Madras High Court
The Regional Manager vs N.Elumalai on 1 March, 2022
C.M.A.No.2164 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.M.A.No.2164 of 2017
and
C.M.P.No.11472 of 2017
The Regional Manager,
M/s.Reliance General Insurance Company Limited,
No.6, 6th Floor, Hadows Road, Nungambakkam,
Chennai – 600 006. ...Appellant
Vs.
1.N.Elumalai
2.Thirupathy
3.Sampath @ Sampathkumar
Amirthammal (deceased)
4.S.Sudhakar
5.T.S.Sachithanandam
6.M/s.United India Insurance Co. Ltd.,
No.53, North Raja Street,
Tiruvallur. ..Respondents
1/10
https://www.mhc.tn.gov.in/judis
C.M.A.No.2164 of 2017
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated in
M.C.O.P.No.4365 of 2010 dated 07.11.2016 in the Court of the Chief Judge,
Motor Accident Claims Tribunal, Chennai.
For Appellant : Mr.Suresh for Mr.K.Moorthy
For Respondents : Mr.S.G.Emberumanar
for R1 to R3
Mr.A.Dhiraviyanathan for R4
R5 - Exparte
JUDGMENT
The 2nd respondent in M.C.O.P.No.4365 of 2010 on the file of the
Motor Accident Claims Tribunal / Chief Judge, Court of Small Causes,
Chennai is the appellant herein.
2.The said petition in M.C.O.P.No.4365 of 2010 had been filed by
the legal representatives of one Thombarai, who died in an accident which
occured on 19.05.2009. The deceased Thombarai, was qualified as a
conductor and he had also obtained a Conductor's Training Certificate,
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C.M.A.No.2164 of 2017
which had been marked as Ex.P5. He was working as a Conductor in
Sundaram Transports.
3.On 19.05.2009, when he was travelling in a bus as a Conductor,
which bus was insured with the 4th respondent Insurance Company, a tipper
lorry came across and when the bus driver applied breaks suddenly, the
deceased fell down, suffered head injuries and died. Claiming
compensation, the legal representatives had preferred M.C.O.P.No.4365 of
2010.
4.The 2nd respondent was the insurer of the lorry and the 4 th
respondent was the insurer of the bus in which the deceased was working as
a Conductor.
5.The facts are not in dispute.
6.The 2nd respondent had preferred the present appeal primarily on
the apportionment of the quantum of compensation granted. The Tribunal
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C.M.A.No.2164 of 2017
had determined that the lorry was responsible for the accident but granted
an apportionment of 75% of the compensation to be paid by the insurer of
the lorry and 25% to be paid by the insurer of the bus. The appeal had been
filed questioning such apportionment.
7.Arguments have also advanced with respect to the actual
compensation granted.
8.Before deciding on the apportionment, let me examine the
compensation, which had been granted to the claimants before the Tribunal.
9.The Tribunal, had determined that the age of the deceased was
26 years and in this regard had relied on Ex.P5, which gave the date of his
birth as 05.01.1983. The accident had taken place on 19.05.2009. In view
of that age document, the age being taken as 26 years. The multiplier was
taken at 17. Thereafter, the Tribunal determined the income of the deceased
for which, there was not much evidence available except Ex.P5, which again
was a certificate to work as a Conductor. The said certificate had been given
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C.M.A.No.2164 of 2017
after the training had been conducted. There was also a possibility that the
deceased could have been obsorbed to work in a Government bus, to work
as a Conductor. He had been working in Sundaram Transports. The
Tribunal had determined his income at Rs.10,000/- per month.
10.It is a fact that some skill and training is required to actually
work as a Conductor. Without that particular certificate, nobody can be
appointed as a Conductor or recognised to work as a Conductor officially,
even in a private transport bus. Therefore, the certificate, which was
obtained by the deceased has some value and I would not interfere with the
income determined by the Tribunal at Rs.10,000/- per month. The Tribunal
then, added 50% towards future prospects and then proceeded to determine
the actual inome at Rs.15,000/-. Thereafter, from that amount, 50% was
deducted towards his personal expenses and the Tribunal fixed to salary
contributed at Rs.7,500/- per month. The compensation after applying the
multiplier of 17 was (Rs.7,500 X 12 X 17 ) = Rs.15,30,000/-. Towards the
love and affection to the 1st petitioner, the Tribunal had granted a sum of
Rs.25,000/- and towards the 3rd and 4th petitioner a sum of Rs.10,000/-. The
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C.M.A.No.2164 of 2017
Tribunal, further granted a sum of Rs.25,000/- towards funeral expenses. In
total, the Tribunal had arrived at a total compensation of Rs.16,00,000/-
payable to the claimants.
11.As aforesaid, I am not interfering with that particular
compensation granted.
12.Now, the apportionment between the insurer of the lorry and
the insurer of the bus has to be examined. The facts are as follows:-
The deceased was working as a Conductor of a bus in Sundaram
Transports. He was standing on the foot board. We can take that it is
normal for a Conductor to stand in the foot board to ensure that the other
passengers enter into the bus safely and move forward in the bus. At that
particular point of time, a tipper lorry came across and the bus driver applied
sudden break. Since he was standing in the foot board, the deceased felt
down and suffered head injuries.
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C.M.A.No.2164 of 2017
13.The accident had occurred owing to two factors. The lorry had
come across the bus and the bus driver had applied sudden breaks. I have to
point out that the lorry came across from a side road. It is only natural that
the bus driver should have been aware of any vehicle which would cut
across a road which bisects the main road. If he had applied sudden breaks
and the deceased felt down and suffered head injuries causing death, it can
also be reasonably presumed that the bus was also going at some speed.
That cannot be faulted. The lorry driver had an obligation to ensure there
are no vehicles in percievable distance, before he drives the lorry to the main
road. He had not done so.
14.Therefore, it is only appropriate that there is equal
apportionment between the insurer of the lorry and insurer of the bus with
respect to the compensation that was granted. I would therefore, revised
that particular apportionment of 75% to the insurer of the lorry and 25% to
the insurer of the bus and set aside the said finding. I would rather equally
apportion the liability at 50% to each of the two insurers.
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C.M.A.No.2164 of 2017
15.No other grounds have been urged and I would therefore, allow
the appeal only to that particular extent by revising the liability on by the
insurer of the lorry and on insurer of the bus an equal apportionment of
50% each.
16.It is informed that the Appellant had deposited a sum of
Rs.10,00,000/- pursuant to an earlier order of this Court. The
apportionment being 50% to be borne by the appellant and by the 6th
respondent herein, if any additional amount had been deposited by the
appellant, they are entitled to withdraw the same. The 6th respondent is
directed to deposit their 50% of the compensation within a period of eight
weeks from the receipt of a copy of this order. That deposit should carry
interest at 7.5% p.a. and the same apportionment among the claimants are
retained. The 1st petitioner / 1st respondent herein is entitled to a sum of
Rs.12,00,000/- and the petitioners 2 and 3 are entitled to Rs.2,00,000/- each.
It is made clear that the amount should be deposited in any one of the
nationalised banks for a period of 3 years in fixed deposit and the petitioners
1, 2 and 3 are entitled to receive the accrued interest once in three months
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C.M.A.No.2164 of 2017
from the bank directly.
17.With the above observations, this Civil Miscellaneous Appeal is
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
01.03.2022
kkn
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
To-
The Motor Accident Claims Tribunal,
Chief Judge, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.2164 of 2017
C.V.KARTHIKEYAN, J.
KKN
C.M.A.No.2164 of 2017
and
C.M.P.No.11472 of 2017
01.03.2022
https://www.mhc.tn.gov.in/judis
