Madras High Court
National Insurance Company ... vs Sathuragiri on 24 November, 2021
CMA(MD)Nos.685 and 686 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.11.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.ANANTHI
CMA(MD)Nos.685 and 686 of 2013 &
MP(MD)Nos.1 and 1 of 2013
CMA(MD)No.685 of 2013
National Insurance Company Limited,
Represented by its Branch Manager,
Ganesh Complex,
1754-1756, Manojiappa Street,
South Main Road,
Thanjavur ... appellant
vs.
1.Sathuragiri
2.Minor Mahalakshmi
(Represented by mother/1st respondent)
3.Karuppa Thevar
4.P.Balamurugan
5.Amsavalli ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 to set aside the Judgment and decree dated
03.04.2008 in MCOP.No.152/2006 on the file of the Motor Accidents
Claims Tribunal / Sub Judge, Aruppukottai.
https://www.mhc.tn.gov.in/judis
CMA(MD)Nos.685 and 686 of 2013
For Appellant :Mr.K.L.Muniyarasu
for Mr.R.Srinivasan
For Respondents : Mr.M.Saravana Kumar for R1 to R4
CMA(MD)No.686 of 2013
National Insurance Company Limited,
Represented by its Branch Manager,
Ganesh Complex,
1754-1756, Manojiappa Street,
South Main Road,
Thanjavur ... appellant
vs.
1.Jaggammal
2.Rajeswari
3.Rani
4.Pushpavalli
5.Muthumari
6.Jayakodi
7.Manikandan
8.Balamurugan
9.Amsavalli ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 to set aside the Judgment and decree dated
03.04.2008 in MCOP.No.153/2006 on the file of the Motor Accidents
Claims Tribunal / Sub Judge, Aruppukottai.
https://www.mhc.tn.gov.in/judis
CMA(MD)Nos.685 and 686 of 2013
For Appellant :Mr.K.L.Muniyarasu
for Mr.R.Srinivasan
For Respondents : Mr.M.Saravana Kumar for R2 to R6
No appearance for R1
COMMON JUDGMENT
These appeals are filed by the Insurance Company to set aside the
Judgment and decree dated 03.04.2008 in MCOP.Nos.152/2006 &
153/2006 on the file of the Motor Accidents Claims Tribunal / Sub
Judge, Aruppukottai.
2. On 07.06.2006, the deceased, namely, Masanam, was riding a
two wheeler bearing Registration No.TN 67 F 1303 along with the
deceased Marnad as pillion rider. At about 02.30 pm, a lorry bearing
Registration No.TN 34 5108, driven by Balamurugan, owned by
Amsavalli and insured with the National Insurance Company Limited
came in a rash and negligent manner and dashed against the two wheeler,
as a result of which, the deceased Masanam sustained grievous injuries
and died in the Government Rajaji Hospital, Madurai on the same day
and the deceased Marnad, sustained grievous injuries and died in the
Government Rajaji Hospital, Madurai on 15.06.2006.
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CMA(MD)Nos.685 and 686 of 2013
3. MCOP.No.152/2006 was filed by the legal heirs of the deceased
Masanam claiming compensation for the demise of Masanam.
MCOP.No.153/2006 was filed by the legal heirs of the deceased Marnad
claiming compensation for the demise of Marnad.
4. The Motor Accidents Claims Tribunal, Subordinate Court,
Aruppukottai after perusing the materials on record, awarded a sum of
Rs.4,60,000/- together with interest at the rate of 7.5% per annum, as
compensation to the claimants in MCOP.No.152/2006. In respect of
MCOP.No.153/2006, the Tribunal after analyzing the evidence on record,
awarded a sum of Rs.3,44,020/- to the claimants. Challenging the award
passed by the Tribunal in both MCOPs, the Insurance Company has filed
these appeals.
5. The learned counsel appearing for the appellant / Insurance
Company submitted that as per the evidence of PW3, namely Ramasamy,
three persons were travelling on the two wheeler, which was ridden by
the deceased Masanam on the date of accident and hence, contributory
negligence should be fixed on the part of the deceased persons. He relied
on the decision of the Division Bench of the Principal Seat of this Court
in the case of Managing Director, Tamil Nadu State Transport
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CMA(MD)Nos.685 and 686 of 2013
Corporation (Coimbatore Division-I) Limited, Coimbatore, formerly
Cheran Transport Corporation, Coimbatore vs. Abdul Salam and others
reported in 2004 (2) TN MAC 59 (DB). In paragraphs 13 and 14 of the
Judgment it is held that,
"13. When three persons travelled in a
motorcycle which is meant for two persons, this
Court is of the view, the conduct of the persons
who travelled in such a manner are liable for
contributory negligence; especially when their
action is contrary to the statute.
14. Hence we hold that the deceased was
liable for 50% of the contributory negligence and
consequently 50% of the compensation is
deducted towards contributory negligence ....."
Therefore, the learned counsel submitted that 50% contributory
negligence should be fixed on the part of the deceased persons.
6. The learned counsel appearing for the claimants in MCOP.Nos.
152/2006 & 153/2006, submitted that the Tribunal after elaborate
consideration of evidences and documents, held that even though three
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CMA(MD)Nos.685 and 686 of 2013
persons travelled on the two wheeler, the accident occurred only due to
the rash and negligent driving of the driver of the lorry. That being so,
contributory negligence cannot be fixed on the part of the deceased
persons. He relied on the decision of the Division Bench of the Principal
Seat of this Court in the case of Kattabomman Transport Corporation
Limited vs. Vellai Duraichi and other reported in 2004 ACJ 1510. In
paragraph 8 of the Judgment, it is held that,
"8.....There is no evidence to show that
the accident occurred because of travelling of
three persons on the motorcycle. In the light of
the above said conclusion, we reject the contra
argument made by the learned counsel for the
appellant."
The learned counsel submitted that in the above decision, it is clearly
held that there is no evidence to prove that the accident happened only
because of the travelling of three persons on the motorcycle. Even in this
case, negligence on the part of the deceased persons was not proved.
PW3, namely, Ramasamy, who travelled along with the deceased persons
on the date of accident, has deposed that the accident happened only due
to the rash and negligent driving of the driver of the lorry. Therefore, he
prayed for dismissal of the appeals.
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CMA(MD)Nos.685 and 686 of 2013
7. Heard both sides, perused the materials and gone through the
citations relied on by the counsels.
8. A perusal of the evidence of PW3 clearly shows that three
persons namely deceased Masanam, deceased Marnad and Ramasamy
travelled on the two wheeler on the date of accident. Ex.P1, First
Information Report was registered against the driver of the lorry and
Ex.P2, Charge Sheet was also filed against the driver of the lorry. Though
First Information Report and Charge Sheet were against the driver of the
lorry, this Court is of the opinion that when three persons travel in a two
wheeler, which is meant for two persons, proper balance will not be
there. Hence, 10% contributory negligence ought to be fixed on the part
of the rider and pillion riders of the two wheeler. All other aspects dealt
with by the Tribunal are hereby confirmed, expect that the appellant /
Insurance Company is liable to pay only 90% of the compensation
awarded by the Tribunal in MCOP.Nos.152/2006 and 153/2006
respectively.
9. The learned counsel for the appellant / Insurance Company
would submit that entire compensation awarded by the Tribunal in
MCOP.Nos.152/2006 and 153/2006 have already been deposited.
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CMA(MD)Nos.685 and 686 of 2013
10. In the result,
(i) The Civil Miscellaneous Appeals are partly allowed. No costs.
Consequently, the connected Miscellaneous Petitions are closed.
(ii) The quantum of compensation awarded by the Tribunal in
MCOP.Nos.152/2006 and 153/2006 respectively are confirmed.
(iii) CMA(MD)No.685/2013: The respondents 1 and 3 are at
liberty to withdraw 90% of the award amount in MCOP.No.152/2006, in
the apportionment fixed by the Tribunal, along with proportionate
interest and costs, after following due process of law. The share of the
minor second respondent shall be deposited in any one of the
nationalized Banks, till she attains majority. The first respondent/mother
of the minor second respondent 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 child.
(iv) CMA(MD)No.686/2013: The respondents 1 to 7 are at liberty
to withdraw 90% of the award amount in MCOP.No.153/2006, in the
apportionment fixed by the Tribunal, along with proportionate interest
and costs, after following due process of law.
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CMA(MD)Nos.685 and 686 of 2013
(v) The appellant / Insurance Company is at liberty to withdraw the
excess 10% of the award amount deposited by them in MCOP.Nos.
152/2006 and 153/20016 respectively on the file of the Motor Accidents
Claims Tribunal / Subordinate Court, Aruppukottai together with
proportionate interest and costs, after following due process of law.
24.11.2021
Index : Yes/No
Internet : Yes/No
mbi
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.
To
The Motor Accidents Claims Tribunal,
Subordinate Court,
Aruppukottai.
https://www.mhc.tn.gov.in/judis
CMA(MD)Nos.685 and 686 of 2013
S.ANANTHI, J.
mbi
CMA(MD)Nos.685 and 686 of 2013
24.11.2021
https://www.mhc.tn.gov.in/judis
