Madras High Court
The Divisional Manager vs Shanthi on 23 November, 2021
CMA(MD)No.193 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.11.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.ANANTHI
CMA(MD)No.193 of 2020 &
CMP(MD)Nos.3225 & 4454 of 2020
The Divisional Manager,
Oriental Insurance Company Limited,
Divisional Office,
6-A, West Veli Street,
Bangur Dharmasala Building,
Madurai-1. ... Appellant
vs.
1.Shanthi
2.Minor Monisha
3.Sethu
4.Uthiravalli
5.Minor Sudesan
6.Duraisamy ... Respondents
(Minor respondents 2 and 5 represented by their mother
and guardian, Shanthi/1st respondent)
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree dated
18.02.2019 in MCOP.No.107 of 2017 on the file of the Motor Accident
Claims Tribunal, Additional District Court, Paramakudi
For Appellant :Mr.C.Karthik
For Respondents :Mr.D.Senthil for R1 to R5
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CMA(MD)No.193 of 2020
JUDGMENT
The appellant filed this appeal against the Judgment and Decree
dated 18.02.2019 in MCOP.No.107 of 2017 on the file of the Motor
Accident Claims Tribunal, Additional District Court, Paramakudi.
2. On 06.07.2017, the deceased, namely, Suresh, was travelling as
a pillion in a motorcycle bearing Registration No.TN 65 Y 2836 and the
motorcycle was ridden by his friend, deceased, Sasikumar. At that time,
a bus bearing Registration No.TN 63 AV 0444, owned by the sixth
respondent and insured with the appellant came in a rash and negligent
manner and dashed against the two wheeler, as a result of which, both
Suresh and Sasikumar died on the spot.
3. The first respondent is the wife of the deceased Suresh, the
second and fifth respondents are children of the deceased Suresh and the
third and fourth respondents are the father and mother of the deceased
Suresh. The respondents 1 to 5/claimants filed MCOP.No.107 of 2017
before the Motor Accidents Claims Tribunal, Additional District Court,
Paramakudi claiming compensation for the demise of Suresh.
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CMA(MD)No.193 of 2020
4. The Tribunal after analysing the entire evidence on record,
awarded a sum of Rs.17,32,800/- together with interest at the rate of
7.5% per annum, as compensation to the respondents 1 to 5/claimants.
Questioning their liability to pay compensation and also the quantum of
compensation awarded by the Tribunal, the appellant/Insurance Company
has filed this appeal.
5. The learned counsel for the appellant would submit that this
appeal is filed by the Insurance Company mainly on two grounds. The
first ground is that the deceased Sasikumar, who was riding the
motorcycle was in a drunken mode and hence, contributory negligence
should be fixed on the part of the deceased. The second ground is that
the deceased Suresh and deceased Sasikumar were not wearing helmet at
the time of the accident and that the deceased Suresh died due to the
injury sustained by him on the head. The learned counsel, therefore,
would vehemently contend that if the deceased Suresh had worn the
helmet, he ought not have died. Therefore, he would submit that the
deceased died only due to his negligence and the appellant/Insurance
Company is not liable to pay any compensation to the respondents 1 to
5/claimants.
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CMA(MD)No.193 of 2020
6. The learned counsel for the respondents 1 to 5/claimants would
submit that there is no proper proof to the effect that the deceased
Sasikumar was in drunken mode at the time of accident. With regard to
the next ground, the learned counsel would submit that PW1, the wife of
the deceased Suresh has deposed that her husband was wearing helmet at
the time of accident. Therefore, he would contend that the Tribunal after
properly analysing the materials on record, fixed the liability on the
appellant/Insurance Company and prayed for dismissal of the appeal.
7. A perusal of the records shows that Dr.Aravindh, who was
examined as RW2 before the Tribunal, stated that they found smell of
alcohol on the deceased Sasikumar, during post mortem. The Tribunal
while deciding that aspect taken into consideration the Judgment of the
Principal Bench of this Court in the case of Mrs.Subbulakshmi and other
vs. S.Jeevarathinam and another, wherein, it is held that only when there
is scientific proof to the effect that the deceased was under the influence
of alcohol, it can be concluded that the accident happened due to the
effect of alcohol on the deceased. The Tribunal came to a conclusion that
there is no proper proof to the effect that the deceased Sasikumar was
under the influence of alcohol. This Court is of the view that the
Tribunal was right in deciding the above issue against the Insurance
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CMA(MD)No.193 of 2020
Company. The second main ground raised by the appellant/Insurance
Company is that the deceased Suresh, as a pillion rider was not wearing
helmet at the time of accident. A perusal of the First Information Report,
Ex.P1, shows that there is no whisper about whether the deceased Suresh
was wearing helmet or not. The driver of the offending vehicle, namely,
Varadharajan, who was examined as RW1 before the Tribunal, has
deposed that both the rider and pillion rider were not wearing any helmet
at the time of the accident. It is seen from the records that the deceased
Suresh sustained injuries on right eyebrow, left ear and forehead. After
seeing the nature of injuries sustained by the deceased Suresh on the
above parts, this Court is of the opinion that if he had worn helmet at the
time of accident, he ought not have sustained such injuries. Therefore,
this Court comes to a conclusion that the deceased was not wearing
helmet at the time of accident and fixes 10% contributory negligence on
the part of the deceased Suresh for not wearing helmet. In respect of
other aspects decided by the Tribunal, the Insurance Company has not
raised any objection. Hence, except fixing 10% contributory negligence
on the part of the deceased Suresh, all other aspects decided by the
Tribunal are hereby confirmed.
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CMA(MD)No.193 of 2020
8. The learned counsel for the respondents 1 to 5/claimants would
submit that the name of the second respondent is Monisha as per the
claim petition, and Judgment and decree in the claim petition, however,
in the Civil Miscellaneous Petition it is wrongly mentioned as Monish.
He would therefore, request this Court that the name of the second
respondent shall be corrected. The learned counsel for the appellant
raised no objection in this regard. Hence, this Court suo motu corrects
the name of the second respondent in the cause title as Monisha.
9. In the result,
(i) The Civil Miscellaneous Appeal is partly allowed. No costs.
Consequently, the connected Miscellaneous Petitions are closed.
(ii) The quantum of compensation awarded by the Tribunal is
confirmed.
(iii) Since the amount has already been deposited by the
appellant/Insurance Company, the respondents 1, 3 and 4/claimants 1, 3
and 4 are at liberty to withdraw 90% of the award amount, in the
apportionment fixed by the Tribunal, along with proportionate interest
and costs, after following due process of law. The share of the minor
respondents 2 and 5 shall be deposited in any one of the nationalized
Banks, till they attain majority. The first respondent/mother and guardian
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CMA(MD)No.193 of 2020
of the minor respondents 2 and 5 is permitted to withdraw the interest
from the above said deposit, once in three months directly from the Bank
and utilize the same for the welfare of the children.
(iv) The appellant/Insurance Company is at liberty to withdraw the
excess 10% of the award amount deposited by them together with
proportionate interest and costs, after following due process of law.
23.11.2021
Index : Yes/No
Internet : Yes/No
mbi
Note : Registry is directed to carryout necessary correction in the cause
list.
To
The Motor Accident Claims Tribunal,
Additional District Court, Paramakudi.
https://www.mhc.tn.gov.in/judis
CMA(MD)No.193 of 2020
S.ANANTHI, J.
mbi
CMA(MD)No.193 of 2020
23.11.2021
https://www.mhc.tn.gov.in/judis
