The Reliance General Insurance ... vs Kumareswari
2021 Latest Caselaw 23374 Mad

                                                                      CMA.No.3319 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                               DATED: 30.11.2021
                                                     CORAM:
                                  THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
                                               CMA.No.3319 of 2021
                                                      and
                                               CMP.No.18874 of 2021

                     The Reliance General Insurance Co. Ltd.,
                     No.408, 3rd Floor, Perundurai Road,
                     Erode – 11.                                           ...Appellant

                                                        Vs.

                     1.Kumareswari

                     2.Minor Anushka

                     3.Chettiyammal

                     4.Periyasamy

                     5.Minor Anish

                     6.Rajendran

                     7.Venkatachalam

                     8.Chomandalam MS General Insurance Co. Ltd.,
                       State Bank of Thiruvangur Upstairs,
                       9th Floor, Asthampatti, Salem – 636 007.         ..Respondents




                     1/8


https://www.mhc.tn.gov.in/judis
                                                                                  CMA.No.3319 of 2021

                     Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
                     Vehicles Act, 1988, against the judgment and decree dated 07.10.2017
                     passed in MCOP.No.852 of 2011 on the file of the MACT (Sub-Court),
                     Sankagiri.


                                           For Appellant      : Mr.B.Pragadeesh




                                                   JUDGMENT

The Appellant / Insurance Company challenges the award of a

sum of Rs.29,55,000/- for the death of one Suresh, who died in a road

accident that occurred on 16.09.2011. The factum of the accident is not in

dispute. The claimants / wife, child and parents, who are dependents of the

deceased Suresh sought for a compensation of Rs.10,00,000/- for the death.

2.It was contended that the said Suresh was a Mason and while he

was riding his motor cycle bearing Registration No.TN-48-D-1297 on

Tiruchengode to Vellore road, the motor cycle bearing Registration No.TN-

34-J-8226, which was coming in the opposite direction being driven by the

3rd respondent in a rash and negligent manner dashed against the motor

cycle and both Suresh and his friend Muthu, who was a pillion rider fell

https://www.mhc.tn.gov.in/judis CMA.No.3319 of 2021

down and the lorry bearing Registration No.TN-52-A-3962 ran over the

head of Suresh, resulting in his death on the spot. The claimants contended

that Suresh, who was working as a Mason and also doing building contract

work, was earning Rs.10,000/- per month. The deceased was aged 24 years

at the time of the death. While the owners and drivers of the offending

vehicles remained exparte, the Insurance Companies resisted the claim.

3.The Appellant / Insurance Company, who is the insurer of the

two wheeler bearing Registration No.TN-34-J-8226 resisted the claim

contending that there was no negligence on the part of the driver of the said

vehicle and the person, who drove the vehicle at the time of the accident did

not have valid license. It was also contended that it was the contributory

negligence on the part of Suresh, which led to the accident. The Insurer of

the lorry cited as 4th respondent disputed the income and status of the

claimants as dependents. It also pleaded that Suresh had contributed to the

accident. The Tribunal, upon examination of the evidence on record

concluded that there was no negligence on the part of the deceased. The

Tribunal also took note of the contents of the First Information Report and

https://www.mhc.tn.gov.in/judis CMA.No.3319 of 2021

concluded that the negligence was on the part of the rider of the two

wheeler namely, TN-34-J-8226 and the lorry bearing Registration No.TN-

52-A-3962. Therefore, the Tribunal held that both the insurers are liable

equally for payment of compensation. The compensation was apportioned

at 50% each on the Insurers of the offending vehicles.

4.On the quantum, the Tribunal fixed monthly income of the

deceased at Rs.10,000/- and granted 50% towards future prospects and fixed

the monthly loss of earning at Rs.15,000/-. Considering the fact that there

were four dependants, the Tribunal deducted ¼ and fixed the annual loss of

dependency at Rs.1,35,0000/-. Adopting a multiplier of 18, the Tribunal

arrived the total loss of income at Rs.24,30,000/-. The Tribunal also granted

a sum of Rs.1,00,000/- towards loss of consortium for the wife,

Rs.4,00,000/- towards loss of love and affection and Rs.25,000/- towards

funeral expenses. In all, the Tribunal awarded a sum of Rs.29,55,000/- as

compensation. The appellant / Insurance Company has been directed to

deposit 50% of the said award.

5.I have heard Mr.B.Pragadeesh, learned counsel appearing for

https://www.mhc.tn.gov.in/judis CMA.No.3319 of 2021

the appellant / Insurance Company.

6.Mr.B.Pragadeesh would vehemently contend that the Tribunal

erred in fixing the monthly income at Rs.10,000/- and adding 50% towards

future prospectus. He would also further contend that the Tribunal must

have apportioned certain amount of contributory negligence on the part of

the deceased also. Admittedly, the deceased was a Mason. The claimants

have stated that he was earning Rs.10,000/- per month. Even in the year

2011, a Mason was earning atleast 500 to 700 rupees per day. Even if he

had worked for 20 days a month, he would have earned not less than

Rs.10,000/- to 14,000/- per month. I therefore, do not see any error on the

part of the Tribunal fixing the monthly income at Rs.10,000/- and adding

50% towards future prospects. Considering the age of the deceased, a

proper multiplier has also applied and deduction ¼ towards personal

expenses is also just and reasonable. I therefore, do not see any ground to

interfere with the quantum of compensation awarded by the Tribunal on the

head of the loss of dependency.

https://www.mhc.tn.gov.in/judis CMA.No.3319 of 2021

7.On the question of contributory negligence, I find no evidence

on the part of the Insurance Companies. Both the Insurers have not chosen

to let in any evidence. Merely, because the deceased was driving a two

wheeler, negligence cannot be presumed. There must be some evidence to

show that there was negligence on the part of the dceased. The Insurance

Companies could have done well to examine the driver of the two wheeler

or the lorry to speak about the negligence on the part of the deceased. In the

absence of any evidence, I do not think, the Insurance Company can raise

the question of negligence. I therefore, do not find any ground to interfere

either with the quantum or negligence as found by the Tribunal. This civil

miscellaneous appeal therefore, fails and it is accodingly dismissed. No

costs. Consequently, connected miscellaneous petition is closed.

30.11.2021

kkn

Index:No Internet:Yes Speaking

https://www.mhc.tn.gov.in/judis CMA.No.3319 of 2021

To:-

1.The Motor Accident Claims Tribunal, Sub-Court, Sankari.

https://www.mhc.tn.gov.in/judis CMA.No.3319 of 2021

R.SUBRAMANIAN, J.

KKN

CMA.No.3319 of 2021 and CMP.No.18874 of 2021

30.11.2021

https://www.mhc.tn.gov.in/judis