Madras High Court
The Divisional Manager vs Manimala on 21 January, 2022
C.M.A.No.1373 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1373 of 2015
and
M.P.No.1 of 2015 & C.M.P.No.4657 of 2016
The Divisional Manager,
United India Insurance Company Limited,
T.K.M. Complex, Katpadi Road,
Vellore. .. Appellant
Vs.
1.Manimala
2.Minor. Banupriya
3.Minor. Sabarinathan
(Minor respondents 2 & 3 represented
by their Mother/Guardian, Manimala, 1st
respondent herein)
4.Samburanam Ammal
5.Kirubanandam .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
18.08.2014 made in M.C.O.P.No.203 of 2012 on the file of the Motor
Accidents Claims Tribunal, I Additional District and Sessions Court, Vellore.
1/12
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C.M.A.No.1373 of 2015
For Appellant : Mr.S.Arunkumar
For RR 1 to 4 : Mr.M.Sivakumar
for Mr.C.Prabakaran
For R5 : Mr.B.Sundara Pandiyan
JUDGMENT
(The matter is heard through “Video Conferencing”)
This Civil Miscellaneous Appeal has been filed against the award dated
18.08.2014 made in M.C.O.P.No.203 of 2012 on the file of the Motor
Accidents Claims Tribunal, I Additional District and Sessions Court, Vellore.
2.The appellant is the 2nd respondent in M.C.O.P.No.203 of 2012 on
the file of the Motor Accidents Claims Tribunal, I Additional District and
Sessions Court, Vellore. The respondents 1 to 4 filed the said claim petition
claiming a sum of Rs.25,00,000/- as compensation for the death of one
Nithyanandham, who died in the accident that took place on 12.10.2010.
3.According to respondents 1 to 4, on 12.10.2010 at about 03.30 A.M.,
while the deceased Nithyanandham was travelling as Pori (Puffed Rice) goods
owner in the lorry bearing Registration No.TNM 8645 from Bangalore to
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C.M.A.No.1373 of 2015
Chennai near Chitary medu, the driver of the lorry drove the same in a rash
and negligent manner and dashed on the backside of the bus bearing
Registration No.TN 29 N 1981 and caused the accident. In the accident, the
said Nithyanandham sustained fatal injuries and died on the spot. Therefore,
the respondents 1 to 4, filed the above said claim petition claiming a sum of
Rs.25,00,000/- as compensation against the 5th respondent and appellant-
Insurance Company, being the owner and insurer of the lorry respectively.
4.The 5th respondent - owner of the lorry remained exparte before the
Tribunal.
5.The appellant-Insurance Company, being the insurer of the lorry
belonging to 5th respondent filed counter statement and denied all the
averments made by the respondents 1 to 4. The appellant denied the manner
of accident as alleged by the respondents 1 to 4. The appellant has stated that
the deceased was not at all a business man and he neither carried any goods
nor engaged the said lorry of the 5th respondent from Dharmapuri. The driver
of the lorry only permitted the deceased Nithyanandham to travel in the goods
vehicle as against the policy conditions. Therefore, the deceased traveled in
the lorry as gratuitous passenger at the time of accident. The lorry belonging
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C.M.A.No.1373 of 2015
to 5th respondent was loaded with Pori (Puffed Rice) from Dharmapuri to
Chennai and the 5th respondent alone is the competent person to produce the
trip sheet to show that on the date of accident for which purpose the lorry was
used. Therefore, for violation of policy conditions by the 5 th respondent and
driver of the lorry, the appellant is not liable to pay any compensation to the
respondents 1 to 4. On the date of accident, the lorry belonging to 5 th
respondent was not having valid Registration Certificate, Permit, Insurance
Policy and the driver of the lorry was not possessing valid driving licence. The
deceased is not entitled to travel in the goods vehicle and he was not covered
under the policy. As per the F.I.R., the deceased was a Tailor by profession,
but the respondents 1 to 4 took a stand in the claim petition that the deceased
was Business Man only for the purpose of filing claim petition. Therefore,
only the 5th respondent as well as the Tamil Nadu State Transport Corporation
are jointly and severally liable to pay the compensation to the respondents 1 to
4. In any event, the quantum of compensation claimed by the respondents 1 to
4 are highly excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1,
one Srinivasan, eyewitness to the accident was examined as P.W.2 and one
Vilvanathan, who sold the puffed rice to deceased was examined as P.W.3
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C.M.A.No.1373 of 2015
and nine documents were marked as Exs.P1 to P9. The appellant-Insurance
Company examined one Kumar as R.W.1 and four documents were marked
as Exs.R1 to R4.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred only due to rash and negligent
driving by the driver of the lorry belonging to 5th respondent and directed the
5th respondent as well as appellant-Insurance Company to jointly and severally
pay a sum of Rs.9,41,100/- as compensation to respondents 1 to 4.
8.To set aside the said award dated 18.08.2014 made in
M.C.O.P.No.203 of 2012, the appellant-Insurance Company has come out
with the present appeal.
9.The learned counsel appearing for the appellant contended that the
deceased traveled in the goods vehicle as unauthorized passenger and hence,
the appellant is not liable to pay any compensation to the respondents 1 to 4.
The Tribunal erred in assuming that the deceased travelled along with his
goods, based on the evidence of P.W.3 and created Bill, which was marked as
Ex.P9. The Tribunal ought to have accepted the evidence of R.W.1 and
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C.M.A.No.1373 of 2015
Exs.R1 & R2 and dismissed the claim petition as against the appellant. The
Tribunal has awarded a sum of Rs.9,41,100/- as compensation to the
respondents 1 to 4, which is highly excessive and prayed for setting aside the
award passed by the Tribunal.
10.The learned counsel appearing for the respondents 1 to 4 and 5 th
respondent separately made their submissions in support of the award passed
by the Tribunal and prayed for dismissal of appeal.
11.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondents 1 to 4 and the learned counsel
appearing for the 5th respondent and perused the entire materials on record.
12.From the materials available on record, it is seen that it is the case of
the respondents 1 to 4 that on 12.10.2010 at about 03.30 A.M., while one
Nithyanandham, husband of 1st respondent, father of respondents 2 & 3 and
son of 4th respondent was travelling as Pori (Puffed Rice) goods owner in the
lorry bearing Registration No.TNM 8645 belonging to 5th respondent and
insured with appellant from Bangalore to Chennai, near Chitary medu, the
driver of the lorry drove the same in a rash and negligent manner and dashed
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C.M.A.No.1373 of 2015
on the backside of the bus bearing Registration No.TN 29 N 1981 and caused
the accident. In the accident, the said Nithyanandham sustained fatal injuries
and died on the spot. Therefore, the respondents 1 to 4 filed the above said
claim petition claiming a sum of Rs.25,00,000/- as compensation for the death
of the said Nithyanandham against the 5th respondent and appellant, being the
owner and insurer of the lorry respectively. To substantiate their case, the 1st
respondent examined herself as P.W.1, one Srinivasan, eyewitness to the
accident was examined as P.W.2 and one Vilvanathan, who sold Pori (Puffed
Rice) bags to the deceased was examined as P.W.3. The respondents 1 to 4
marked F.I.R., which was registered against the driver of the lorry as Ex.P1
and Ex.P9/receipt dated 11.10.2010 issued by P.W.3 for having sold Puffed
Rice to the deceased Nithyanandham.
13.On the other hand, it is the case of the appellant that accident did
not occur due to the negligence on the part of the driver of the lorry belonging
to 5th respondent. But, the accident has occurred due to the negligent parking
of the driver of the State Transport Corporation Bus without any signal. The
deceased traveled in the goods vehicle as unauthorized passenger and hence,
the appellant is not liable to pay any compensation. The appellant has not
examined any eyewitness to substantiate their case. They examined one
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C.M.A.No.1373 of 2015
Kumar as R.W.1, who is an official of the appellant and he is not an
eyewitness to the accident. The Tribunal considering the evidence of P.W.2
and Ex.P1/F.I.R., held that accident occurred only due to rash and negligent
driving by the driver of the lorry belonging to 5th respondent. There is no error
in the said finding of the Tribunal.
14.Further, P.W.3 deposed that he sold Puffed Rice to the deceased
Nithyanandham and produced Ex.P9/receipt dated 11.10.2010 for having sold
the Puffed Rice to the deceased. Considering the evidence of P.W.3 and other
documents filed by the respondents 1 to 4, the Tribunal held that the deceased
traveled along with Pori (Puffed Rice) bags as owner of the goods. The
appellant has not let in any contra evidence to disprove the evidence of P.W.2
& P.W.3. The Tribunal considering the evidence of P.W.3 and contents of
Ex.P9, held that the deceased traveled along with his goods as owner and
hence, the 5th respondent as well as appellant are jointly and severally liable to
pay the compensation to the respondents 1 to 4. There is no error in the award
of the Tribunal warranting interference by this Court.
15.As far as quantum of compensation is concerned, the respondents 1
to 4 claimed that the deceased was aged 38 years, doing Pori (Puffed Rice)
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C.M.A.No.1373 of 2015
Business and was earning a sum of Rs.15,000/- per month. They have not
filed any document to substantiate the income. In the absence of any material
evidence with regard to income of the deceased, the Tribunal fixed a sum of
Rs.4,500/- per month as notional income of the deceased. The accident is of
the year 2010 and the monthly income fixed by the Tribunal is meagre. As per
Ex.P2/postmortem certificate, the deceased was aged 40 years at the time of
accident. The Tribunal has granted only 30% enhancement towards future
prospects. The respondents 1 to 4 are entitled to 40% enhancement towards
future prospects as per the judgment of the Hon'ble Apex Court reported in
2017 (2) TNMAC 609 (SC), [National Insurance Company Limited Vs.
Pranay Sethi and others]. In view of the above, the excessive amount
awarded by the Tribunal towards loss of love and affection is not interfered
with.
16.For the above reason, this Civil Miscellaneous Appeal is dismissed
and a sum of Rs.9,41,100/- awarded by the Tribunal as compensation to the
respondents 1 to 4, along with interest and costs is confirmed. The 5th
respondent as well as the appellant-Insurance Company are jointly and
severally directed to deposit the award amount along with interest and costs,
less the amount if any already deposited, within a period of six weeks from
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C.M.A.No.1373 of 2015
the date of receipt of a copy of this judgment to the credit of M.C.O.P.No.203
of 2012 on the file of the Motor Accidents Claims Tribunal, I Additional
District and Sessions Court, Vellore. On such deposit, the respondents 1 and
4 are permitted to withdraw their respective share of the award amount 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. The share of the minor
respondents 2 & 3 are directed to be deposited in any one of the Nationalized
Banks, till the minor respondents 2 & 3 attain majority. On such deposit, the
1st respondent, being the Mother of the minor respondents 2 & 3 is permitted
to withdraw the accrued interest once in three months for the welfare of the
minor respondents 2 & 3. Consequently, the connected Miscellaneous
Petitions are closed No costs.
21.01.2022
krk
Index : Yes / No
Internet : Yes / No
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C.M.A.No.1373 of 2015
To
1.The learned I Additional District and Sessions Judge,
Motor Accidents Claims Tribunal,
Vellore.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
krk
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C.M.A.No.1373 of 2015
C.M.A.No.1373 of 2015
21.01.2022
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