Madras High Court
The United India Insurance ... vs Jayammal on 24 January, 2022
C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
& C.M.P.No.14182 of 2016
C.M.A.No.1951 of 2016
The United India Insurance Company Ltd.,
Divisional Office II,
Peramanoor Main Road,
Salem 636 007. .. Appellant
Vs.
1.Jayammal
2.Saitu
3.Amarnath .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment and Decree dated 31.03.2016 in
M.C.O.P.No.92 of 2014 on the file of the Motor Accident Claims Tribunal,
Additional District Court, Salem.
For Appellant : Mr.J.Chandran
For Respondents : Mr.S.P.Yuvaraj for R1 and R2
https://www.mhc.tn.gov.in/judis
C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
Cross Objection No.39 of 2021:
1.Jayammal
2.Saitu .. Cross Appellants
Vs.
1.The United India Insurance Company Ltd.,
Divisional Office II,
Peramanoor Main Road,
Salem 636 007.
2.Amarnath .. Respondents
Prayer: This Cross Appeal is filed under Order XLI Rule 22 of C.P.C against
C.M.A.No.1951 of 2016 which has been filed against the judgment and decree
dated 31.03.2016 made in M.C.O.P.No.92 of 2014 on the file of the Motor
Accident Claims Tribunal, Additional District Court, Salem.
For Cross Appellants : Mr.S.P.Yuvaraj
For R1 : Mr.J.Chandran
COMMON JUDGMENT
This Civil Miscellaneous Appeal has been filed by the Insurance
Company against the award dated 31.03.2016 made in M.C.O.P.No.92 of 2014
on the file of the Motor Accident Claims Tribunal, Additional District Court,
Salem.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
2.The Cross-Objection has been filed by the claimants in
M.C.O.P.No.92 of 2014 seeking enhancement of compensation granted by the
Tribunal in the award dated 31.03.2016 made in M.C.O.P.No.92 of 2014 on
the file of the Motor Accident Claims Tribunal, Additional District Court,
Salem.
3.The appellant/Insurance Company is the 2nd respondent in
M.C.O.P.No.92 of 2014 on the file of the Motor Accident Claims Tribunal,
Additional District Court, Salem. The respondents 1 and 2 filed the said claim
petition against the appellant as well as the 3rd respondent being insurer and
owner of the offending vehicle, claiming a sum of Rs.25,00,000/- as
compensation for the death of one Selembarasan, who died in the accident that
took place on 17.04.2013.
4.According to the respondents 1 and 2, on the date of accident i.e.,
17.04.2013 at about 2.30 a.m., while the deceased Selembarasan was travelling
as a pillion rider in the motorcycle driven by the 3rd respondent, rider-cum-
owner of the motorcycle rode the same in a rash and negligent manner on
https://www.mhc.tn.gov.in/judis
C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
Salem to Tirupathy road, near Ambur, hit against the Eicher van and fell down.
In the said accident, the said Selembarasan sustained grievous head injury and
died. Therefore, the respondents 1 and 2 have filed the claim petition claiming
a sum of Rs.25,00,000/- as compensation against the 3rd respondent as well as
the appellant being owner and insurer of the motorcycle.
5.The appellant/Insurance Company filed counter statement denying all
the averments made in the claim petition and stated that when the deceased
was travelling as a pillion rider in a motorcycle driven by the 3rd
respondent/owner, near Ambur bus stand, the driver of the Eicher van drove
the same behind the motorcycle in a rash and negligent manner and dashed on
the rear side of the motorcycle. Due to that impact, the deceased fell down
from the motorcycle and sustained head injuries and died at Government
Hospital, Vellore. The accident occurred only due to the negligence of the
Eicher van. The First Information Report was also registered against the said
driver of the Eicher van and it is a clear case of “Hit and Run”. Since the
respondents 1 and 2 could not find out the registration number of the Eicher
van, with a malafide intention to make out a wrongful gain, falsely averted that
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
accident occurred due to negligence of the 3rd respondent/rider of the
motorcycle. The Motor Vehicles Inspector's Report revealed that the Eicher
van ran over the motorcycle and hence, the insurer of the Eicher van alone is
liable to pay compensation to the respondents 1 and 2. The claim petition is
bad for non-joinder of owner and insurer of the Eicher van and mis-joinder of
appellant, insurer of the motorcycle. The respondents 1 and 2 without any
evidence claim that at the time of accident the deceased was a Sales Man,
earning a sum of Rs.12,000/- per month besides doing B.Ed Course. In any
event, the compensation claimed by the respondents 1 and 2 are excessive and
prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1 and
examined one Thangaraj, eye-witness as P.W.2 and marked 6 documents as
Exs.P1 to P6. The appellant/Insurance Company examined their official, one
Jeyavel as R.W.1 and marked Insurance Policy as Ex.R1.
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
7.The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occurred due to the negligence of both the
driver of the eicher van as well as the rider of the motorcycle. The Tribunal
considering the evidence of P.W.2, eye-witness to the accident, held that 3rd
respondent/ rider-cum-owner of the motorcycle while trying to over take the
eicher van, hit against the eicher van and caused the accident and directed the
appellant/Insurance Company being insurer of the motorcycle to pay a sum of
Rs.8,01,000/- as compensation to the respondents 1 and 2.
8.Against the said award dated 31.03.2016 made in M.C.O.P.No.92 of
2014, the appellant-Insurance Company has come out with the present appeal
and not being satisfied with the amounts awarded by the Tribunal, the
respondents 1 and 2 have come out with the present cross objection, seeking
enhancement of compensation.
9.The learned counsel appearing for the appellant/Insurance Company
contended that the accident occurred due to rash and negligent driving by
driver of the Eicher van. The 3rd respondent who was rider of motorcycle gave
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
a complaint that the accident occurred due to rash and negligent driving by
driver of Eicher van. As per the statement of the 3rd respondent, the driver of
the Eicher van did not stop the van and hence, he could not note down the
registration number of the Eicher van. The Police, after registering the First
Information Report against the driver of the Eicher van, filed referred charge
sheet as undeductable. In view of the same, the respondents 1 and 2 have
claimed that the accident has occurred due to rash and negligent driving by 3rd
respondent, rider-cum-owner of the motorcycle. In any event, the Tribunal
having held that the accident occurred due to negligence of both 3rd respondent,
rider of the motorcycle as well as the driver of the Eicher van, erroneously
fastened the entire liability on the appellant/Insurance Company, without
apportioning 50% liability on the other vehicle. The respondents 1 and 2 failed
to prove the avocation and income of the deceased and the notional income
fixed by the Tribunal is excessive. The respondents 1 and 2 have not made out
any case for enhancement and prayed for setting aside the award of the
Tribunal.
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
10.The learned counsel appearing for the respondents 1 and 2 filed cross
objection and contended that the accident occurred only due to rash and
negligent driving by the 3rd respondent, rider-cum-owner of the motorcycle.
The 3rd respondent, rider-cum-owner of the motorcycle, in order to escape from
his liability, gave a false complaint that the accident occurred only due to rash
and negligent driving by driver of the Eicher van. The respondents 1 and 2
examined one Thangaraj, eye-witness to the accident as P.W.2, to prove that
the accident occurred only due to rash and negligent driving by 3rd respondent,
rider-cum-owner of the motorcycle. The Tribunal erroneously held that both
the driver of the Eicher van as well as the 3rd respondent, rider-cum-owner of
the motorcycle, were negligent and caused the accident. At the time of
accident, the deceased was working as a Sales Man in Men's Wear and was
earning a sum of Rs.12,000/- per month. The Tribunal erroneously fixed a
meagre amount of Rs.7,000/- per month as notional income of the deceased.
The deceased was aged 24 years at the time of accident. The Tribunal has not
granted any enhancement towards future prospects and compensation for loss
of estate. The Tribunal has awarded a meagre amount towards loss of love and
affection and prayed for enhancement of compensation and dismissal of the
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
appeal.
11.Heard the learned counsel appearing for the appellant/Insurance
Company as well as the learned counsel appearing for the respondents 1 and 2
and perused the entire materials on record.
12.From the materials available on record, it is seen that at the time of
accident, the deceased travelled as a pillion rider in the motorcycle bearing
Registration No.TN 54 D 1652, driven by the 3rd respondent. In the accident,
the deceased sustained fatal injury. According to the respondents 1 and 2, the
3rd respondent drove the motorcycle in a rash and negligent manner and dashed
against the Eicher van and caused the accident. It is the further case of the
respondents 1 and 2 that the 3rd respondent, in order to escape from his
liability, gave a false complaint against the driver of the Eicher van. The 1st
respondent examined herself as P.W.1, before the Tribunal and deposed as per
the averments in the claim petition. She is not an eye-witness to the accident.
The respondents 1 and 2 examined one Thangaraj, eye-witness to the accident
as P.W.2, who deposed that when the 3rd respondent tried to over take the
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
Eicher van, he lost the control. At that time, the Eicher van hit the motorcycle
and thus the accident occurred. In the accident, both the 3rd respondent/rider-
cum-owner of the motorcycle as well as the deceased/ pillion rider fell down
and van hit the deceased and caused fatal injury.
13.On the other hand, it is the case of the appellant that the accident
occurred only due to rash and negligent driving by driver of the Eicher van.
The appellant/Insurance Company relied on the First Information Report to
substantiate their contention. The First Information Report was registered
based on the complaint given by the 3rd respondent and he is an interested
person. It is the case of the respondents 1 and 2 that in order to escape from his
liability, the 3rd respondent gave a false complaint against the driver of Eicher
van. The 3rd respondent did not appear before the Tribunal and prove the
statement given by him. Admittedly, the accident occurred near Ambur bus
stand. It is also seen from the claim petition that the driver of the auto took the
deceased as well as the 3rd respondent/rider of the motorcycle to the Hospital.
The respondents 1 and 2 examined one of the eye-witnesses. The appellant did
not examine any eye-witness to prove that the accident occurred due to
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
negligence by driver of the van. In such circumstances, the Tribunal considered
the evidence of P.W.2, to fix the negligence. P.W.2 has deposed that the 3rd
respondent/rider of the motorcycle tried to over take Eicher van and lost
control and at that time, the van hit the motorcycle. The evidence of P.W.2
shows that the 3rd respondent/rider of the motorcycle has also contributed
negligence. The Tribunal considered this fact in proper perspective and held
that both the driver of the van as well as 3rd respondent/rider of the motorcycle
are responsible for the accident. There is no error in the finding of the Tribunal.
Having held so, the Tribunal failed to apportion percentage of negligence on
the part of the driver of the van and 3rd respondent/rider of the motorcycle.
Considering the materials on record, this Court is of the view that both the
driver of the van and 3rd respondent/rider of the motorcycle are equally
responsible for the accident and each contributed 50% negligence to the
accident. The Tribunal having held that both the driver of the van and 3rd
respondent/rider of the motorcycle are responsible for the accident, erroneously
fastened entire liability on the appellant/Insurance Company. Therefore, the
said portion of the award alone is hereby set aside and the appellant/Insurance
Company is liable to pay only 50% of the compensation awarded by the
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
Tribunal.
14.As far as quantum of compensation is concerned, the respondents 1
and 2 claimed that the deceased was working as a Sales Man in Men's Wear
and was earning a sum of Rs.12,000/- per month. They have not filed any
documents, except Mark Sheet and Transfer Certificate of the deceased. In the
absence of material evidence with regard to avocation and income, the Tribunal
has fixed a sum of Rs.7,000/- per month as notional income of the deceased.
The accident is of the year 2013. The notional income fixed by the Tribunal is
meagre. Considering the date of accident and age of the deceased, a sum of
Rs.9,000/- per month is fixed as notional income of the deceased. The
deceased was aged 24 years at the time of accident. The Tribunal has not
granted any enhancement towards future prospects. The claimants are entitled
to 40% enhancement towards future prospects. The deceased died as bachelor
aged 24 years. Hence, the Tribunal has rightly deducted 50% towards personal
expenses and applied multiplier '18'. By granting 40% enhancement towards
future prospects, the amount granted by the Tribunal towards loss of
dependency is modified to Rs.13,60,800/- {Rs.12,600/- [Rs.9,000/- +
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
Rs.3,600/- (40% of Rs.9,000/-)] X 12 X 18 X 1/2}. The Tribunal has awarded
a meagre amount of Rs.20,000/- towards loss of love and affection and the
same is hereby enhanced to Rs.80,000/-. The amounts granted by the Tribunal
towards funeral expenses is excessive and the same is reduced to Rs.15,000/-.
The Tribunal has not awarded any amount towards loss of estate. Hence, a sum
of Rs.15,000/- is awarded towards loss of estate. Thus, the compensation
awarded by the Tribunal is modified as follows:
S. No Description Amount Amount Award confirmed
awarded by awarded by or enhanced or
Tribunal this Court granted
(Rs) (Rs)
1. Loss of dependency 7,56,000/- 13,60,800/- Enhanced
2. Loss of love and affection 20,000/- 80,000/- Enhanced
3. Funeral expenses 25,000/- 15,000/- Reduced
4. Loss of estate - 15,000/- Granted
Total 8,01,000/- 14,70,800/- Enhanced by
Rs.3,34,900/-
50% of compensation 4,00,500/- 7,35,400/-
(Rs.7,35,400/-
-
Rs.4,00,500/-)
15.In the result, both the Civil Miscellaneous Appeal and Cross
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
Objection are partly allowed and the amount awarded by the Tribunal at
Rs.8,01,000/- is hereby enhanced to Rs.14,70,800/- together with interest at
the rate of 7.5% per annum from the date of petition till the date of deposit.
The appellant/Insurance Company is directed to deposit 50% of the award
amount now determined by this Court (i.e., Rs.7,35,400/-) along with
proportionate interest and costs, less the amount if any already deposited,
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.92 of 2014 on the file of the Motor Accident
Claims Tribunal, Additional District Court, Salem. On such deposit, the
respondents 1 and 2 are permitted to withdraw their respective share of the
award amount, now determined by this Court as per the ratio of apportionment
fixed by the Tribunal along with proportionate interest and costs after adjusting
the amount, if any already withdrawn, by filing necessary applications before
the Tribunal. Consequently, the connected Miscellaneous Petition is closed. No
costs.
24.01.2022
Index : Yes / No
vkr
To
1.The Additional District Judge,
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C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
Motor Accident Claims Tribunal,
Salem.
2.The Section Officer,
VR Section, High Court,
Madras.
V.M.VELUMANI, J.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
vkr
C.M.A.No.1951 of 2016
and Cross Objection No.39 of 2021
& C.M.P.No.14182 of 2016
24.01.2022
https://www.mhc.tn.gov.in/judis
