Madras High Court
The Branch Manager vs G.Jaya on 30 June, 2022
C.M.A.No.1370 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.1370 of 2022
and C.M.P.No.9922 of 2022
The Branch Manager,
Reliance Gen. Ins. Co. Ltd.,
AVS Tower, R.S.No.181/2, 100 feet road,
Muthaialpet, Puducherry. .. Appellant
Vs.
1.G.Jaya
2.G.Thamarai Selvi
3.M.Sarihath Nisha .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
10.12.2021, made in M.C.O.P.No.248 of 2021, on the file of the Motor
Accident Claims Tribunal, Additional District Court, Fast Track Mahila
Court, Nagapattinam.
For Appellant : Mrs.C.Bhuvanasundari
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C.M.A.No.1370 of 2022
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.)
This Civil Miscellaneous Appeal has been filed by the appellant /
Insurance Company Limited against the judgment and decree dated
10.12.2021, made in M.C.O.P.No.248 of 2021, on the file of the Motor
Accident Claims Tribunal, Additional District Court, Fast Track Mahila
Court, Nagapattinam.
2.Originally the respondents 1 & 2 filed the claim petition in
M.C.O.P.No.243 of 2020 before the Sessions Court, Nagapattinam,
claiming a sum of Rs.75,00,000/- as compensation for the death of one
G.Gunasekaran, who died in the accident that took place on 15.12.2019.
The same was taken on file on 05.09.2020. Thereafter, the said
M.C.O.P.No.243 of 2020 was transferred to the Motor Accident Claims
Tribunal, Additional District Court, Fast Track Mahila Court,
Nagapattinam and re-numbered as M.C.O.P.No.248 of 2021 and taken
on file on 23.11.2021. The appellant is the 2nd respondent in
M.C.O.P.No.248 of 2021.
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C.M.A.No.1370 of 2022
3.According to the respondents 1 & 2, on 15.12.2019 at about
11.00 A.M., while the deceased G.Gunasekaran was returning home after
dropping his mother, the 1st respondent herein at the Majakollai Kamatchi
Amman Temple by riding the Honda Dio motorcycle bearing Registration
No.TN 51 AF 7102 from West to East direction near Manjakollai
Kannara street Arch, the driver of the Chozha private bus bearing
Registration No.TN 51 H 6752 belonging to 3rd respondent, drove the bus
in a rash and negligent manner from East to West, dashed on the
motorcycle driven by the said G.Gunasekaran and caused the accident. In
the accident the said G.Gunasekaran sustained injuries in the left fore
head, left chest, left hand and left thigh. Immediately after the accident
the said G.Gunasekaran was taken to Government Head Quarters
Hospital, Nagapattinam for first aid treatment. Thereafter, he was taken
to Thiruvarur Government Medical College and Hospital, Thiruvarur for
further treatment. Inspite of medical treatment, the said G.Gunasekaran
succumbed to injuries on the same day. Hence, the respondents 1 & 2
filed the claim petition against the 3rd respondent and appellant, being the
owner and insurer of the bus respectively.
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C.M.A.No.1370 of 2022
4.The 3rd respondent – owner of the bus remained exparte before
the Tribunal.
5.The appellant being the insurer of the bus belonging to 3 rd
respondent filed counter statement and denied all the averments made by
the respondents 1 & 2 in the claim petition. The appellant denied the
manner of accident as well as the involvement of 3 rd respondent's bus in
the accident as alleged by the respondents 1 & 2. At the time of accident,
the driver of the bus belonging to 3rd respondent did not possess valid
driving license to drive the bus. The 3rd respondent violated the policy
conditions by allowing a person without possessing driving license to
drive the bus, which had no valid permit and Fitness Certificate. The
accident has occurred only due to the negligence on the part of the
deceased and there is no negligence on the part of the driver of the bus. At
the time of accident, the bus belonging to 3 rd respondent was not covered
with valid insurance policy. Hence, the appellant is not liable to pay any
compensation to the respondents 1 & 2. In any event, the respondents 1
& 2 are not entitled to any interest for the delay period caused by them in
furnishing the medical documents or any other documents. The quantum
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C.M.A.No.1370 of 2022
of compensation claimed by the respondents 1 & 2 are excessive and
prayed for dismissal of the claim petition as against the appellant.
6.Before the Tribunal, the 1st respondent examined herself as
P.W.1, one Siva, eyewitness to the accident was examined as P.W.2 and
20 documents were marked as Exs.P1 to P20. 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 only due to rash and negligent
driving by the driver of the bus belonging to the 3rd respondent and
directed the appellant as insurer of 3rd respondent's bus to pay a sum of
Rs.23,93,000/- as compensation to the respondents 1 & 2.
8.Challenging the liability fastened on them and questioning the
quantum of compensation granted by the Tribunal in the award dated
10.12.2021, made in M.C.O.P.No.248 of 2021, the appellant has come
out with the present appeal.
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C.M.A.No.1370 of 2022
9.The learned counsel appearing for the appellant contended that
the accident occurred only due to the negligence on the part of the
deceased. At the time of accident, the deceased did not possess driving
license and did not wear helmet. The respondents 1 & 2 did not produce
and mark the Motor Vehicle Inspector's Report. The Tribunal relied on the
evidence of P.W.2 and erroneously fixed the negligence on the part of the
driver of the bus belonging to 3rd respondent and insured with appellant.
The deceased was unemployed for more than 1 ½ years after completing
his degree. There is no material to show that he was waiting for
Government job. In the absence of any evidence, the monthly income of
the deceased fixed by the Tribunal at Rs.15,000/- is excessive. The 2nd
respondent is neither a legal heir nor dependant of the deceased and
hence, a sum of Rs.40,000/- awarded to the 2 nd respondent is not correct
and prayed for setting aside the award of the Tribunal.
10.Heard the learned counsel appearing for the appellant and
perused the entire materials on record.
11.It is the case of the respondents 1 & 2 that on 15.12.2019, while
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C.M.A.No.1370 of 2022
the deceased G.Gunasekaran, son of the 1st respondent and brother of the
2nd respondent was riding the Honda Dio motorcycle from West to East
direction near Manjakollai Kannara street Arch, the driver of the Chozha
private bus belonging to 3rd respondent, drove the same in a rash and
negligent manner and dashed on the motorcycle in which the deceased
G.Gunasekaran was riding and caused the accident. In the accident, the
said G.Gunasekaran sustained injuries and due to the injuries, he died on
the same day. To prove their contention, the respondents 1 & 2 examined
one Siva, eyewitness to the accident, as P.W.2 and marked F.I.R., which
was registered against the driver of the bus belonging to 3rd respondent,
as Ex.P1. On the other hand, it is the case of the appellant that the
accident occurred only due to the negligence on the part of the deceased.
It is the further case of the appellant that at the time of accident, the
deceased did not wear helmet and also did not possess driving license.
The appellant did not let in any oral and documentary evidence to prove
their case. Especially, the appellant did not examine the driver of the bus
or any eyewitness to prove their case that the deceased only caused the
accident. The contention of the learned counsel appearing for the
appellant that the deceased was not having driving license and did not
wear helmet at the time of accident is not supported by any evidence. In
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C.M.A.No.1370 of 2022
the cross examination of P.W.2, there was no material to show that he is
not an eyewitness and he is not reliable evidence had been elucidated. In
the absence of uncontraverted evidence of P.W.2 and F.I.R. which was
marked as Ex.P1, the Tribunal considered the above materials and rightly
held that the accident occurred due to the rash and negligent driving by
the driver of the bus belonging to 3rd respondent and insured with
appellant. There is no error in the said finding of the Tribunal warranting
interference by this Court.
12.As far as quantum of compensation is concerned, it is the case
of the respondents 1 & 2 that the deceased was aged 23 years at the time
of accident and has completed Marine Engineering course and was
waiting for the job. The accident has occurred in the year 2019. Even if
deceased is unemployed, taking into consideration the circumstances of
the case, the notional income can be fixed and compensation can be
awarded for loss of dependency. In the present case, considering the fact
that the deceased has completed Marine Engineering course and the
possibility of getting employment is not ruled out, a sum of Rs.15,000/-
per month fixed by the Tribunal as notional income of the deceased is not
excessive as the accident occurred in the year 2019. Further, the
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C.M.A.No.1370 of 2022
contention of the learned counsel appearing for the appellant that the 2nd
respondent was not the dependant of the deceased and hence, a sum of
Rs.40,000/- granted to the 2nd respondent towards loss of love and
affection is to be set aside is concerned, had the deceased been alive, he
would have been taking care of his own sister and contributed towards
her education and other maintenance. In view of the same, a sum of
Rs.40,000/- awarded by the Tribunal towards loss of love and affection to
2nd respondent is not interfered with.
13.For the above reasons, this Civil Miscellaneous Appeal is
dismissed and a sum of Rs.23,93,000/- awarded by the Tribunal as
compensation to the respondents 1 & 2, along with interest and costs is
confirmed. The appellant-Insurance Company is directed to deposit the
award amount 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.248 of 2021, on the file of the
Motor Accident Claims Tribunal, Additional District Court, Fast Track
Mahila Court, Nagapattinam. On such deposit, the respondents 1 & 2 are
permitted to withdraw their respective share of the award amount as per
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C.M.A.No.1370 of 2022
the ratio of apportionment fixed by the Tribunal, along with proportionate
interest and costs after adjusting the amount, if any already withdrawn,
by making necessary applications before the Tribunal. Consequently the
connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (S.S., J)
30.06.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The Additional District Judge,
Motor Accidents Claims Tribunal,
Fast Track Mahila Court,
Nagapattinam.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.1370 of 2022
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
krk
C.M.A.No.1370 of 2022
30.06.2022
https://www.mhc.tn.gov.in/judis
