Madras High Court
The Divisional Manager vs Manimegalai on 22 June, 2022
C.M.A.No.2429 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.2429 of 2021
and
C.M.P.No.13817 of 2021
The Divisional Manager,
M/s. United India Insurance Co. Ltd,
No.4, Promenade Road, Cantonment,
Trichy – 1.
Policy No.0124063002P303197057. .. Appellant
Vs.
1.Manimegalai
(The deceased name was amended as per
Order in I.A.No.2898/2018 dated 20.11.2018)
2.P.Vijay
3.Priya
(2nd and 3rd respondents declared as major and
amended as per order in I.A.No.1/2019 &
3/2019 dated 09.07.2019)
4.Minor. Gomathi
(Minor 4th respondent rep. by her natural guardian
and next friend mother Manimegalai – R1 herein)
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C.M.A.No.2429 of 2021
5.Pushpa
6.Govindaraj
7.Mubarak Ali
8.The Divisional Manager,
The Oriental Insurance Company Ltd,
No.4 Bharathidasan Road, 2nd Floor,
Cantonment, Trichy – 1.
Policy No.453309/31/2013/6046. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
20.01.2021, made in M.C.O.P.No.609 of 2013, on the file of the Motor
Accident Claims Tribunal, Principal District Court, Perambalur.
For Appellant : Mr.D.Bhaskaran
For RR 1 to 5 : Mr.T.Gobinath
For RR 6 & 7 : No appearance
For R8 : Mr.S.Arunkumar
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.)
This Civil Miscellaneous Appeal has been filed by the appellant /
United India Insurance Company Limited against the judgment and
decree dated 20.01.2021, made in M.C.O.P.No.609 of 2013, on the file of
the Motor Accident Claims Tribunal, Principal District Court,
Perambalur.
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C.M.A.No.2429 of 2021
2.The appellant is the 2nd respondent in M.C.O.P.No.609 of 2013,
on the file of the Motor Accident Claims Tribunal, Principal District
Court, Perambalur. The respondents 1 to 5/claimants filed the said claim
petition, claiming a sum of Rs.40,00,000/- as compensation for the death
of one Chandrasekaran who died in the accident that took place on
11.05.2013.
3.According to the respondents 1 to 5, on 11.05.2013 the deceased
Chandrasekaran was travelling as Additional Driver in the lorry bearing
Registration No.TN 45 AF 1782 belonging to 7th respondent and insured
with 8th respondent on the GST Road towards Chennai. At about
08.30P.M., while the lorry was proceeding opposite to Sri Ram Hotel,
Kannapiranpuram, the driver of the lorry bearing Registration No.TN 31
E 7899 belonging to 6th respondent and insured with appellant, who was
proceeding ahead of the 7th respondent's lorry at hectic and uncontrollable
speed, without giving any caution, without blowing horn, without obeying
any traffic rules and regulations, suddenly applied brakes and stopped the
lorry on the road. Due to the said act of the driver of the lorry belonging
to 6th respondent, the right backside body of the lorry belonging to 6th
respondent was dashed on the left front side of the lorry belonging to 7 th
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C.M.A.No.2429 of 2021
respondent and caused the accident. In the accident, the said
Chandrasekaran sustained multiple grievous injuries all over the body
and immediately after the accident, he was taken to Government Hospital,
Chengalpattu, where first aid treatment was given and thereafter he was
admitted at Government Hospital, Chennai. Inspite of medical treatment,
the said Chandrasekaran succumbed to injuries on 13.05.2013. Hence,
the respondents 1 to 5 filed the claim petition against the respondents 6 to
8 and appellant.
4.The 6th respondent – owner of the lorry bearing Registration
No.TN 31 E 7899 remained exparte before the Tribunal.
5.The appellant being the insurer of the lorry belonging to 6 th
respondent filed counter statement and denied all the averments made by
the respondents 1 to 5 in the claim petition. The appellant denied the
manner of accident as alleged by the respondents 1 to 5. According to the
appellant, no driver would stop the lorry as alleged by the respondents 1
to 5. The red light signal would be automatic while applying brake of the
lorry. Had the driver of the lorry belonging to 7th respondent drove the
same maintaining reasonable distance, the accident could have been
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C.M.A.No.2429 of 2021
avoided. In fact, the driver of the lorry belonging to 7 th respondent
attempted to overtake the lorry belonging to 6th respondent in a rash and
negligent manner and caused the accident. Further, it is evident from the
Accident Register that the deceased accidentally fell down from the lorry.
Therefore, it is clear that the accident has occurred only due to the
negligent driving by the driver of the lorry owned by 7th respondent. The
respondents 1 to 5 have to prove the age, avocation and income of the
deceased to claim compensation. In any event, the quantum of
compensation claimed by the respondents 1 to 5 are excessive and prayed
for dismissal of the claim petition as against the appellant.
6.The 7th respondent – owner of the lorry bearing Registration
No.TN 45 AF 1782 filed separate counter statement and denied the
manner of accident and stated that at the time of accident, the deceased
was travelling as Spare Driver in the lorry belonging to 7 th respondent
driven by one Ravi. While they were proceeding opposite to Sri Ram
Hotel at Kannapiranpuram, the driver of the lorry belonging to 6 th
respondent, who was proceeding ahead of the lorry owned by 7 th
respondent, without giving any caution, suddenly applied the brake and
stopped the lorry on the road. Due to the tortuous act of the driver of the
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C.M.A.No.2429 of 2021
6th respondent's lorry, the right backside of the 6 th respondent's lorry was
dashed on the left front side of the lorry owned by 7th respondent. The
entire negligence is only on the part of the driver of the lorry belonging to
6th respondent. At the time of accident, the lorry belonging to 7th
respondent was insured with 8th respondent and the insurance policy was
in force and hence, the 7th respondent is not liable to pay any
compensation to the claimants. The compensation claimed by the
respondents 1 to 5 is excessive and prayed for dismissal of claim petition.
7.The 8th respondent – Oriental Insurance Company Limited being
the insurer of the lorry bearing Registration No.TN 45 AF 1782 belonging
to 7th respondent filed counter statement and denied the manner of
accident and contended that due to negligent driving by the driver of the
lorry belonging to 6th respondent, the accident has occurred. The F.I.R.
was registered only against the driver of the lorry belonging to 6th
respondent and there is no negligence on the part of the driver of the lorry
belonging to 7th respondent. The 8th respondent denied the age, avocation
and income of the deceased and the dependency of the respondents 1 to
5. The compensation claimed by respondents 1 to 5 are highly excessive
and prayed for dismissal of the claim petition.
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C.M.A.No.2429 of 2021
8.Before the Tribunal, the 1st respondent examined herself as
P.W.1, one Ravi, driver of the lorry belonging to 7 th respondent as well as
eyewitness to the accident was examined as P.W.2 and 10 documents
were marked as Exs.P1 to P10. The respondents 6 to 8 and appellant did
not let in any oral and documentary evidence.
9.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by the driver of the lorry belonging to the 6 th respondent and
directed the appellant as insurer of 6th respondent's lorry to pay a sum of
Rs.29,05,000/- as compensation to the respondents 1 to 5 and dismissed
the claim petition as against the respondents 7 & 8.
10.Challenging the liability fastened on them and questioning the
quantum of compensation granted by the Tribunal in the award dated
20.01.2021, made in M.C.O.P. No.609 of 2013, the appellant has come
out with the present appeal.
11.The learned counsel appearing for the appellant contended that
the Tribunal failed to adjudicate the issue properly on negligence and
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C.M.A.No.2429 of 2021
liability. The accident occurred only when the driver of the lorry bearing
Registration No.TN 45 AF 1782 belonging to 7th respondent drove the
same in a rash and negligent manner and dashed on the backside of the
lorry bearing Registration No.TN 31 E 7899 owned by 6th respondent and
insured with appellant, which was proceeding ahead of him. The Tribunal
failed to see that the vehicle coming behind the ongoing vehicle must
maintain sufficient distance from other vehicle. The evidence of P.W.2, the
driver of the lorry belonging to 7th respondent is not acceptable as he only
dashed on the backside of the lorry belonging to 6th respondent which was
going ahead of him. In the Accident Register registered as per the
information furnished by P.W.2, it has been stated that the deceased fell
down from the lorry. If P.W.2, the driver of the lorry belonging to 7th
respondent maintained moderate speed, he could have avoided the
accident. The accident occurred only due to the negligence of P.W.2,
driver of the lorry belonging to 7th respondent. The respondents 1 to 5 did
not examine the employer of the deceased. The Tribunal erroneously
accepting the income of the deceased based on the letter head salary
certificate, fixed excessive amount of Rs.15,000/- as monthly income of
the deceased and granted excessive compensation and prayed for setting
aside the award of the Tribunal.
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12.Mr.T.Gobinath, learned counsel appearing for the respondents 1
to 5 / claimants contended that the accident occurred only due to the
negligence on the part of the driver of the lorry bearing Registration
No.TN 31 E 7899 belonging to 6th respondent and insured with appellant.
The respondents 1 to 5 examined the driver of the lorry bearing
Registration No.TN 45 AF 1782 belonging to 7th respondent as P.W.2, in
which the deceased traveled and proved the negligence on the part of the
driver of the lorry owned by 6th respondent. The deceased was working as
Spare Driver in the lorry bearing Registration No.TN 45 AF 1782 and the
respondents 1 to 5 have filed Ex.P5 / driving license and Ex.P10 / salary
certificate of the deceased issued by the owner of the lorry and proved the
salary of the deceased. The finding of the Tribunal fixing negligence on
the part of the driver of the lorry belonging to 6 th respondent is valid and
the total compensation awarded by the Tribunal is not excessive and
prayed for dismissal of the appeal.
13.Though notice has been served on the respondents 6 & 7 and
their names are printed in the cause list, there is no representation for
them, either in person or through counsel.
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C.M.A.No.2429 of 2021
14.Mr.S.Arunkumar, learned counsel appearing for the 8th
respondent – Oriental Insurance Company Limited submitted that the
Tribunal dismissed the claim petition against the 8th respondent and
prayed for dismissal of the appeal as against the 8th respondent.
15.Heard the learned counsel appearing for the appellant, learned
counsel appearing for the respondents 1 to 5 as well as the learned
counsel appearing for the 8th respondent and perused the entire materials
on record.
16.It is the case of the respondents 1 to 5 that on 11.05.2013, while
the deceased was travelling as Spare Driver in the M & Co., Transport
lorry bearing Registration No.TN 45 AF 1782 belonging to 7th
respondent, the driver of the lorry bearing Registration No.TN 31 E 7899
belonging to 6th respondent, who was proceeding ahead of the lorry
owned by 7th respondent, drove the same in a rash and negligent manner,
applied sudden brake and stopped the lorry in the middle of the road. On
seeing this, the driver of the lorry in which the deceased was travelling,
tried to avoid the accident by turning the lorry to right side. Inspite of the
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C.M.A.No.2429 of 2021
same, the lorry in which the deceased travelled dashed on the backside of
the lorry which was proceeding ahead and thus the accident occurred due
to negligent stopping of lorry by the driver of the lorry bearing
Registration No.TN 31 E 7899. To prove the said contention, the
respondents 1 to 5 examined the driver of the lorry in which the deceased
was travelling as P.W.2 and marked F.I.R. as Ex.P1, which was registered
against the driver of the lorry belonging to 6th respondent. On the other
hand, it is the case of the appellant that the accident has occurred only
due to negligent driving by P.W.2, who drove the lorry without
maintaining sufficient safe distance and while trying to overtake the lorry
going ahead, dashed on the backside of the lorry belonging to 6th
respondent. To substantiate their contention, appellant and 6th respondent
did not let in any oral and documentary evidence and also they did not
examine the driver of the lorry belonging to 6th respondent. The Tribunal
considering the evidence of P.W.2, contents of Ex.P1/F.I.R. and in the
absence of any contra evidence to the evidence of P.W.2, fixed negligence
on the part of the driver of the lorry bearing Registration No.TN 31 E
7899 belonging to 6th respondent. There is no error in the said reasoning
of the Tribunal, warranting interference by this Court.
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17.As far as quantum of compensation is concerned, the
respondents 1 to 5 claimed that the deceased was working as Driver in M
& Co. Transport, Thuraiyur TK, Trichy District and was earning a sum of
Rs.15,000/- per month and produced Ex.P5 / Driving License and Ex.P10
/ salary certificate of the deceased to prove the same. The Tribunal
accepting the said salary certificate, fixed the monthly income of the
deceased at Rs.15,000/-. A perusal of Ex.P10 shows that it is not a salary
slip of the deceased. In a letter head it has been stated that deceased was
working as Lorry Driver and was paid a sum of Rs.15,000/- per month.
The respondents 1 to 5 have not filed any salary slip and did not examine
the owner of the Transport Company to prove the income of the deceased.
The Tribunal without properly appreciating Ex.P10, erroneously accepted
the same and fixed a sum of Rs.15,000/- as monthly income of the
deceased. In the absence of any materials with regard to income of the
deceased, the monthly income fixed by the Tribunal is excessive. The
accident occurred in the year 2013. Considering the date of accident and
nature of work done by the deceased, a sum of Rs.13,000/- is fixed as
notional income of the deceased. The deceased was aged 38 years at the
time of accident. The Tribunal considering the age of the deceased has
rightly granted 40% enhancement as per the judgment of the Hon'ble
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C.M.A.No.2429 of 2021
Apex Court reported in 2017 (2) TNMAC 609 (SC), [National
Insurance Company Limited Vs. Pranay Sethi and others]. Following
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 Tribunal rightly applied multiplier '15' and
deducted 1/4th towards personal expenses as there are five dependants of
the deceased and awarded compensation. Thus, by fixing a sum of
Rs.13,000/- as monthly income of the deceased, the compensation
awarded by the Tribunal towards loss of dependency is modified to
Rs.24,57,000/- {Rs.18,200/- [(Rs.13,000/- + Rs.5,200/- (40% of
Rs.13,000/-)] x 12 x 15 x ¾}. The respondents 2 to 4 are the children of
the deceased and the Tribunal has not awarded any amount towards loss
of love and affection. The respondents 2 to 4 are entitled to a sum of
Rs.40,000/- each towards loss of love and affection. The amounts
awarded by the Tribunal under other heads are just and reasonable and
hence, they are confirmed. Thus, the compensation awarded by the
Tribunal is modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of dependency 28,35,000/- 24,57,000/- Reduced
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C.M.A.No.2429 of 2021
2. Loss of consortium 40,000/- 40,000/- Confirmed
3. Funeral expenses 15,000/- 15,000/- Confirmed
4. Loss of estate 15,000/- 15,000/- Confirmed
5. Loss of love and
affection to - 1,20,000/- Granted
respondents 2 to 4
Total Rs.29,05,000/- Rs.26,47,000/- Reduced by
Rs.2,58,000/-
18.In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.29,05,000/- is
hereby reduced to Rs.26,47,000/-. The appellant-Insurance Company is
directed to deposit the modified award amount now determined by this
Court along with interest at the rate of 7.5% per annum from the date of
petition till the date of deposit, less the amount already deposited, if any,
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.609 of 2013, on the file of the
Motor Accident Claims Tribunal, Principal District Court, Perambalur.
On such deposit, the respondents 1 to 3 & 5 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, less the amount if any, already
withdrawn by making necessary applications before the Tribunal. The
share of the minor 4th respondent is directed to be deposited in any one of
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C.M.A.No.2429 of 2021
the Nationalized Banks, till the minor 4th respondent attains majority. On
such deposit, the 1st respondent, being the Mother of the minor 4 th
respondent is permitted to withdraw the accrued interest once in three
months for the welfare of the minor 4 th respondent. The appellant is
permitted to withdraw the excess amount lying in the credit of
M.C.O.P.No.609 of 2013, if the entire award amount has been already
deposited by them. This appeal is dismissed as against the respondents 7
& 8. Consequently the connected Miscellaneous Petition is closed. No
costs.
(V.M.V., J) (S.S., J)
22.06.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The Principal District Judge,
Motor Accidents Claims Tribunal,
Perambalur.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
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C.M.A.No.2429 of 2021
and
S.SOUNTHAR, J.
krk
C.M.A.No.2429 of 2021
22.06.2022
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