Madras High Court
The Branch Manager vs Unnamalai on 21 June, 2022
C.M.A.No.2696 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.2696 of 2021
and C.M.P.No.15481 of 2021
The Branch Manager
The New India Assurance Company Limited
Krishnagiri – 635 001. ... Appellant
Vs.
1.Unnamalai
2.Murugamma
3.C.Sadiq Basha ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 07.11.2020 made
in M.C.O.P.No.209 of 2019 on the file of Motor Accident Claims Tribunal,
Special District Court, Krishnagiri.
1/16
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C.M.A.No.2696 of 2021
For Appellant : Mr.K.Vinod
For R1 and R2 : Mr.SP.Yuaraj
For R3 : No appearance
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI,J.)
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the judgment and decree dated
07.11.2020 made in M.C.O.P.No.209 of 2019 on the file of Motor Accident
Claims Tribunal, Special District Court, Krishnagiri.
2.The appellant/Insurance Company is the 2nd respondent in
M.C.O.P.No.209 of 2019 on the file of Motor Accident Claims Tribunal,
Special District Court, Krishnagiri. The respondents 1 and 2 filed the said
claim petition claiming a sum of Rs.50,00,000/- as compensation for the
death of one C.Mariyappan, who died in the accident that took place on
26.08.2016.
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C.M.A.No.2696 of 2021
3.According to the respondents 1 and 2, on the date of accident i.e., on
26.08.2016 at about 19.50 hours, while the deceased Mariyappan was riding
in his TVS star city motorcycle bearing Registration No.TN 70 H 8734 in
Kelamangalam to Denkanikottai Road towards Peramandapatti i.e., from
North to South direction, on the left hand side of the road, near Rajalakshmi
Theatre and Pappannam Coconut mandy, the driver of the lorry belonging to
the 3rd respondent bearing Registration No.TN 24 AE 5252, who was coming
from coconut mandy, suddenly entered into the main road, drove the same in
a rash and negligent manner, dashed against the motorcycle driven by the
said Mariyappan on the left hand side and caused the accident. In the
accident, the deceased Mariyappan sustained injuries and in spite of treatment
given, he died in the hospital. Therefore, the respondents 1 and 2, mother and
sister of the deceased Mariyappan filed the above claim petition claiming
compensation for his death against the 3rd respondent, owner of the lorry and
appellant/Insurance Company, insurer of the said lorry.
4.The 3rd respondent, owner of the lorry filed counter statement and
denied the averments made in the claim petition and stated that driver of the
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C.M.A.No.2696 of 2021
lorry belonging to the 3rd respondent drove the same with due care and
caution. The deceased Mariyappan alone rode the motorcycle without
observing the rules, proceeded before the lorry and invited the accident. The
deceased Mariyappan did not possess valid driving license at the time of
accident. The driver of the lorry possessed valid driving license at the time of
accident and therefore, the appellant/Insurance Company is liable to
indemnify the 3rd respondent as the lorry is insured with them. In any event,
the compensation claimed by the respondents 1 and 2 is excessive and prayed
for dismissal of the claim petition.
5.The appellant/Insurance Company filed counter statement denying
the averments made in the claim petition and stated that the driver of the lorry
belonging to the 3rd respondent does not possess valid driving license to
drive the vehicle, valid Fitness Certificate and Permit at the time of accident.
The deceased Mariyappan, knowing fully well that the lorry was already
proceeding before him in the main road, rode the motorcycle in a rash and
negligent manner and invited the accident. The deceased did not wear helmet
at the time of accident, which is in violation of policy condition and
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C.M.A.No.2696 of 2021
contributory negligence has to be fixed on the deceased. The
appellant/Insurance Company has also denied the age, avocation and income
of the deceased. In any event, the compensation claimed by the respondents 1
and 2 is excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent, mother of the deceased,
examined herself as P.W.1, one Gowran, eye-witness to the accident was
examined as P.W.2 and one Muthu, Proprietor, Shri Amman Engineering
Works, employer of the deceased, was examined as P.W.3 and 13 documents
were marked as Exs.P1 to P13. The appellant/Insurance Company 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 driving
by the driver of the lorry belonging to the 3rd respondent, fixed 90%
negligence on the part of driver of the lorry and 10% contributory negligence
on the part of deceased, as he did not possess valid driving license at the time
of accident, arrived at a sum of Rs.40,21,200/- as compensation to the
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C.M.A.No.2696 of 2021
respondents 1 & 2 and directed the appellant/Insurance Company being
insurer of the said lorry to pay a sum of Rs.36,19,080/- being 90% of the
award amount as compensation to the respondents 1 and 2.
8.Against the said award dated 07.11.2020 made in M.C.O.P.No.209 of
2019, the appellant/Insurance Company has come out with the present appeal.
9.The learned counsel appearing for the appellant/Insurance Company
contended that the deceased Mariyappan, knowing fully well that the Lorry
was already proceeding before him in the main road, rode the motorcycle in a
rash and negligent manner and invited the accident. The Tribunal ought to
have fixed entire negligence on the deceased. The Tribunal failed to
appreciate that the deceased did not wear helmet and did not possess valid
driving license at the time of accident and erred in fixing only 10%
negligence on the part of the deceased. The deceased died due to head injury.
He did not wear helmet at the time of accident. Had the deceased used helmet
while riding the motorcycle, it would have reduced the impact of the accident.
The learned counsel further contended that except marking of Ex.P3/salary
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C.M.A.No.2696 of 2021
certificate of the deceased, the respondents 1 and 2 did not file any
documents to prove the avocation and income of the deceased. In the absence
of any valid documents such as attendance register, wage register or bank
statement, with regard to avocation and income of the deceased, the monthly
income of Rs.19,500/- fixed by the Tribunal is excessive. The deceased died
as a bachelor and the Tribunal ought to have deducted 50% instead of 1/3 rd
towards personal expenses. The amounts awarded by the Tribunal under
different heads are excessive and prayed for setting aside the award of the
Tribunal.
10.In support of his contentions, the learned counsel appearing for the
appellant relied on the judgment reported in 2021 (2) TNMAC 681
[Panneerselvam @ Panneer and another vs. Two Distribution and
another), wherein it has been held as follows:
“14. .. .. We also conclude that in the given
circumstance, the extent of contribution of the Driver of the
Car appears to be less. At the same time, major portion of
the contribution to the accident is on the part of the
deceased. This is more so that the deceased did not wear
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C.M.A.No.2696 of 2021
helmet at the time of accident. Further, on the date of
accident, the deceased was a minor and not in possession of
a Driving License to drive the Two-wheeler. Therefore, it is
appropriate to fix 25% liability of the part of the Driver of
the Car and 75% on the part of the deceased himself. ”
11.Per contra, the learned counsel appearing for the respondents 1 and
2 contended that the accident has occurred only due to rash and negligent
driving by the driver of the lorry belonging to the 3 rd respondent. The
respondents 1 and 2 examined the eye-witness to the accident as P.W.2 and
marked the F.I.R., which was registered against the driver of the lorry as
Ex.P1 and proved the negligence on the part of the driver of lorry. The
learned counsel further contended that the deceased was working as Welder
in Shri Amman Engineering Works, Hosur and also was doing flower
business and was earning a sum of Rs.25,000/- per month. The respondents 1
and 2 examined the Proprietor of the deceased company as P.W.3, marked the
salary certificate as Ex.P3 and proved the avocation and income of the
deceased. The total compensation awarded by the Tribunal is not excessive
and prayed for dismissal of the appeal.
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C.M.A.No.2696 of 2021
12.Though notice has been served on the 3rd respondent and his name
is printed in the cause list, there is no representation for him either in person
or through counsel.
13.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondents 1 and 2 and perused the entire
materials on record.
14.It is the case of the respondents 1 and 2 that the deceased
Mariyappan was riding his two wheeler on the left hand side of the road, at
that time, the driver of the lorry belonging to the 1st respondent drove the
same in a rash and negligent manner, suddenly entered into the main road,
dashed against the motorcycle on its left side and caused the accident. In the
accident, said Mariappan sustained injuries and died. To substantiate their
contention, the 1st respondent examined herself as P.W.1 and one Gowran,
eye-witness to the accident, was examined as P.W.2 and marked F.I.R., which
was registered against the driver of the lorry as Ex.P1. P.W.2 deposed that
accident has occurred only due to rash and negligent driving by the driver of
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C.M.A.No.2696 of 2021
the lorry belonging to the 3rd respondent. On the other hand, it is the case of
the appellant/Insurance Company that driver of the lorry was not negligent
and not responsible for the accident. The deceased alone rode the motorcycle
in a rash and negligent manner, dashed on the lorry and invited the accident.
At the time of accident, the deceased did not wear helmet and did not possess
valid driving license and entire negligence has to be fixed on the deceased.
The appellant has not let in any evidence or mark any document to
substantiate their case. They have not given any complaint against the
deceased. The Tribunal considering Ex.P1 and uncontroverted evidence of
P.W.2, held that the accident occurred due to rash and negligent driving by the
driver of the lorry. Further, it is the case of the appellant that deceased was
not having driving license and did not wear helmet at the time of accident.
The respondents 1 and 2 did not deny that deceased was not wearing helmet
at the time of accident. The Tribunal considering the fact that deceased did
not possess driving license at the time of accident, fixed 10% contributory
negligence on the deceased. Contributory negligence cannot be fixed on the
part of the deceased for not possessing driving license alone. It must be
proved by acceptable evidence that the deceased or injured person
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contributed to the accident. On the failure of the appellant to prove that
deceased was also negligent and responsible for the accident, 10%
contributory negligence fixed on the deceased for not possessing driving
license on the deceased is set aside. At the same time, it is the statutory duty
on the part of the rider of two wheeler to wear helmet in order to avoid
serious head injury, which in most cases result in death of rider or pillion
rider of the motorcycle. The Tribunal held that accident occurred due to
negligence of lorry driver. Having held so, fixed 10% negligence on the
deceased for not possessing driving license. We have set aside that portion of
the award. In view of not wearing helmet by the deceased at the time of
accident, 10% contributory negligence is fixed on the deceased. The award of
the Tribunal fixing 90% of the liability on the appellant and directing the
appellant to pay 90% of the award amount is not interfered with.
15.As far as quantum of compensation is concerned, it is the case of the
respondents 1 and 2 that deceased was aged 23 years at the time of accident,
he was working as Welder in Shri Amman Engineering Works at Hosur and
was also helping his mother in flower vending business as part time job and
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C.M.A.No.2696 of 2021
was earning a sum of Rs.25,000/- per month. To substantiate their case, the
appellant examined one Muthu, Proprietor of Shri Amman Engineering
Works at Hosur as P.W.3 and marked Ex.P3/salary certificate. P.W.3 deposed
that the deceased was working as Welder in his workshop and was paid
Rs.650/- per day. P.W.3 did not produce any document to show that deceased
was working in his workshop in all 30 days or 25 days in a month. The
deceased was only a daily wager and being a welder, he would not have
worked in all 30 days or 25 days in a month. The Tribunal taking into
consideration Ex.P3/salary certificate, fixed a sum of Rs.19,500/- (Rs.650/- X
30) as monthly income of the deceased. In the interest of justice, we are of the
considered opinion that monthly income fixed by the Tribunal is excessive
and it would be just and proper to hold that the deceased would have worked
for 20 days in a month and earned Rs.650/- for 20 days i.e. Rs.13,000/- per
month (Rs.650/- X 20). The deceased was aged 23 years at the time of
accident as per Ex.P2/Post-mortem certificate. The Tribunal, following the
judgments of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609
(SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others] and 2009
(2) TNMAC 1 SC (Sarla Verma and others vs. Delhi Transport
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C.M.A.No.2696 of 2021
Corporation and another), has rightly granted 40% enhancement towards
future prospects and applied multiplier '18'. The deceased died as a bachelor
at the time of accident. The Tribunal erroneously deducted 1/3rd towards
personal expenses. As per the judgment of the Hon'ble Apex Court reported
in 2009 (2) TNMAC 1 SC cited supra, the Tribunal ought to have deducted
50% towards personal expenses. By fixing Rs.13,000/- per month as notional
income of the deceased and deducting 50% towards personal expenses, the
amount awarded by the Tribunal towards loss of dependancy is modified to
Rs.19,65,600/- (Rs.13,000/- + 5200 (Rs.13,000/- X 40%) X 12 X 18 X
1/2). The amounts awarded by the Tribunal under all 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 Amount Award
awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of 39,31,200 19,65,600 Reduced
dependency
2. Loss of estate 15,000 15,000 Confirmed
3. Funeral 15,000 15,000 Confirmed
expenses
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C.M.A.No.2696 of 2021
4. Parental 40,000 40,000 Confirmed
consortium to
the 1st
respondent
5. Loss of love and 20,000 20,000 Confirmed
affection to the
2nd respondent
Total 40,21,200 20,55,600 Reduced by
Rs.17,69,040/
90% of the 36,19,080 18,50,040 -
award amount
16.With the above modification, the Civil Miscellaneous Appeal is
partly allowed. The compensation of Rs.36,19,080/- granted by the Tribunal
is hereby reduced to Rs.18,50,040/- together with interest at the rate of 7.5%
per annum (excluding the default period, if any) from the date of petition till
the date of deposit. The appellant/Insurance Company is directed to deposit
the award amount now determined by this Court along with interest and costs,
less the amount already deposited if any, within a period of six weeks from
the date of receipt of a copy of this judgment. On such deposit, the
respondents 1 and 2 are permitted to withdraw their respective share of the
award amount, as per the apportionment fixed by the Tribunal, along with
proportionate interest and costs, after adjusting the amount if any, already
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C.M.A.No.2696 of 2021
withdrawn. The appellant/Insurance Company is permitted to withdraw the
excess amount lying in the deposit to the credit of M.C.O.P.No.209 of 2019
on the file of Motor Accident Claims Tribunal, Special District Court,
Krishnagiri, if the entire award amount has already been deposited by them.
Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (S.S., J)
21.06.2022
Index : Yes / No
kj
To
1.The Special District Judge
Motor Accident Claims Tribunal
Krishnagiri.
2.The Section Officer
VR Section
High Court
Madras.
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C.M.A.No.2696 of 2021
V.M.VELUMANI,J.
and
S.SOUNTHAR,J.
kj
C.M.A.No.2696 of 2021
and C.M.P.No.15481 of 2021
21.06.2022
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