Madras High Court
New India Assurance Co. Ltd vs K.Indhuja on 10 March, 2021
C.M.A.No.335 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. No.335 of 2021
and C.M.P.No.2281 of 2021
New India Assurance Co. Ltd.,
Sethu Krishna Trade Center,
Trichy Main Road,
Gugai, Salem 6. .. Appellant
Vs.
1.K.Indhuja
2.Muthukili
3.Pandi
4.C.Ramesh
5.M/s.United India Insurance Co. Ltd.,
104-A Peramanur Main Road,
Peramanur, Salem 7. .. Respondents
(3rd respondent impleaded as per order
in I.A.No.565/2018 dated 19.04.2018 &
amendment carried out as per order in
I.A.No.1875/2018 dated 19.07.2018)
(4th respondent herein remained exparte
before the Tribunal, notice may be dispensed with)
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C.M.A.No.335 of 2021
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 12.04.2019, made
in M.C.O.P. No.2380 of 2016, on the file of the II Additional District Court,
Special District Court, (Motor Accident Claims Tribunal), Salem.
For Appellant : Mr.J.Chandran
For Respondents : No appearance (For R1 to R3)
M/s.I.Malar (For R5)
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”)
This Civil Miscellaneous Appeal has been filed by the appellant-
Insurance Company to set aside the judgment and decree dated 12.04.2019,
made in M.C.O.P. No.2380 of 2016, on the file of the II Additional District
Court, Special District Court, (Motor Accident Claims Tribunal), Salem.
2.The appellant is the 2nd respondent in M.C.O.P. No.2380 of 2016, on
the file of the II Additional District Court, Special District Court, (Motor
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C.M.A.No.335 of 2021
Accident Claims Tribunal), Salem. The respondents 1 to 3/claimants filed the
said claim petition, claiming a sum of Rs.36,00,000/- as compensation for the
death of one Kannan who died in the accident that took place on 08.05.2016.
3.According to the respondents 1 to 3, on the date of accident, when
the deceased was driving an Omni Van bearing Registration No.TN-20-W-
6982 on Anthiyur to Ammapet Main road, near Annamaduvu Asari Pattarai,
the driver of a Lorry bearing Registration No.TN-52-F-0838 belonging to the
4th respondent coming from opposite direction, drove the same in a rash and
negligent manner at high speed, lost control, hit against the Omni Van and
caused the accident. In the accident, the deceased Kannan sustained fatal
injuries and died on 11.05.2016. The accident occurred only due to rash and
negligent driving by the driver of the Lorry belonging to the 4th respondent.
Hence, the respondents 1 to 3 filed the claim petition claiming compensation
against the 4th respondent and appellant as owner and insurer of the Lorry
respectively and 5th respondent as insurer of the Omni Van.
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C.M.A.No.335 of 2021
4.The 4th respondent, owner of the Omni Van, remained exparte before
the Tribunal.
5.The appellant, insurer of the Lorry, filed counter statement and
denied all the averments made by the respondents 1 to 3 in the claim petition.
According to the appellant, on the date of accident, when the driver of the
Lorry belonging to the 4th respondent drove the same slowly and diligently on
Anthiyur to Ammapet main road, near Annamaduvu Asari Pattarai, the
deceased Kannan who was driving the Omni Van from opposite direction in a
rash and negligent manner, while overtaking a Car, without noticing the Lorry
coming on the opposite direction, hit against the same and caused the
accident. The accident occurred only due to rash and negligent driving by the
deceased Kannan/driver of the Omni Van. FIR was registered only against the
deceased Kannan. Thereafter, investigation was conducted and final report
was filed before the Judicial Magistrate Court, Bhavani, as mistake of fact in
R.C.S.14/2016 and thereafter, further action was dropped. Hence, the
appellant is not liable to pay compensation to the respondents 1 to 3. In any
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C.M.A.No.335 of 2021
event, the respondents 1 to 3 have to prove the age, avocation and income of
the deceased to claim compensation and prayed for dismissal of the claim
petition.
6.The 5th respondent, insurer of the Omni Van, filed counter statement
and denied all the averments made by the respondents 1 to 3 in the claim
petition. According to the 5th respondent, the accident occurred only due to
rash and negligent driving by driver of the Lorry belonging to the 4th
respondent and hence, the 4th respondent and appellant are only liable to pay
compensation to the respondents 1 to 3. The deceased Kannan is not a third
party as far as the policy of insurance issued by the 5th respondent and
therefore, 5th respondent-Insurance Company is not liable to pay any
compensation to the respondents 1 to 3 and prayed for dismissal of the claim
petition.
7.Before the Tribunal, the 1st respondent examined herself as P.W.1,
examined eye-witness, Shanmugam as P.W.2 and marked 13 documents as
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C.M.A.No.335 of 2021
Exs.P1 to P13. The appellant and 5th respondent examined the driver of the
Lorry as D.W.1, Inspector of Police, Anthiyur Police Station as D.W.2, one
Karthikeyan as D.W.3 and marked 7 documents as Exs.X1 to X7.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that accident occurred due to negligence of both the deceased,
driver of the Omni Van as well as the driver of the Lorry and apportioned
10:90 negligence on both of them respectively. The Tribunal awarded a sum
of Rs.18,56,800/- and directed the appellant-Insurance Company as well as
the 4th respondent to jointly and severally pay a sum of Rs.16,71,120/- being
90% of the award amount, as compensation to the respondents 1 to 3. The
Tribunal dismissed the claim petition as against the 5th respondent.
9.To set aside the award of the Tribunal dated 12.04.2019, made in
M.C.O.P. No.2380 of 2016, the appellant - Insurance Company has come out
with the present appeal.
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C.M.A.No.335 of 2021
10.The learned counsel appearing for the appellant-Insurance Company
contended that the deceased Kannan drove the Omni Van in a rash and
negligent manner and while overtaking a Car going ahead, dashed on the
oncoming Lorry belonging to the 4th respondent and caused the accident. FIR
was registered only against the deceased Kannan based on the complaint
given by one Ranganathan, occupant of the Omni Van, who traveled along
with the deceased at the time of accident. The respondents 1 to 3 did not
examine the said Ranganathan who is an eye witness. The Tribunal ought to
have taken adverse inference against the respondents 1 to 3. The appellant
examined driver of the Lorry as D.W.1 to prove that the accident occurred
only due to rash and negligent driving by driver of the Omni Van. The
Tribunal considering the evidence of D.W.1, D.W.2 – Inspector of Police,
Anthiyur Police Station, FIR, final report and rough sketch, observation
mahazar, Motor Vehicle Inspector's report of both the vehicles, ought to have
fixed entire negligence on the part of the deceased/driver of the Omni Van.
The Tribunal failed to consider that the respondents 1 to 3 did not examine
the alleged eye witness or the said Ranganathan, the alleged eye witness did
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C.M.A.No.335 of 2021
not file any complaint before the Police or concerned Judicial Magistrate. The
Tribunal ought to have held that the driver of the Lorry is not responsible for
the accident. The accident occurred due to head on collision of two vehicles.
The Tribunal ought to have fixed the entire negligence on the deceased,
driver of the Omni Van. The Tribunal erred in fixing the monthly income of
the deceased as Rs.9,000/-, adding 40% towards future prospects, deducting
1/3rd towards personal expenses and applying the multiplier '16'. The total
compensation granted by the Tribunal to the respondents 1 to 3 is excessive
and prayed for setting aside the award of the Tribunal.
11.The respondents 1 to 3 filed caveat petition and represented through
counsel. On 17.02.2021 and 22.02.2021, there was no representation for
them. Today also there is no representation for them.
12.Heard the learned counsel appearing for the appellant-Insurance
Company and perused the materials available on record.
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C.M.A.No.335 of 2021
13.It is the case of the respondents 1 to 3 that the accident occurred
only due to rash and negligent driving by driver of the Lorry belonging to the
4th respondent and insured with the appellant. To substantiate their case, they
examined the 1st respondent as P.W.1, one Shanmugam was examined as
P.W.2 and marked FIR which was registered against the deceased. On the
other hand, it is the case of the appellant that the accident occurred only due
to rash and negligent driving by the deceased Kannan. They examined the
driver of the Lorry as D.W.1, Inspector of Police as D.W.2 and one
Karthikeyan as D.W.3 and marked which FIR was registered only against the
deceased Kannan. From the materials on record, it is seen that the FIR was
registered against the deceased, based on the complaint given by one
Ranganathan who travelled along with the deceased in the Omni Van at the
time of accident. The respondents 1 to 3 have not explained the reason for not
examining the said Ranganathan who is the best person to depose about the
manner of the accident. The respondents 1 to 3 have not given any objection
for the FIR being registered against the deceased and also not given any
complaint against the driver of the Lorry. It is pertinent to note that the FIR
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C.M.A.No.335 of 2021
was registered on 10.05.2016, final report was filed only on 16.11.2017, after
1½ years of the accident. During this period, the respondents 1 to 3 have not
taken any steps to lodge complaint against the driver of the Lorry or file
objection. The appellant-Insurance Company has examined the driver of the
Lorry as D.W.1 and also Investigating Officer as D.W.2. D.W.1 deposed that
the accident occurred only due to the negligence of the deceased. D.W.2,
alleged eye witness has not given any complaint against the driver of the
Lorry stating the manner of accident.
14.It is well settled that the contents of FIR, final report and
proceedings in the Criminal Court are not the sole basis for fixing negligence.
At the same time, all these documents can be viewed along with oral evidence
let in on oath and other documents placed before the Tribunal. In the present
case, the appellant has taken a specific stand in the counter statement that the
accident occurred only due to rash and negligent driving by the deceased who
dashed on the Lorry while overtaking a Car. The appellant examined the
driver of the Lorry. The accident has occurred in the middle of the road
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C.M.A.No.335 of 2021
involving two vehicles. Considering all these materials in its entirety, this
Court is of the view that both the driver of the Lorry as well as the
deceased/driver of the Omni Van equally contributed to the accident and
negligence is fixed equally on both the deceased/driver of the Omni Van as
well as the driver of the Lorry in the ratio 50:50. The respondents 1 to 3 are
entitled to only 50% of the compensation awarded by the Tribunal.
15.As far as the quantum of compensation is concerned, the
respondents 1 to 3 contended that the deceased was working as a Vegetable
Merchant and was earning a sum of Rs.20,000/- per month. They did not file
any document to prove the same. In the absence of any materials, the Tribunal
fixed the monthly income of the deceased as Rs.9,000/-. The accident is of
the year 2014. Considering the year of accident and nature of work, the
monthly income fixed by the Tribunal is just and reasonable. The total
compensation awarded by the Tribunal is not excessive, warranting
interference by this Court.
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C.M.A.No.335 of 2021
16.In the result, this Civil Miscellaneous Appeal is partly allowed and
the amount awarded by the Tribunal at Rs.18,56,800/- together with interest
at the rate of 7.5% per annum from the date of petition till the date of deposit
is confirmed. The appellant as well as the 4 th respondent are jointly and
severally directed to deposit a sum of Rs.9,28,400/-, being 50% of the award
amount, along with interest and costs, 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.2380
of 2016. On such deposit, the respondents 1 to 3 are permitted to withdraw
their share of the award amount, now determined by this Court, 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. The appellant-Insurance Company
as well as the 4th respondent are permitted to withdraw the excess amount,
lying in the deposit to the credit of M.C.O.P. No.2380 of 2016, if any already
deposited by them. It is made clear that if the respondents 1 to 3 have already
withdrawn the award amount, the appellant-Insurance Company as well as
the 4th respondent are not entitled to recover the same from the respondents 1
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C.M.A.No.335 of 2021
to 3. Consequently, connected Miscellaneous Petition is closed. This appeal is
dismissed as against the 5th respondent. No costs.
10.03.2021
Index : Yes/No
Speaking Order : Yes/No
gsa
To
1.The II Additional District Judge,
Special District Court,
(Motor Accident Claims Tribunal),
Salem.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.No.335 of 2021
V.M.VELUMANI, J.,
gsa
C.M.A. No.335 of 2021
10.03.2021
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