Madras High Court
The Branch Manager vs Angalaeswari on 7 January, 2022
C.M.A.(MD) No.870 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A(MD)No.870 of 2021
and
C.M.P(MD)No.8159 of 2021
The Branch Manager,
Reliance General Insurance Company Limited,
Door No.55, 80 Feet Road,
Sree Meenakshmi Plazza,
Anna Nagar,
Madurai Town, Madurai. ... Appellant/Respondent
.Vs.
1.Angalaeswari
2.Umadevi
3.Sivaganesh
4.Minor Kirshnaraj
S.Palanisamy (Died)
5.P.Arumugammal
6.Santhanamoorthi
7.Meena
1/10
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C.M.A.(MD) No.870 of 2021
8.Saraswathi
9.Naganathan
(Minor 4th respondent through his mother
and natural guardian first respondent)
(Respondents 7 to 10 are impleaded as
Legal heirs of the deceased 5th respondent as
per order in I.A.No.1/2019, dated 13.09.2019
and amended order in I.A.No.2/2019
dated 13.12.2019) ... Respondents Nos.1 to 9/
Petitioners
10.Alagu Ramanujam ... Respondent No.10/
Respondents No.1
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 praying this Court to set aside the judgment and decree,
dated 25.01.2021 passed in M.C.O.P.No.52 of 2017, on the file of the Motor
Accident Claims Tribunal(Subordinate Judge), Aruppukottai.
For Appellant : Mr.V.Sakthivel
For R1 to R5 & R9 : Mr.G.Mariappan
For R6,R7,R8 & R10 : No appearance
2/10
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.870 of 2021
JUDGMENT
Judgment of the Court was made by DR.G.JAYACHANDRAN,J.
This Civil Miscellaneous Appeal has been preferred by the Insurance
Company challenging the quantum of award passed by the Tribunal as
compensation to the dependents of the deceased Karuppasamy.
2. The brief facts of the case is that on 19.08.2017 at about 02.00
p.m., near Aruppukottai-Sayalgudi Road, near Mandapasalai Petrol Bunk,
while the deceased Karuppasamy was riding his vehicle bearing
Registration No.TN-67-AH-8833 and his brother Naganathan along with his
relative in another two-wheeler bearing Registration No.TN-AE-2598
returning home after their job, a van bearing Registration No.TN-22-
K-8842 driven by its driver Nagaraj, owned by the 10th respondent herein,
who is the first respondent in the claim petition, rash and negligently
ahead of two two-wheelers stopped without any signal and therefore, the
said Karuppasamy had driven his two-wheeler and dashed behind the van
and sustained serious head injury. His brother who was following him in
another two-wheeler, took him to a private hospital. The injured was
referred to Arupukkottai Government Hospital for further treatment and on
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C.M.A.(MD) No.870 of 2021
reference, he was shifted to Velammal Hospital, Madurai. However, his
health got further deteriorated, hence he was referred to the Government
Rajaji Hospital, Madurai. Inspite of taking treatment at various hospitals,
he succumbed to the injury on 21.08.2017 at about 09.30 p.m. The claim
petition against the Van owner and its insurer was filed by the wife, four
children and mother of the deceased alleging that the accident had
occurred due to the negligence on the part of the Van driver. The Van being
insured with the second respondent/the appellant herein, is liable to
compensate. Since, at the time of accidental death, the deceased was aged
about 43 years, earning Rs.60,000/- per month. Due to his sudden demise,
they have lost their moral and economical dependency, compensation of Rs.
40,00,000/- was sought.
3. The Insurance Company filed a counter affidavit stating that the
accident took place only due to the negligence on the part of the deceased,
who had no driving licence and also he was not wearing helmet, which is
mandatory. Further, there is no sufficient proof for the income.
4. The Tribunal, after considering the oral evidence let in by the
claimants and the 30 documents marked as exhibits, held that the
claimants are the dependents of the deceased Karuppasamy. At the time of
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C.M.A.(MD) No.870 of 2021
his death, the deceased Karuppasamy was running a Welding shop and
being a skilled worker his notional income was fixed at Rs.12,500/- per
month. After adding 25% towards furture prospects, following the decision
in 2009(2)TN MAC 1 (SC) Sarla Verma v. Delhi Transport
Corporation and 2017(2) TNMAC 609 (SC) [National Insurance Co.
Ltd., v. Pranay Sethi], the Tribunal has awarded a sum of Rs.19,68,750/-
towards loss of dependency after the standard deduction and awarding
compensation under other non-conventional heads such as loss of estate,
funeral expenses and loss of consortium as prescribed by the Supreme
Court under 2017(2) TNMAC 609 (SC) [National Insurance Co. Ltd.,
v. Pranay Sethi], a total sum of Rs.21,58,750/- was awarded.
5. The Tribunal has directed to apportion the awarded amount as
below:- In respect of the first petitioner/wife Rs.10,00,000/-, in respect
of the petitioners 2 to 4 Rs.3,50,000/- each and in respect of fifth petitioner
Rs.1,08,750/-.
6. Being aggrieved by the quantum of award and the fixation of entire
negligence on the part of the insured vehicle driver, the present appeal has
been filed by the Insurance Company.
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C.M.A.(MD) No.870 of 2021
7. This Court heard the learned counsel appearing for the appellant
and the respondents.
8. On a perusal of the records, this Court finds that as far as the
negligence is concerned, though it was canvassed by the counsel for the
appellant that the deceased had not maintained 10 ft. distance between the
vehicle going ahead, which is prescribed under the Motor Vehicles Rules
and he was not wearing helmet and if he had followed these two rules
scrupulously, he would have avoid the accident and escaped from death.
9. Referring the Postmortem certificate, the learned counsel for the
appellant would submit that the cause of the death as found in the post-
mortem certificate indicates that he sustained 2x1 cm abrasion in the
middle of his fore-head. Subscalpal contusion measuring 16 cm x 10 cm
noted over left fronto parieto temporal occipital region. Fracture vault of
skull 9cm in length noted over left parieto temporal bone. The post-
mortem Doctor has opined that the deceased would appear to have died of
multiple injuries. The fatal injury appears to be on the head. Had the
deceased wear helmet, certainly, the death could have been avoided. In
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C.M.A.(MD) No.870 of 2021
addition, it was canvassed that the deceased had no driving licence.
However, pending appeal, across the bar, the learned counsel for the
respondents 1 to 5 & 9/claimants had furnished the driving licence of the
deceased, which is valid up to 08.07.2023.
10. Therefore, this Court is of the view that except the plea that the
contributory negligence on the part of the deceased as he is not wearing
the helmet, no other point for consideration worth to interfere the award of
the Tribunal.
11. Wearing helmet is mandatory. Inspite of repeated orders of this
Court, as well as the statute it is more breached than honoured. Such
voluntary disobedience fall within the doctrine of volunti non-fit injuri. In
this case, though the deceased has contributed by his negligence, the real
sufferers are the claimants, who are dependants of the deceased.
12. This Court is of the view that for contributory negligence on the
part of the deceased 10% of the total amount has to be deducted.
Accordingly, the award of the Tribunal is interfered with and out of total
award of compensation passed by the Tribunal, 10% is deducted towards
contributory negligence. Accordingly, the award of the Tribunal is modified
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C.M.A.(MD) No.870 of 2021
from Rs.21,58,750/- to Rs.19,42,875/-.
13. The learned counsel for the appellant/Insurance Company
submitted that the award amount along with interest has already been
deposited. In view of the above, the respondents 1 to 3 & 5 & 9 are
permitted to withdraw their share in the award amount together with
proportionate accrued interest and costs, as per the ratio of apportionment
made by the Tribunal, less the amount already withdrawn, if any, by
making necessary application before the Tribunal.
14.At the time of filing claim petition, the fourth respondent/fourth
claimant Kirshnaraj, S/o.Late.Karuppasamy was about 14 years old.
Therefore, this Court while permitting the claimants to withdraw the award
amount on appropriate application, the share of the minor claimant
Kirshnaraj shall be kept in fixed deposit till he attains majority and when
he attains majority, he is entitled to withdraw his share in the award
amount along with proportionate accrued interest and costs
15.The Tribunal is directed to refund the excess amount, if any, along
with proportionate accrued interest to the Insurance Company/ the
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C.M.A.(MD) No.870 of 2021
appellant herein.
16.In view of the above, this Civil Miscellaneous Appeal is partly
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
[S.V.N.,J.] [G.J.,J.]
07.01.2022
Index : Yes / No
Internet : Yes / No
am
To
The Motor Accident Claims Tribunal,
Subordinate Court,
Aruppukottai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.870 of 2021
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
am
JUDGMENT MADE IN
C.M.A(MD)No.870 of 2021
07.01.2022
https://www.mhc.tn.gov.in/judis
