Madras High Court
The United India Insurance Co. Ltd vs Angala Eswari on 31 March, 2022
C.M.A.(MD)No.734 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A(MD)No.734 of 2020
The United India Insurance Co. Ltd.,
Represented by its Branch Manager,
443, Periyakulam Road,
Theni. ... Appellant /2nd Respondent
Vs.
1. Angala Eswari
2. Minor N.Mithra Sri
3. Minor N.Chenba Sri
(Respondents 2 and 3 being minors represented
by their guardian and mother 1st respondent)
4. Chennaiyasamy ... Respondents 1 to 4 / Petitioners
5. M.Murugan ... 5th Respondent /1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173(1) of the
Motor Vehicles Act praying this Court to set aside the fair and decreetal
1/12
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C.M.A.(MD)No.734 of 2020
order, dated 14.08.2019 made in M.C.O.P No.4 of 2019 on the file of the
learned Motor Accidents Claims Tribunal/Additional District Judge,
Theni, and allow the above Civil Miscellaneous Appeal.
For Appellant : Mr.A.Shajahan
For Respondents : Mr.K.M.Maharaja - RR1 to 4
: Dispensed with - R5
JUDGMENT
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
Challenge in this Appeal is to the award of the Motor
Accidents Claims Tribunal /Additional District Judge, Theni, made in
M.C.O.P No.4 of 2019, granting a sum of Rs.27,35,800/- (Rupees
Twenty Seven Lakhs Thirty Five Thousand and Eight Hundred only) as
compensation for the death of one Neethi Rajan, who died in a motor
accident that occurred on 06.01.2018.
2. According to the claimants, who are wife and children of
the deceased, while the deceased was travelling in his two wheeler,
Splender Plus bearing Registration No.TN 59 AL 6172 from south to
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C.M.A.(MD)No.734 of 2020
North on the extreme left side of Aranmanaipudur Main Road, another
motor cycle bearing Registration No.TN 60 P 5191 driven by one Pandi
in a rash and negligent manner came in the opposite direction on the
wrong side, hit against the two wheeler of the deceased. As a result of
the impact, the deceased was thrown off the motor cycle and sustained
grievous injuries. He died on 09.01.2018 at Government Rajaji Hospital,
Madurai.
3. It was claimed that the deceased was working as a
Salesman in Vetri Tata Car Company, Theni and earning a salary of
Rs.15,000/- (Rupees Fifteen Thousand only) per month. Claiming that
the family of the deceased namely, the wife and two minor daughters as
well as the father, who was shown as fourth petitioner before the
Tribunal, have lost their sole breadwinner and his support, the claimants
sought compensation of Rs.30,00,000/- (Rupees Thirty Lakhs only).
4. The claim petition was resisted by the insurer of the motor
cycle bearing Registration No.TN 60 P 5191, contending that the
accident did not occur in the manner alleged by the claimants. It was
claimed that the deceased was also responsible for the accident and had
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C.M.A.(MD)No.734 of 2020
contributed to the accident. It was contended that the deceased did not
have a valid driving licence. It was the further contention of the
insurance company that it cannot be held liable because the driver of the
motor cycle insured with them namely, one Pandi, did not have a valid
driving licence on the date of the accident.
5. At trial, the first claimant was examined as P.W.1 and two
other witnesses were examined. P.W.2 is an eye witness and P.W.3 is the
Manager of the Car Show Room in which the deceased was working.
Exs.P.1 to P.16 were marked. The insurance company examined two
witnesses on its side. R.W.1 is a Manager of the Insurance Company and
R.W.2 is a Clerk from the Regional Transport Office. Exs.R1 and R2
were marked.
6. The Tribunal, upon consideration of the evidence on
record, concluded that the accident was caused due to the rash and
negligent driving of the two wheeler bearing Registration No.TN 60 P
5191 insured with the appellant insurance company. In coming to the
said conclusion, the Tribunal relied upon the evidence of P.W.2-eye
witness and the FIR. Though the insurance company claimed that the
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C.M.A.(MD)No.734 of 2020
deceased has contributed to the accident, it did not choose to examine the
insurer or the rider of the insured vehicle namely, Pandi. There was no
evidence adduced to show that the deceased has contributed to the
accident.
7. On quantum, the Tribunal accepted the evidence of P.W.3,
Exs.P.15 and P.17 and fixed the monthly income at Rs.15,000/- (Rupees
Fifteen Thousand only). Considering the age of the deceased namely 40
years, the Tribunal adopted future prospects at 25%. It deducted 1/4th
towards personal expenses and applied a multiplier of 15. The loss of
dependency was thus arrived at Rs.25,30,800/- (Rupees Twenty Five
Lakhs Thirty Thousand and Eight Hundred only). The Tribunal awarded
the following amounts towards non-conventional damages :
1. Transportation for taking the body Rs.5,000/-
2. Funeral Expenses Rs.15,000/-
3. Loss of consortium to 1st petitioner Rs.40,000/-
4. Loss of Love and Affection to the Rs.1,00,000/-
minors P2 & P3 each Rs.50,000/-
5. Loss of Love and Affection to P4 Rs.30,000/-
6. Loss of Estate Rs.15,000/-
Total Rs.2,05,000/-
Thus the total compensation awarded by the Tribunal was at
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C.M.A.(MD)No.734 of 2020
Rs.27,35,800/- (Rupees Twenty Seven Lakhs Thirty Five Thousand and
Eight Hundred only).
8. We have heard Mr.A.Shajahan, learned counsel appearing
for the appellant–insurance company and Mr.K.M.Maharaja, learned
counsel appearing for the claimants. The fifth respondent is the owner of
the vehicle. The fifth respondent has remained exparte before the
Tribunal. Hence, notice to the fifth respondent is dispensed with.
9. Mr.A.Shajahan, learned counsel appearing for the
appellant-insurance company would vehemently contend that the
Tribunal was not right in making the insurance company liable, since, it
was proved beyond doubt that the rider of the two wheeler insured with it
namely, TN 60 P 5191 was not having a valid driving licence on the date
of the accident.
10. Drawing our attention to the copy of the licence that has
been filed along with document i.e., Ex.R.1., the learned counsel would
submit that the rider of the two wheeler insured with it namely, Pandi had
obtained a driving licence only on 02.01.2019. Therefore, he was not
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C.M.A.(MD)No.734 of 2020
possessed of a valid driving licence on the date of the accident. Even
accepting the case of the insurance company that the rider of the two
wheeler bearing Registration No.TN 60 P 5191 did not have a valid
driving licence, at best, only pay and recovery can be ordered. The
Tribunal has not done that.
11. The learned counsel for the appellant-insurance
company would next contend that the deceased had contributed to the
accident. We find no evidence to support the contention of the learned
counsel for the insurance company in this regard. P.W.2-eye witness has
spoken about the accident and he has blamed the rider of the two wheeler
bearing Registration No.TN 60 P 5191 for the accident. The FIR has also
been registered against the driver of the said two wheeler namely, Pandi.
There is no contra evidence. Contributory negligence is not a matter of
presumption. It has to be established by evidence. Though the learned
counsel would rely upon the judgment of the Division Bench of this
Court, in United India Insurance Company Ltd., Vs. A. Semmalar
and others reported in 2019 (1) - TN MAC – 22 (DB), in which, one of
us (Mr.Justice R.SUBRAMANIAN) is a party, we do not think the said
judgment supports the case of the insurance company. On facts, we find
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C.M.A.(MD)No.734 of 2020
that was a case where a car that was driven at a high speed and dashed
against a stationary lorry. Therefore, contributory negligence was arrived
at on the established facts. In the case on hand, we do not see any
evidence to support the claim of the insurance company that there was
any contributory negligence on the part of the deceased who was also
riding a two wheeler.
12. Admittedly, the accident had taken place on the left side
of the road and the rider of the two wheeler bearing Registration No.TN
60 P 5191 was riding on the wrong side. We, therefore, reject the said
contention of the learned counsel.
13. Adverting to the quantum Mr.A.Shajahan, learned
counsel appearing for the appellant-insurance company would
vehemently contend that the Tribunal erred in fixing the monthly income
at Rs.15,000/- (Rupees Fifteen Thousand only) based on Exs.P15 and
P17. He would contend that those documents have been produced for the
purpose of this case. Even if we are to reject those documents, the
accident having taken place in 2018 and the salary paid to the NMR
employees, employed in PWD which is more than Rs.600/- (Rupees Six
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C.M.A.(MD)No.734 of 2020
Hundred only) per day, we find that the fixation of Rs.15,000/- (Rupees
Fifteen Thousand only) as monthly income, is just and reasonable. We
do not see any ground to interfere with the said fixation.
14. On the other aspects, namely, adoption of future
prospects, deduction for personal expenses and application of multiplier,
the Tribunal has followed the judgment of the Hon’ble Supreme Court in
Pranay Sethi's Case (2017 ACJ – 2700) and Sarla Verma's case (2009
ACJ 1298). We therefore, do not see any reason to interfere with the said
fixation.
15. On the compensation under the non-conventional heads
also, we find that the amount granted by the Tribunal is within the limits
fixed by the Hon’ble Supreme Court in Pranay Sethi’s case. We
therefore, do not see any reason to interfere with the amount awarded by
the Tribunal.
16. In the result, the Civil Miscellaneous Appeal fails and
accordingly, the same is dismissed. However, in view of the fact that the
insurance company has established that the driver of the two wheeler
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C.M.A.(MD)No.734 of 2020
insured with the appellant did not possess a valid driving licence, it is
open to the insurance company to pay the award amount and recover it
from the owner of the two wheeler by executing the award against the
owner of the two wheeler. The insurance company shall deposit the
compensation within a period of eight (8) weeks from today, if not
already deposited. The apportionment made by the Tribunal is also
confirmed. No costs.
[R.S.M., J.] & [N.S.K., J.]
31.03.2022
Index:Yes/No
Internet:Yes/No
rm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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C.M.A.(MD)No.734 of 2020
To
1.The Additional District Judge,
Motor Accidents Claims Tribunal,
Theni.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)No.734 of 2020
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
rm
JUDGMENT IN
C.M.A.(MD)No.734 of 2020
31.03.2022
https://www.mhc.tn.gov.in/judis
