Madras High Court

The Branch Manager vs Maragadham on 6 January, 2022

                                                                          C.M.A.No.2839 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 06.01.2022

                                                         CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                C.M.A.No.2839 of 2014
                                                 and M.P.No.1 of 2014

                  The Branch Manager,
                  M/s.United India Insurance Company Limited,
                  342-A, Post Office Street,
                  N.H.Road, Avinashi.                                            .. Appellant
                                                    Vs.

                  1.Maragadham
                  2.Saravanan
                  3.Gowsalya
                  4.Sivakumar                                                    .. Respondents

                  (R4 set exparte before MACT. Notice
                  may be dispensed with.)
                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
                  Motor Vehicles Act, 1988, against the judgment and decree dated 29.02.2012
                  made in M.C.O.P.No.1318 of 2010, on the file of the V Fast Track Court,
                  Additional District Judge, (Motor Accidents Claims Tribunal), Coimbatore at
                  Tiruppur.

                                         For Appellant     : Ms.I.Malar

                                         For Respondents : Mr.M.Lokesh (For R1 to R3)
                                                           for M/s.Ma.P.Thangavel



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                                                                              C.M.A.No.2839 of 2014




                                                    JUDGMENT

(The matter is heard through “Video Conferencing/Hybrid mode”.)

This Civil Miscellaneous Appeal has been filed by the appellant-

Insurance Company to set aside the judgment and decree dated 29.02.2012

made in M.C.O.P.No.1318 of 2010, on the file of the V Fast Track Court,

Additional District Judge, (Motor Accidents Claims Tribunal), Coimbatore at

Tiruppur.

2.The appellant is the 2nd respondent in M.C.O.P.No.1318 of 2010, on

the file of the V Fast Track Court, Additional District Judge, (Motor Accidents

Claims Tribunal), Coimbatore at Tiruppur. The respondents 1 to 3/claimants

filed the said claim petition, claiming a sum of Rs.20,00,000/- as

compensation for the death of one M.Dhandapani, who died in the accident

that took place on 12.06.2010.

3.According to the respondents 1 to 3, on the date of accident, when the

deceased M.Dhandapani was riding a Two Wheeler bearing Registration

No.TN-40-W-8696 in the Rayampalayam near Thanneerpandhal, Avinashi,

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the rider of the Motorcycle bearing Registration No.TN-39-M-9753 owned by

the 4th respondent drove the same from opposite direction in a rash and

negligent manner, without adhering the traffic regulations and dashed against

the deceased and caused the accident. In the accident, the deceased sustained

fatal injuries. The accident occurred only due to rash and negligent riding of

Motorcycle owned by the 4th respondent. Hence, the respondents 1 to 3 filed

the claim petition claiming compensation against the 4th respondent as owner

and appellant as insurer of the offending vehicle respectively.

4.The 4th respondent, owner of the Motorcycle, remained exparte before

the Tribunal.

5.The appellant-Insurance Company, filed counter statement and

denied all the averments made by the respondents 1 to 3 in the claim petition.

According to the appellant, the accident did not occur due to negligent riding

of Motorcycle owned by the 4th respondent. The appellant contended that at

the time of accident, the Motorcycle owned by the 4th respondent was not

insured with the appellant and the rider of the Motorcycle did not possess

valid driving license or endorsement to ride the said vehicle. Hence, the

appellant is not liable to indemnify the 4th respondent and pay compensation

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to the respondents 1 to 3 and prayed for dismissal of the claim petition against

the appellant.

6.Before the Tribunal, the 1st respondent examined herself as P.W.1,

examined one Ramamoorthy and Palanisami as P.W.2 and P.W.3 respectively

and marked 7 documents as Exs.P1 to P7. The appellant did not let in any

oral and documentary evidence.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent riding of

Motorcycle owned by the 4th respondent and directed the appellant as insurer

of the said vehicle to pay a sum of Rs.14,86,000/- as compensation to the

respondents 1 to 3.

8.Against the said award dated 29.02.2012 made in M.C.O.P.No.1318

of 2010, the appellant - Insurance Company has come out with the present

appeal.

9.The learned counsel appearing for the appellant-Insurance Company

contended that the Tribunal erred in holding that the accident occurred only

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due to rash and negligent riding by rider of the Motorcycle owned by the 4th

respondent. The Tribunal ought to have considered the fact that the deceased

who was riding a Two Wheeler at the time of accident also contributed

negligence to the accident. The Tribunal without considering the failure on the

part of the respondents 1 to 3 to prove the agricultural income earned by the

deceased, erred in fixing a sum of Rs.15,000/- per month as notional income.

The deceased was aged 57 years at the time of accident, as per Exs.P3 and

P4. The Tribunal erroneously fixed the age of the deceased as 52 years,

instead of 57 years and wrongly applied the multiplier '11'. The correct

multiplier applicable is '8'. In any event, the Tribunal ought not to have fixed

the entire negligence on the part of the rider of the Motorcycle owned by the

4th respondent and liability on the appellant and prayed for setting aside the

award of the Tribunal.

10.Per contra, the learned counsel appearing for the respondents 1 to 3

contended that the Tribunal considering all the materials on record in proper

perspective, rightly held that the accident occurred only due to rash and

negligent riding by rider of the Motorcycle owned by the 4th respondent. The

Tribunal considered the documents filed by the respondents 1 to 3 to prove

the avocation and income of the deceased and fixed a sum of Rs.15,000/- per

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month as notional income, which is not excessive. The deceased was aged 57

years at the time of accident. The Tribunal did not grant any enhancement

towards future prospects of the deceased, while awarding compensation

towards loss of dependency. In any event, the total compensation awarded by

the Tribunal is meagre and prayed for dismissal of the Civil Miscellaneous

Appeal.

11.The 4th respondent, owner of the Motorcycle, remained exparte

before the Tribunal and notice to the 4th respondent is dispensed with.

12.Heard the learned counsel appearing for the appellant-Insurance

Company as well as the respondents 1 to 3 and perused the materials

available on record.

13.From the materials on record, it is seen that it is the case of the

respondents 1 to 3 that on the date of accident, when the deceased was riding

a Two Wheeler in the Rayampalayam near Thanneerpandhal, Avinashi, the

rider of the Motorcycle owned by the 4th respondent drove the same from

opposite direction, in a rash and negligent manner and dashed against the

deceased and caused the accident. To substantiate the same, the 1st respondent

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examined herself as P.W.1 and examined one Ramamoorthy as P.W.2, whose

evidence corroborated with the evidence of P.W.1. The 1 st respondent, as

P.W.1, deposed that the accident occurred only due to rash and negligent

riding by rider of the Motorcycle owned by the 4th respondent. It is the case of

the appellant that accident did not occur due to the negligence of the rider of

the Motorcycle. It is the further case of the appellant that the rider of the

Motorcycle owned by the 4th respondent did not possess driving license to ride

the Motorcycle at the time of accident. The appellant did not examine any eye-

witness to prove their case and to disprove the evidence of P.W.1. The

Tribunal considering the FIR registered against the rider of the Motorcycle

owned by the 4th respondent, which is marked as Ex.P1 and evidence of

P.W.1 and P.W.2, in the absence of any oral or documentary evidence on the

part of the appellant as well as the 4th respondent, held that the accident

occurred only due to rash and negligent riding by rider of Motorcycle owned

by the 4th respondent. There is no error in fixing the negligence on the rider of

the Motorcycle and liability on the appellant, as insurer of the Motorcycle.

14.As far as the quantum of compensation is concerned, the

respondents 1 to 3 claimed that the deceased was doing Milk vending

business as well as agricultural work and was earning a sum of Rs.2,00,000/-

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per annum and produced Ex.P5 to show that the deceased was supplying milk

to Hudson Agro Product Limited, Salem and Exs.P6 and P7, the certificate

issued by Village Administrative Officer. The respondents 1 to 3 have not

denied the contention of the learned counsel appearing for the appellant-

Insurance Company that they are cultivating the land and are getting

agricultural income after death of the deceased. The Tribunal, relying on

Exs.P5 and P6, held that the deceased was doing Milk Vending business and

was cultivating the land and he would have earned Rs.4,000/- through milk

vending business and Rs.11,000/- through agricultural income and fixed a

sum of Rs.15,000/- as monthly income of the deceased. The said reasoning of

the Tribunal is erroneous. The Village Administrative Officer is not an

authority to issue certificate with regard to income. The respondents 1 to 3

have not denied that they are cultivating the land and getting income. Hence,

the monthly income fixed by the Tribunal at Rs.15,000/- is excessive. The

accident is of the year 2010. Considering the year of accident and nature of

work done by the deceased, a sum of Rs.10,000/- is fixed as his monthly

income. The Tribunal fixed the age of the deceased as 52 years, relying on the

post mortem report, which is marked as Ex.P2. On a perusal of Ex.P2, it is

seen that the deceased was aged 57 years at the time of accident. The

Tribunal, erroneously fixed the age of the deceased at 52 years. The same is

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set aside and the age of the deceased is fixed as 57 years. The Tribunal failed

to grant any enhancement towards future prospects. As per the judgment of

the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National

Insurance Co. Ltd., Vs. Pranay Sethi and others], the respondents 1 to 3 are

entitled to 10% enhancement towards future prospects. The Tribunal applied

the multiplier '11'. As per the judgment of the Hon'ble Apex Court reported in

2009 (2) TNMAC 1 SC Supreme Court [Sarla Verma & others vs. Delhi

Transport Corporation & another], the correct multiplier applicable is '9'.

There are three dependents of the deceased. Hence, by fixing the monthly

income at Rs.10,000/-, granting 10% enhancement towards future prospects,

applying multiplier '9' and after deducting 1/3rd towards personal expenses of

the deceased, the amounts granted by the Tribunal towards loss of

dependency is modified to Rs.7,92,000/- {[Rs.10,000/- + Rs.1,000/- (10% of

Rs.10,000/-)] x 12 x 9 x 2/3}. The amounts awarded by the Tribunal under

other heads are just and reasonable and hence, the same are hereby

confirmed. Thus, the compensation awarded by the Tribunal is modified as

follows:

S. No Description Amount awarded Amount Award by Tribunal awarded by confirmed or (Rs) this Court (Rs) enhanced or

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granted