Madras High Court
United India Insurance Co.Ltd vs Jayaseela on 9 March, 2021
C.M.A.No.2169 of 2017
and C.M.P.Nos.11476/2017 & 13884/2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.2169 of 2017
and
C.M.P.Nos.11476/2017 & 13884/2018
United India Insurance Co.Ltd.,
3, Giriam Buildings Main Road,
Gobichettipalayam,
Erode District. ...Appellant
Vs
1.Jayaseela
2.Minor Sivakumar
S/o.(Late) Venkate Gowda
3.Minor Vinothkumar
S/o.(Late) Venkate Gowda
4.D.Kandhasamy
5.M/s.Senthil Ram Transport
Rep.by its Managing Partner,
D.No.18B, Mettupalayam Road,
Sathyamangalam (Po) & (Tk),
Erode District.
1/8
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2169 of 2017
and C.M.P.Nos.11476/2017 & 13884/2018
6.National Insurance Co.Ltd.,
371/A, II Floor,
Prestige Shopping Arcade
Ramaswamy Circle,
Mysore-570 024. ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act against the Judgment and Decree made in M.C.O.P.No.392 of 2012
on 09.08.2016 on the file of the Motor Accident Claims Tribunal (Subordinate
Judge) Court at Sathyamangalam, Erode.
For Appellant : Mr.J.Chandran
For Respondents : Mr.Suresh for
Mr.K.Moorthy for R1 to R3
Not ready in notice for R4
No appearance for R5 & R6
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for
the respondents 1 to 3.
2. It is a case of fatal accident, where the two vehicles Mahindra pick up
van and the passenger bus dashed against each other, in which, the driver of the
pick up van died. The legal heirs of the deceased claiming compensation of
Rs.20,00,000/- against the owner of the passenger bus and its insurer. The
Tribunal has awarded a sum of Rs.12,85,800/- payable by the insurer of the bus.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2169 of 2017
and C.M.P.Nos.11476/2017 & 13884/2018
3. The reasons stated by the Tribunal for fixing the liability on the
appellant insurer is assailed in this appeal as perverse and non application of mind.
4. On hearing the learned counsels and perusing the records, this Court
substantially concur with the submissions made by the learned counsel for the
appellant. However, taking note of the facts that the respondents before this Court
are the legal heirs of the deceased driver/owner of the pick up van and for the
erroneous and imperfect claim petition drafted by their counsel and improper
appreciation of evidence by the Tribunal, the victim of the accident should not be
taken for ride. Hence, this Court instead of remanding back to the Tribunal for
fresh appreciation of evidence take up the job of proper appreciation of law and
evidence and passed the following judgment:
Facts:
5. On 21.05.2006, at about 10.00 a.m., near Shanbaga Pudur Bridge,
Sathyamangalam Taluk, a Mahindra Max pick up van loaded with brinjal driven
by its owner Venkate Gowda towards Coimbatore from Mysore dashed against the
passenger bus bearing registration No.TN 36 Z 9355. In the said accident the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2169 of 2017
and C.M.P.Nos.11476/2017 & 13884/2018
owner-cum-driver of the Mahindra Max pick up van Venkate Gowda died on the
spot and two other occupants badly incurred. First Information Report was
registered against Venkate Gowda-the deceased driver of the Mahindra Max pick
up van. Based on the information given by the driver of the bus, both the vehicles
were subjected to Motor Vehicle Inspector's inspection who has noted extensive
damage on the front side of both the vehicles. The complaint given by the driver of
the bus Kandhasamy, who was arrayed as 1st respondent was closed as abated in
view of the demise of the offender Venkate Gowda.
6. However in the claim petition, the facts were so presented as if the
FIR was registered against the bus driver under in Cr.No.277 of 2006, which is
totally contrary to the documentary evidence namely the FIR Ex.P.1. The Tribunal
has also not properly appreciated the evidence and has wrongly concluded that the
final report holds the negligence on the part of the 1st respondent. This observation
of the Tribunal would go to show that the learned Judge who delivered the said
judgment has not properly perused the records.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2169 of 2017
and C.M.P.Nos.11476/2017 & 13884/2018
7. Had it gone through the records scrupulously, the Tribunal would
not held the appellant/Insurance Company solely responsible to pay the
compensation and would have averted passing the erroneous award fixing the
liability in toto on the Insurance Company. Hence, this Court under Section 173
of the Motor Vehicles Act, interfere and modify the Tribunal award.
8. On going through the records, this Court finds that though the FIR
is registered against the deceased van driver Venkate Gowda, the motor vehicle
report indicates that it is head on collusion. Therefore, the negligence between
both the drivers is apportioned equally and respective owners are liable to share
the responsibility. Since Venkate Gowda himself is the owner of the pick up van
which is one of the offending vehicle and also the tort-feasor, his legal heirs are
not entitled for claiming compensation more than 50% from the insurer of the
other vehicle namely the bus bearing registration No. TN 36 Z 9355. Regarding
the quantum of compensation, this Court finds that though the claimants are made
a high claim of Rs.75,000/- per month as the income of the deceased, there is no
evidence. The Tribunal has notionally fixed the monthly income of the victim as
Rs.6,000/- p.m., and added 30% towards the future prospects. At the time of
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C.M.A.No.2169 of 2017
and C.M.P.Nos.11476/2017 & 13884/2018
accident, the deceased was around 31 years. For loss of consortium and the loss of
Love and Affection, the Tribunal has awarded Rs.2,00,000/- in total and
Rs.25,000/- towards Funeral Expenses. This Court finds that in the absence of
proper evidence regarding income, the quantum of compensation is modified as
below:-
Loss of dependency Rs.7,95,600/-
(Rs.7800 x 1/2x 12 x 17)
Loss of Consortium (1st Rs.40,000/-
claimant Wife)
Loss of Love and Affection Rs.40,000/-
(Claimants 2 and 3
Rs.20,000/- each)
Funeral Expenses Rs.15,000/-
Total Rs.8,90,600/-
9. In the result, the compensation of Rs.12,85,800/- awarded by the
Tribunal to the claimants is modified to Rs.8,90,600/-. Out of which, the appellant
who is the 3rd respondent before the Tribunal shall be responsible to pay 50% of
the total compensation i.e., Rs.4,45,300/- with interest at the rate of 7.5% p.a.,
from the date of filing the petition till the date of realisation.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2169 of 2017
and C.M.P.Nos.11476/2017 & 13884/2018
10. From the records, this Court find that in compliance to the
conditional order, the Insurance Company has already deposited Rs.2,00,000/-.
Therefore, the balance award amount with interest shall be paid within a period of
twelve weeks from the date of receipt of copy of the judgment. On such deposit,
the first claimant shall be entitled to withdraw 50% of the award amount with
accrued interest and from the balance 50% of the award amount with accrued
interest shall be equally shared by the 2nd and 3rd claimants (i.e.,25% each). The
claimants shall be permitted to withdraw the same on appropriate petition.
11. Accordingly, this Civil Miscellaneous Appeal is partly allowed.
Consequently, connected civil miscellaneous petitions are also closed. No costs.
09.03.2021
Index : Yes/No
Internet : Yes/No
rpl
To
The Motor Accident Claims Tribunal,
(Subordinate Judge) Court at Sathyamangalam, Erode.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2169 of 2017
and C.M.P.Nos.11476/2017 & 13884/2018
DR.G.JAYACHANDRAN,J.
rpl
C.M.A.No.2169 of 2017
and
C.M.P.Nos.11476/2017 & 13884/2018
09.03.2021
https://www.mhc.tn.gov.in/judis/
