General Insurance Co., Ltd., M.G.Road, Pazhavan Gadi, Thiruvananthapuram, Kerala State.

.. Appellant

vs.

1.Smt.Girija Kumari

2.Minor P.G.Pradheesh

3.Ratheesh

4.Venkatesan

5.New India Assurance Co., Ltd., Nagercoil Branch.

...Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988 to set aside the fair and decretal order dated 07.10.2009 and made in MCOP No.142 of 2006 on the file of the Motor Accident Claims Tribunal, Sub Court, Kuzhithurai.

http://www.judis.nic.in C.M.A(MD)Nos.163 and 1692 of 2010 and 404 of 2013

For Appellant : Mr.S.Srinivasa Raghavan

For Respondents : Mr.T.Arul (for R1 and R2) Mr.K.Murugesan (for R5)

C.M.A(MD)No.404 of 2013

1.Smt.Grija Kumari

2.P.G.Pradheesh .. Appellant

vs.

1.Ratheesh

2.Venkatesan

3.New India Assurance Co., Ltd., Nagercoil Branch.

4.Bajaj Allianz Insurance Co. Ltd., M.G.Road, Pazhavangadi, Thiruvananthapuram, Kerala State.

...Respondents

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988 to set aside the award dated 07.10.2009 made in MCOP No.142 of 2006 on the file of the Motor Accident Claims Tribunal, Sub Judge, Kuzhithurai.

http://www.judis.nic.in C.M.A(MD)Nos.163 and 1692 of 2010 and 404 of 2013

For Appellant : Mr.T.Arul For Respondents : Mr.K.Murugesan (for R3) Mr.S.Srinivasa Raghavan (for R4)

COMMON JUDGMENT

These appeals arise out of the award passed by the Motor Accident

Claim Tribunal, Kuzhithurai in MCOP No.142 of 2006 dated 07.10.2009.

2.The claim petition was filed by the wife and minor son of the

deceased Padmanabhan Nair, who died in a motor vehicle accident on

02.05.2006. It is their case that the deceased Padmanabhan Nair was a

Ex-service Man and he was returning from Karingal in a two wheeler

Bajaj CT 100 bearing registration No.TNV 1114. At that time, the first

respondent, the rider of the Bajaj Pulsar vehicle bearing registration

No.TN-67-E-4867, in which, the second respondent was a pillion rider,

came in carelessness manner and dashed against the Bajaj CT 100. In the

accident, the said Padmanabhan Nair sustained injuries and he was

immediately taken to Colochel Hospital, where he died. The Insurer of

http://www.judis.nic.in C.M.A(MD)Nos.163 and 1692 of 2010 and 404 of 2013

the Bajaj Pulsar was the third respondent and the fourth respondent was

insurer of Bajaj CT 100.

3.The respondents 1 to 3 in the claim petition contended that at the

time of accident, the deceased consumed liquor and he was driving

motorcycle in a rash and negligent manner. The accident occurred only

because of the deceased and he was not having valid driving license. So,

no liability can be fastened on them. The insurer of Bajaj CT 100, in

which, the deceased travelled, has filed a counter in support of the case

of the claimant.

4.During trial, in order to prove the case of the claimants, two

witnesses were examined and 16 documents were marked. The Insurance

Company examined R.W.1 and produced 3 documents.

5.P.W.2 was examined as eyewitness to the incident. According to

him, the accident happened due to the negligence of the driver of the

Bajaj Pulsar. However, he did not lodge complaint after the accident and

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a case was registered against the deceased. Ex.P.2-Rough Sketch

prepared by the police shows that the accident happened on the right side

of the road. The defence taken by the insurance company that the

deceased was drunk at the time of accident was disbelieved since the

liquor found in the stomach of the deceased was not proved as Alcohol.

6.On appreciation of evidence, the Trial Court came to the

conclusion that if the rider of the offending vehicle was careful, this

accident could have been averted and held both the riders are equally

responsible for the accident. The Tribunal found that the claimants are

entitled to Rs.3,95,000/- and directed both the insurance companies to

pay the amount to the claimants.

7.Challenging the said finding, the insurance company to pay

compensation, the insurance companies have filed CMA(MD)Nos.163 of

2010 and 1692 of 2010 and the claimants have come up with

CMA(MD)No.404 of 2013 for enhancement compensation.

http://www.judis.nic.in C.M.A(MD)Nos.163 and 1692 of 2010 and 404 of 2013

8.Mr.K.Murugesan, learned counsel appearing for the appellant in

CMA(MD)No.163 of 2010 would urge that the Tribunal erred in fixing

50% of negligence on the riders of both two-wheelers. According to the

learned counsel, a criminal case was registered against the deceased and

it was closed as 'mistake of fact'. Ex.P.3-postmortem certificate shows

that there is block liquor at about 100 ml in the stomach of the deceased

even though the factors having been taken note by the Tribunal, but it

erred in fixing the liability on the insurance company.

9.Mr.S.Srinivasa Raghavan, learned counsel for the appellant in

CMA(MD)No.1692 of 2010 would contend that the owner of the insured

vehicle died in the accident and hence, the claimants are not entitled to

seek compensation from the insured. It is further submitted that the

deceased is not third party and hence, the insurance company cannot be

made liable to pay compensation.

10.The learned counsel for the claimants submitted that the award

amount is very meager and there was no proper calculation of the income

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of the deceased. The monthly income fixed by the Tribunal at Rs.3,000/-

is meager.

11.Heard the learned counsel for the parties and perused the

materials available on record.

12.In the matter on hand, it is not in dispute that the claimants are

the legal heirs of the deceased Padmanabhan Nair. It is also not disputed

that the deceased was an Ex-service man and he died at the age of 40

years. P.W.2 deposes that the opposite vehicle was driven in a rash and

negligent manner and it hit against the two wheeler in which, the

deceased was riding. In the cross examination, P.W.2 admitted that the

accident occurred on the wrong side of the road. There is no explanation

for the deceased to go to the wrong side of the road. As rightly held by

the Tribunal, the Insurance Company failed to prove that the deceased

was drunk at the time of accident. However, when it found that the

deceased was on the wrong side and the rider of the opposite vehicle was

also carelessness and negligent, the Tribunal, in my view, has rightly

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fixed negligence equally on the riders of both the vehicles.

13.Insofar as the quantum is concerned, the claimants stated that

after retirement from Army, the deceased was earning Rs.25,000/- per

month, but no material was produced to substantiate their case. So, the

Tribunal has fixed notional income at Rs.3,000/- per month, after

deducting 1/3rd for his personal and living expenses, contribution was

taken as Rs.24,000/-. As stated supra, the deceased died at the age of 40

years and hence, the claimants would be entitled for future prospects

also. So, in my view, it would be appropriate to fix income at Rs.6000/-

per month, from which, 1/3 is to be deducted for his personal expenses

and contribution to the family comes to Rs.4000/- and by applying

multiplier '15' the loss of income is arrived at Rs.7,20,000/- (4000 x 12 x

15). As per the decision of National Insurance Co., Ltd., vs. Pranay

Sethi reported in (2017)16 SCC 680, the claimants are entitled for Rs.

70,000/- for conventional damages. Thus, the claimants would be

entitled to Rs.7,90,000/-. Though it is contended by the learned counsel

for the appellant in CMA(MD)No.1692 of 2010 that the insurance

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company is not liable to pay compensation, but during the cross

examination, he has fairly admitted that they are liable to pay Rs.

1,00,000/- as personal coverage. Therefore, the appellant in

CMA(MD)No.1692 of 2010/Bajaj Allianz General Insurance Co., Ltd., is

directed to pay Rs.1,00,000/- and the appellant in CMA(MD)No.163 of

2010/New India Assurance Company Ltd, is directed to pay Rs.

3,95,000/- being their fifty percent share.

14.Further, it is seen from the records that on the date of filing of

the claim petition on 28.11.2006, the second claimant was 10 years old

and now he has attained the age of majority. Hence, the second claimant

is declared as major.

15.In view of the above, both the appellants/Insurance companies

are directed to deposit their share with accrued interest and costs, less the

amount already deposited, if any, within a period of eight weeks from the

date of receipt of a copy of this order. On such deposit, the claimants are

permitted to withdraw the award amount as apportioned by the Tribunal,

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less the amount already withdrawn, if any, together with proportionate

interest and costs.

16.In the result, CMA(MD)No.404 of 2013 is allowed,

CMA(MD)No.1692 of 2010 is partly allowed and CMA(MD)No.163 of

2010 is dismissed. No costs. Consequently, connected miscellaneous

petitions are closed.

05.03.2021

Index:Yes/No Internet:Yes/No skn To

1.The Motor Accident Claims Tribunal, Sub Court, Kuzhithurai.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

http://www.judis.nic.in C.M.A(MD)Nos.163 and 1692 of 2010 and 404 of 2013

K.KALYANASUNDARAM.,J

skn

COMMON JUDGMENT MADE IN

C.M.A(MD)Nos.163 and 1692 of 2010 and 404 of 2013 and M.P(MD)Nos.1 and 1 of 2010

05.03.2021

http://www.judis.nic.in