Madras High Court
The Branch Manager vs Vijayalakshmi on 25 April, 2022
C.M.A.No.636 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.04.2022
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
C.M.A.No.636 of 2022
and C.M.P.No.4506 of 2022
The Branch Manager,
Reliance General Insurance Company Ltd.,
SM Towers, 2nd Floor, 11th Main Road,
3rd Block, Jaya Nagar, Bangalore - 560 011.
C/o.The Branch Manager,
Reliance General Insurance Company Ltd.,
6th Floor, Reliance House, No.6, Haddows Road,
Nungambakkam, Chennai 600 006 ... Appellant
-Vs.-
1. Vijayalakshmi
2. Minor Manasa
3. Minor Monika
(minors 2 and 3 rep by their mother and
next friend Vijayalakshmi)
4. K.N.Vinodkumar ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the award and decree dated 19.02.2020 passed in
M.C.O.P.No.347 of 2018, by the learned Additional District Judge at Hosur.
For Appellant : Ms.C.Bhuvanasundari
For R1/Caveator : Mr.PA.Sudesh Kumar
For R2 and R3 : Minors, Rep by R1
For R4 : Not ready in notice
1/7
https://www.mhc.tn.gov.in/judis
C.M.A.No.636 of 2022
JUDGMENT
The second respondent-Insurance Company before the Tribunal has
challenged the award passed by the learned Additional District Judge, (Motor
Accident Claims Tribunal) at Hosur in M.C.O.P.No.347 of 2018, dated
19.02.2020.
2. The parties are referred to in the same array as before the
Tribunal.
3. The facts preceding the filing of this appeal are as follows:-
The petitioners, who are the legal representatives of the deceased
Venkatesh, being his wife and minor children, had filed M.C.O.P.No.347 of
2018, claiming compensation of a sum of R.50,00,000/- (Rupees fifty lakhs
only) for the death of the said Venkatesh in a road accident that occurred on
03.09.2017. It is the case of the petitioners that the deceased Venkatesh was a
Plumber by profession and aged about 35 years. He used to earn a monthly
income of Rs.20,000/-. They would contend that on 03.09.2017, the deceased
was proceeding from Dommasandra to Anekal in the night on his Honda Activa
Scooter, bearing Registration No.KA-51-V-4906 for visiting his relatives.
When he was proceeding towards Chandapura and as he neared the SBMS
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C.M.A.No.636 of 2022
Concrete Factory, Dommasna, Anekal Taluk, the bus belonging to the first
respondent, bearing Registration No.KA-25-B-2133 and insured with the
second respondent came in the opposite direction and the bus was driven in a
rash and negligent manner by its driver in an uncontrollable speed. As a result
of rash and negligent driving, the bus had collided with the vehicle of the
deceased Venkatesh, as a result of which, he had fallen off the scooter and the
bus ran over the scooter. Since the accident had occurred only on account of
the negligent driving of the first respondent's vehicle, the petitioners had come
forward with the claim petition.
4. The first respondent remained ex-parte and the second respondent
had filed a counter statement seeking permission to contest the case in the name
of their insured on all grounds under Section 170 of the Motor Vehicles Act.
5. The Insurance Company would submit that the accident had
occurred only on account of the rash and negligent act of the driver (deceased
Venkatesh) of the Honda Activa Scooter. They had pleaded that there was no
negligence on the part of the driver of the bus. Therefore, the Insurance
Company sought for dismissal of the claim petition.
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C.M.A.No.636 of 2022
6. The Tribunal below relied on Ex.P1-F.I.R and the evidence of
P.W.1 to come to the conclusion that the accident had occurred only on account
of the negligence of the bus driver and had proceeded to grant the
compensation of a sum of Rs.21,31,000/-. It is aggrieved by this award that the
Insurance Company is before this Court.
7. Heard the learned counsel for the appellant-Insurance Company
and the learned counsel for the first respondent/Caveator.
8. From a perusal of Column 23 of the claim petition and also the
award of the Tribunal, it is seen that the accident was a head on collusion. If
the deceased Venkatesh had ridden the bike on the extreme left side of the
road, there is no possibility of there being a head on collusion, since the bus is
coming from the opposite direction on the right hand side. It should be seen
that the deceased had also contributed for the accident. Further, the evidence
would show that the deceased did not possess a valid driving licence and he
was not wearing his helmet. The Tribunal below has not taken into account
these factors, which clearly proves the negligence on the part of the deceased as
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C.M.A.No.636 of 2022
well. In fact, the Tribunal has not addressed the above defence raised by the
Insurance Company.
9. Therefore, taking into account the fact that the accident was head
on collusion and the deceased had not worn his helmet or possessed the driving
licence, negligence of 15% has to definitely be mulcted on the deceased.
Therefore, the apportionment of negligence would be 15% on the deceased and
85% on the Insurance Company. The quantum of compensation awarded is
reasonable and does not require any modification.
10. In the result, the Civil Miscellaneous Petition is partly allowed
with the respondents 1 to 3/petitioners being apportioned with 15% negligence.
Therefore, the appellant-Insurance Company shall be liable to pay
compensation of a sum of Rs.18,11,350/- (Rupees eighteen lakhs eleven
thousand three hundred and fifty only) to the respondents 1 to 3/petitioners.
The appellant-Insurance Company is directed to deposit the said amount to the
credit of M.C.O.P.No.347 of 2018 along with interest at the rate of 7.5% per
annum from the date of claim petition till the date of deposit and costs as
awarded by the Tribunal, less, the amount, if any already deposited, within a
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C.M.A.No.636 of 2022
period of six weeks from the date of receipt of a copy of this judgment. The
award shall be equally proportioned among the legal heirs and the share of the
minors shall be deposited in any one of the nationalized bank till they attain
majority and the respondent/first petitioner shall be permitted to withdraw
quarterly interest from the said amount. The respondents 1 to 3 / petitioners
shall forfeit the remaining 15% of the award amount due to the deceased
contributory negligence. On such deposit being made, the petitioners are
permitted to withdraw the award amount, along with accrued interest and costs
as awarded by the Tribunal, less, the amount, if any already withdrawn, by
filing necessary application before the Tribunal. In other respects, the Award of
the Tribunal is hereby confirmed. There shall be no order as to costs in the
present appeal. Consequently, connected miscellaneous petition is closed
25.04.2022
Index:Yes/No
Speaking Order : Yes/No
srn
To
1. The Additional District Judge (MACT), Hosur
2.The Section Officer, V.R.Section, High Court of Madras, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.636 of 2022
P.T.ASHA.J
srn
C.M.A.No.636 of 2022
and C.M.P.No.4506 of 2022
25.04.2022
https://www.mhc.tn.gov.in/judis
