Madras High Court
The Branch Manager vs Padmini on 13 June, 2022
C.M.A.No.142 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A. No.142 of 2021
and C.M.P.Nos.968 of 2021 & 4273 of 2022
The Branch Manager,
M/s.IFFCO TOKIO General Insurance Co. Ltd.,
No.357/230, Gandhi Road,
Kanchipuram. .. Appellant
Vs.
1.Padmini
2.Minor Gokulakrishnan
3.Minor Kaviya
(Minors rep. by their mother, Padmini)
4.Rathakrishnan
5.Ratharukumini
6.A.Yesu .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 27.11.2019, made
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C.M.A.No.142 of 2021
in M.C.O.P. No.240 of 2015, on the file of the Additional District Court- Fast
Track Court, (Motor Accident Claims Tribunal), Kanchipuram.
For Appellant : Mr.J.Michael Visuvasam
For RR1 to 5 : Mr.G.Anabaya Chozhan
For R6 : 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, to set aside the judgment and decree dated 27.11.2019,
made in M.C.O.P. No.240 of 2015, on the file of the Additional District Court
- Fast Track Court, (Motor Accident Claims Tribunal), Kanchipuram.
2.The appellant is the 2nd respondent in M.C.O.P. No.240 of 2015, on
the file of the Additional District Court - Fast Track Court, (Motor Accident
Claims Tribunal), Kanchipuram. 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 R.Arul, who died in the accident that took place on 09.11.2014.
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C.M.A.No.142 of 2021
3.According to the respondents 1 to 5, on the date of accident, at about
6.30 p.m., when the deceased R.Arul was travelling in his Hero Honda
Splendor Plus Bike bearing Registration No.TN-25-S-3792, on the northern
side of the road, near Nelvai Village, Pukkathurai road, ACT College,
Madhuranthakam, the 6th respondent, rider-cum-owner of the Splendor NXG I
Smart Motorcycle bearing Registration No.TN-21-AQ-9561 drove the same
in a rash and negligent manner and dashed against the Hero Honda Splendor
and caused the accident. In the accident, the said R.Arul sustained fatal
injuries. The accident occurred only due to rash and negligent riding of
Motorcycle by the 6th respondent and hence, the respondents 1 to 5 filed
claim petition against the 6th respondent and appellant as rider-cum-owner
and insurer of the Motorcycle respectively.
4.The 6th respondent, rider-cum-owner of the Motorcycle, remained
exparte before the Tribunal.
5.The appellant-Insurance Company filed counter statement and denied
all the averments made by the respondents 1 to 5 in the claim petition.
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C.M.A.No.142 of 2021
According to the appellant-Insurance Company, as per FIR, some unknown
Two Wheeler hit against the Hero Honda Splendor driven by the deceased
R.Arul and thereby sustained fatal injuries. Further, at the time of accident,
the deceased, without valid driving license and without wearing helmet, was
riding the Hero Honda Splendor in a rash and negligent manner and invited
the accident. The 6th respondent, in order to claim compensation illegally,
colluding with the respondents 1 to 5 and the Police officials, on the advice of
legal Advisor, has voluntarily surrendered before the Judicial Magistrate
Court, stating that he hit the deceased vehicle along with his daughter. The
6th respondent and his daughter has not sustained any injuries, while the
deceased sustained fatal injuries. Hence, the appellant is not liable to pay any
compensation to the respondents 1 to 5. The 6th respondent also did not
possess valid driving license to ply the vehicle at the time of accident. In any
event, the total compensation claimed by the respondents 1 to 5 is excessive
and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1,
one Yokesh, eye-witness was examined as P.W.2, Murali, Assistant Executive
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C.M.A.No.142 of 2021
Officer, TNEB, Kancheepuram was examined as P.W.3 and 22 documents
were marked as Exs.P1 to P22. On the side of the appellant-Insurance
Company, one Khadharbee, Junior Assistant, RTO Office, Kancheepuram was
examined as R.W.1, Nithiyanandham, Sub Inspector of Police was examined
as R.W.2 and Naveen, Chief Legal Advisor of appellant-Insurance Company
was examined as R.W.3 and 8 documents were marked as Exs.R1 to R8.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
riding by the 6th respondent, rider-cum-owner of Motorcycle and directed the
appellant as insurer of the said vehicle to pay a sum of Rs.32,43,040/- as
compensation to the respondents 1 to 5 at the first instance and recover the
same from the 6th respondent.
8.Against the said award of the Tribunal dated 27.11.2019, made in
M.C.O.P. No.240 of 2015, the appellant - Insurance Company has come out
with the present appeal.
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C.M.A.No.142 of 2021
9.The learned counsel appearing for the appellant-Insurance Company
contended that the Tribunal erred in holding that the accident occurred due to
negligent riding of the 6th respondent. The Tribunal erred in holding that the
appellant failed to controvert the evidence let in by the respondents 1 to 5,
without considering the oral and documentary evidence let in by the
appellant. In the FIR, it has been stated that the accident has occurred when
an unknown vehicle dashed on the Hero Honda Splendor in which the
deceased R.Arul travelled and it is only a 'hit and run' case. The Tribunal
failed to note that the Police were unable to trace the accused i.e., rider of
Hero Honda Splendor for more than 40 days of road accident. The Tribunal
failed to appreciate that the 6th respondent surrendered before the Police after
40 days of the alleged accident. The respondents 1 to 5, in collusion with the
6th respondent and Police officials, made the 6th respondent surrender before
the Judicial Magistrate, Uthiramerur and thereafter, the Police filed Final
Report before the Judicial Magistrate, Uthiramerur. The Tribunal failed to
appreciate the collusion between the respondents. The Tribunal failed to take
into consideration the judgment in the Criminal Court, wherein the 6 th
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C.M.A.No.142 of 2021
respondent was acquitted as none of the witness was able to substantiate that
6th respondent was responsible for the accident. The evidence of P.W.2 is
unworthy of acceptance. The Tribunal erroneously relied on the evidence of
P.W.2. The accident, as alleged by the respondents 1 to 5, would not have
happened in view of the damages noted down by the Motor Vehicle Inspector
in Exs.R2 and R3. The deceased also contributed to the accident by not
possessing driving license and not wearing helmet at the time of accident. In
any event, the monthly income of Rs.16,789/- fixed by the Tribunal relying
on Ex.P22 was not reflected in bank accounts. The deceased was aged 40
years at the time of accident. The Tribunal erroneously granted 40%
enhancement towards future prospects of the deceased, instead of granting
25%. The total compensation granted by the Tribunal is excessive and prayed
for setting aside the award of the Tribunal.
10.Per contra, the learned counsel appearing for the respondents 1 to 5
submitted that the accident occurred due to the negligent driving by the 6th
respondent. The respondents 1 to 5 proved the involvement of the vehicle
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C.M.A.No.142 of 2021
owned by the 6th respondent and negligence of the 6th respondent, by
examining P.W.2. The deceased was working in the Tamil Nadu Electricity
Board as E.B. Mazdoor and was earning a sum of Rs.19,390/- per month. It is
a permanent job. He was aged 39 years at the time of accident. The
respondents 1 to 5 produced Ex.P8 – Identity Card, issued by the Tamil Nadu
Electricity Board, to prove the age and avocation of the deceased. The
Tribunal, without considering Ex.P8, erroneously fixed the age of the
deceased as 40 years and granted 40% enhancement towards future prospects,
instead of granting 50% enhancement. The total compensation granted by the
Tribunal is not excessive and prayed for dismissal of the appeal.
11.Though notice has been served on the 6th respondent and his name is
printed in the cause list, there is no representation for him either in person or
through counsel.
12.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the respondents 1 to 5 and perused the entire materials
available on record.
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13.From the materials on record, it is seen that the appellant-Insurance
Company is challenging the award of the Tribunal on the ground that the
accident was caused by 'unknown vehicle' and it is a 'hit and run' case. The
respondents 1 to 5, in collusion with the 6th respondent and Police officials,
filed claim petition to get compensation from the appellant on false
allegations. The vehicle of the 6th respondent was not at all involved in the
accident. In addition to that, the appellant is challenging the quantum of
compensation awarded to the respondents 1 to 5. According to the
respondents 1 to 5, one R.Arul, the husband of the 1st respondent, on
09.11.2014, while riding a Hero Honda Splendor bearing Registration
No.TN-25-S-3792 on the northern side of the Pukkathurai Road, ACT
College, Madhuranthakam, 6th respondent, rider of the Motorcycle bearing
Registration No.TN-21-AQ-9561, drove the same in a rash and negligent
manner, dashed against the Hero Honda Splendor driven by the deceased
R.Arul and caused the accident. In the accident, the said R.Arul sustained
severe injuries and died, due to the injuries. To substantiate their claim, they
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C.M.A.No.142 of 2021
examined P.W.2, eye-witness to the accident and marked FIR and Charge
Sheet as Exs.P1 & P12, which was laid against the 6 th respondent. On the
other hand, it is the case of the appellant that vehicle of the 6th respondent
was not at all involved in the accident and claim petition is collusive and
made on false allegations. To substantiate their claim, they examined R.W.2,
Sub-Inspector of Police, Salavakkam, relied on the FIR and marked two
Motor Vehicle Inspector's report, Charge Sheet and judgment of the Criminal
Court, wherein the 6th respondent was acquitted, as Exs.R2, R3, R5 & R6
respectively. It is the case of the appellant that in the FIR, it has been stated
that the accident was caused by unknown vehicle and it is a 'hit and run' case.
14.It is well settled that contents of FIR and Criminal Court
proceedings are not sole criteria for fixing negligence and are not binding on
the Tribunal. The Tribunal has to come to conclusion with regard to
negligence based on the materials placed before it and taking into
consideration the evidence let in before the Tribunal. In the present case, the
respondents 1 to 5 have examined P.W.2/eye-witness, who deposed that
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C.M.A.No.142 of 2021
accident occurred due to rash and negligent driving of Motorcycle by the 6th
respondent. The appellant has not examined any witness to controvert the
evidence of P.W.2. Except stating that the evidence of P.W.2 is unworthy and
not reliable, the appellant has not filed any materials to show as to how the
evidence of P.W.2 should not be accepted. The appellant examined the Sub-
Inspector of Police as R.W.2. The evidence of R.W.2 reveals that 6th
respondent surrendered before the Judicial Magistrate, Uthiramerur, Charge
Sheet was laid against the 6th respondent and 6th respondent was acquitted in
the Criminal case. The evidence of R.W.2 no way advances the case of the
appellant. The Tribunal, considering the evidence of P.W.2, concluded that
the accident has occurred only due to the negligence of the 6th respondent. We
find there is no error in the said finding of the Tribunal, warranting
interference by this Court.
15.As far as the quantum of compensation is concerned, it is the
contention of the learned counsel appearing for the appellant-Insurance
Company that the Tribunal, relying on Ex.P22, erroneously fixed a sum of
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C.M.A.No.142 of 2021
Rs.16,789/- per month as income of the deceased. The respondents 1 to 5
produced Exs.P9 – P11, computer generated pay slips issued by the Tamil
Nadu Electricity Board to show that the deceased was earning a sum of
Rs.15,780/- per month as salary and relied on Ex.P22-salary certificate on
letter head. In view of the same, the income fixed by the Tribunal is not
correct. The respondents 1 to 5 claimed that the deceased was aged 39 years
at the time of accident. They have filed Ex.P8 – Identity Card of the deceased,
in which the Date of Birth of the deceased is mentioned as 30.07.1975. The
accident occurred on 09.11.2014. On the date of accident, the deceased has
completed only 39 years. The Tribunal erroneously fixed the age of the
deceased as 40 years and granted only 40% enhancement towards future
prospects. The deceased was working as E.B. Mazdoor in the Tamil Nadu
Electricity Board, which is a permanent job. As per the judgment of the
Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National
Insurance Co. Ltd., Vs. Pranay Sethi and others], the respondents 1 to 5 are
entitled to 50% enhancement towards future prospects. If a sum of
Rs.15,780/- per month is fixed as income of the deceased and 50% is granted
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C.M.A.No.142 of 2021
towards future prospects, the amount arrived towards loss of dependency
would be more than the amount awarded by the Tribunal. In view of the
same, we are not interfering with the amount fixed by the Tribunal as monthly
income and the total compensation awarded by the Tribunal is not excessive.
16.For the above reason, this Civil Miscellaneous Appeal is dismissed
and the amount awarded by the Tribunal at Rs.32,43,040/- together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit is confirmed. The appellant-Insurance Company is directed to deposit
the award amount along with interest and costs, less the amount already
deposited, 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.240 of 2015, at the first instance
and recover the same from the 6th respondent. On such deposit, the
respondents 1, 4 and 5 are permitted to withdraw their share of the award
amount, along with proportionate interest and costs, as per the ratio of
apportionment fixed by the Tribunal, after adjusting the amount, if any,
already withdrawn, by filing necessary applications before the Tribunal. The
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C.M.A.No.142 of 2021
share of the minor respondents 2 and 3 are directed to be deposited in any one
of the Nationalized Bank, till the minors attain majority. The 1st respondent,
mother of the minor respondents 2 and 3 is permitted to withdraw the accrued
interest, once in three months for the welfare of the minor respondents 2 and
3. Consequently, connected Miscellaneous Petitions are closed. No costs.
(V.M.V., J) (S.S., J)
13.06.2022
Index : Yes/No
Speaking Order : Yes/No
gsa
To
1.The Additional District Judge,
Fast Track Court,
(Motor Accident Claims Tribunal),
Kanchipuram.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.No.142 of 2021
V.M.VELUMANI, J.
and
S.SOUNTHAR,J.
(gsa)
C.M.A. No.142 of 2021
13.06.2022
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