Madras High Court
R.Sai Sumathi vs R.Karunanithi on 29 November, 2022
C.M.A.Nos.2698 & 1961 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.11.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.Nos.2698 and 1961 of 2021
and
C.M.P.No.10572 of 2021
C.M.A.No.2698 of 2021
1.R.Sai Sumathi
2.S.Abinaya
3.S.Agalya
4.R.Thirugnanamoorthy
5.K.Lilli Ammal ... Appellants
Vs.
1.R.Karunanithi
2.United India Insurance Company Ltd.,
Third Party Service Hub, Plot Nos.35,36,37
A R Plaza, 45 Feet Road,
Balaji Nagar Extn, Saram
Pondicherry – 605011. ... Respondents
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C.M.A.Nos.2698 & 1961 of 2021
PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and decree dated 16.10.2020
made in M.C.O.P.No.163 of 2017 on the file of Motor Accident Claims Tribunal,
Special Sub-ordinate Judge, Cuddalore.
For Appellants : M/s.Ramya V.Rao
For Respondents : R1 – Notice - Refused.
Mr.P.Sankaranarayanan for R2.
C.M.A.No.1961 of 2021
M/s.United India Insurance Co.Ltd.,
Motor Third Party Service Hub,
A.R.Plaza, No.35,36 & 37,
45 feet Road, Balaji Nagar Extn, Saram
Puducherry-605 011 . ... Appellant
Vs.
1.R.Sayee Sumathy
2.S.Abinaya
3.S.Akalya
4.R.Thirugnanamoorthy
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C.M.A.Nos.2698 & 1961 of 2021
5.K.Lilliyammal
6.R.Karunanithi ... Respondents
PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and decree dated 16.10.2020
made in M.C.O.P.No.163 of 2017 on the file of Motor Accident Claims Tribunal,
Special Sub-ordinate Judge, Cuddalore.
For Appellants : Mr.P.Sankaranarayanan
For Respondents : M/s.Ramya V.Rao for R1 to R5.
R6 – Notice - refused.
COMMONJUDGMENT
(Judgment of the Court was delivered by SUNDER MOHAN,J.)
C.M.A.No.2698 of 2021 is filed by the claimants for enhancement of
compensation granted by the Tribunal in the award dated 16.10.2020 made in
M.C.O.P.No.163 of 2017 on the file of Motor Accident Claims Tribunal, Special
Sub-ordinate Judge, Cuddalore and C.M.A.No.1961 of 2021 is filed by the
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C.M.A.Nos.2698 & 1961 of 2021
Insurance Company against the award dated 16.10.2020 made in M.C.O.P.No.163
of 2017 on the file of Motor Accident Claims Tribunal, Special Sub-ordinate
Judge, Cuddalore.
2.Both the appeals arise out of the same accident and same award and
hence, they are disposed of by this common judgment. Parties in these appeals are
hereinafter referred to by their rank in the appeal in C.M.A.No.2698 of 2021. (for
the sake of convenience)
3.The Appellants filed M.C.O.P.No.163 of 2017 on the file of Motor
Accident Claims Tribunal, Special Sub-ordinate Judge, Cuddalore, claiming a sum
of Rs.40,00,000/- as compensation for the death of T.Sudhanthiran, who died in
the accident that took place on 15.10.2016.
4.The appellants are wife, children and parents of the deceased
Sudhanthiran. It is the case of the appellants that on 15.10.2016 at about 3.00 a.m,
the deceased was traveling in Maruthi Alto car bearing Registration No. TN-22-
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C.M.A.Nos.2698 & 1961 of 2021
AX-8759 driven by one Shamsudeen on the Kumbakonam - Chennai Main road
NH-45. A tipper lorry bearing Registration No.TN-31-M-1801 was parked in the
center of the said road near Karaimedu Mariyamman Temple, without following
the traffic rules and without any parking lights. The driver of the car could not see
the tipper lorry at the center of the road, since it was dark and hence dashed
against the parked tipper lorry from behind. In the said impact, the deceased
sustained multiple injuries and succumbed injuries on the same day. The
appellants therefore filed the claim petition claiming a sum of Rs.40,00,000/- as
compensation against the owner of the Tipper lorry and the Second Respondent /
Insurance company.
5.The First Respondent / owner of the vehicle remained exparte before the
Tribunal.
6.The second respondent / insurance company filed counter denying the
allegations in the claim petition. The second respondent has stated that the vehicle
was parked on the road properly and further stated that a stationary vehicle cannot
be held to be liable as per the Motor Vehicles Act. The second respondent also
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C.M.A.Nos.2698 & 1961 of 2021
disputed the claim with regard to the income earned by the deceased and prayed
for dismissing the claim petition.
7.Before the Tribunal, the appellants examined the first appellant as P.W.1
and one Shamsudeen, the driver of the car as P.W.2, and marked Exs.P1 to Ex.P.10.
The respondents examined the Police Inspector as R.W.1 and marked Exs.R.1 to
R.3.
8.The Tribunal on considering the pleadings, oral and documentary evidence
held that the accident was caused on account of the negligent act of the driver of
the tipper lorry and directed the second respondent / insurance company to pay the
compensation of Rs.25,18,750/- to the appellants.
9.Not being satisfied with the amounts awarded by the Tribunal, the
appellants have filed the appeal in C.M.A.No.2698 of 2021 seeking enhancement
of compensation and the second respondent / insurance company has filed the
appeal in C.M.A.No.1961 of 2021 challenging the finding on negligence and the
quantum awarded by the Tribunal.
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C.M.A.Nos.2698 & 1961 of 2021
10.The learned counsel appearing for the second respondent / insurance
company submitted that the report of the Motor Vehicle Inspector shows that the
tipper lorry was damaged on the front side and therefore the version of the
appellants that the car came from behind and collided with the stationary lorry
cannot be accepted and as per the report of the Motor Vehicle Inspector, it could
be a head on collision. The Inspector of Police who conducted the investigation
filed a final report to the effect that the accident took place due to the rash and
negligent act of the driver of the Maruthi Alto Car. Therefore, the version of the
appellants that the lorry was parked in the middle of the road and the accident took
place on account of the negligent act of the driver of the Tipper lorry cannot be
believed. The learned counsel submitted that in any event the award of the
Tribunal under the head 'loss of love and affection' at Rs.2,50,000/- is not correct
and therefore, it has to be set aside. The appellants are entitled to only
Rs.2,00,000/- towards consortium to wife, parental consortium for appellants 2
and 3 and filial consortium for appellants 4 and 5. The appellants are not entitled
to any compensation under the head 'loss of love and affection' and the same has to
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C.M.A.Nos.2698 & 1961 of 2021
be set aside. Hence, he prayed for allowing the C.M.A.No.1961 of 2021 and
dismissing C.M.A.No.2698 of 2021 filed by the appellants for enhancement.
11.The learned counsel for the appellants submitted that the second
respondent / insurance company, in their counter, admitted that the tipper lorry was
parked on the road. This version is contrary to the present stand of the second
respondent / insurance company that it was a head on collision. The learned
counsel for the appellants further submitted that R.W.1 in the cross examination
had admitted that he had not stated in which direction the lorry was parked.
Therefore, this explains as to why there was damage on the front side of the lorry.
P.W.2, driver of the Alto car in which the deceased travelled, had stated that the
tipper lorry which came from the opposite direction, was parked in violation of the
traffic rules. This also explains as to why the front side of the lorry was damaged
as per the report of the Motor Vehicle Inspector. The learned Counsel for the
appellants further submitted that the quantum awarded by the Tribunal is
inadequate and it has to be enhanced. Hence, he prayed for allowing
C.M.A.No.2698 of 2021 and dismissing C.M.A.No.1961 of 2021 filed by the
second respondent / insurance company.
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C.M.A.Nos.2698 & 1961 of 2021
12.Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the second respondent / Insurance Company and
perused the pleadings, evidence and documents on record.
13.The main contention of the second respondent / insurance company is
that as per the report of the Motor Vehicle Inspector, the front side of the tipper
lorry was damaged. The version of the appellants that the car came from behind
and collided with the stationary lorry is impropable. We find that the evidence on
record elicited through PW2 and RW1, dispels the submission of the learned
Counsel for the second respondent / insurance company. PW2, the driver of the
Alto car had stated in his evidence that the tipper lorry which came from the
opposite direction was parked in the middle of the road. Further, RW1, Police
Inspector who conducted the investigation had admitted in the cross examination
that he had not specifically noted the direction in which the tipper lorry was
parked. Therefore, the evidence of PW2 and RW1 confirms that the tipper lorry
was parked in the opposite direction and hence the front side of the tipper lorry
was damaged because of the collision. That apart, it is the specific case of the
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C.M.A.Nos.2698 & 1961 of 2021
second respondent / insurance company in the counter filed before the Tribunal
that the tipper lorry was parked and a parked vehicle cannot be liable for
negligence. This is contrary to the present stand taken by the second respondent /
insurance company that it could have been a head on collision. The evidence of
PW2 has not been contradicted by the second respondent / insurance company by
letting in any evidence. Therefore, we are of the view that the finding of
negligence by the Tribunal is justified and does not call for any interference.
14.As regards the quantum, we find that the compensation awarded under
the head 'Loss of Love and Affection' is Rs.2,50,000/-. However, parental
consortium and filial consortium have not been awarded to the appellants 2 to 5.
Therefore, the compensation under the head 'Loss of Love and Affection' is set
aside. Instead, parental consortium for appellants 2 and 3 is awarded at
Rs.40,000/- each and filial consortium for appellants 4 and 5 is awarded at
Rs.40,000/- each. The first appellant has already been granted Rs.40,000/- under
the head 'Loss of Consortium' and the same is corrrect. The appellants claimed
that at the time of accident, the deceased was doing electrical contract work and
earning Rs.33,100/- per month and marked Ex.P.9 salary certificate to that effect.
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C.M.A.Nos.2698 & 1961 of 2021
However, the author of the document was not examined to prove the income of the
deceased. In the absence of any document, the Tribunal had fixed the monthly
income of the deceased at Rs.15,000/-. As per Ex.P.3, the deceased was aged 48
years at the time of accident. Following the Judgments of the Hon'ble Apex Court
in Judgment reported in (2017) 16 SCC 680 [National Insurance Company Ltd.,
Vs.Pranay Sethi and others] and the Judgment reported in 2009 (2) TN MAC 1
(SC): [Sarala Verma and others Vs. Delhi Transport Corporation and another],
the Tribunal has rightly granted 25% towards future prospects and applied
multiplier '13'. We see no reason to interfere with the said finding. The amounts
awarded by the Tribunal under all other heads are just and reasonable and hence,
they are hereby confirmed. Thus, the compensation awarded by the Tribunal is
modified as follows:
S.No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of Income 21,93,750/- 21,93,750/- confirmed
2. Love and affection 2,50,000/- --- Set aside
3. Funeral Expenses 15,000/- 15,000/- confirmed
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C.M.A.Nos.2698 & 1961 of 2021
4. Transport charges 5,000/- 5,000/- confirmed
5. Loss of Estate 15,000 15,000/- confirmed
6. Loss of consortium 40,000/- 40,000/- confirmed
7 Loss of Parental ---- 80,000/- granted
Consoritum
8 Loss of Filial ---- 80,000/- granted
Consortium
Total 25,18,750/- 24,28,750/- Reduced by
Rs.90,000/-
15.With the above modification, the Appeal in C.M.A.No.2698 of 2021 filed
by the appellants is dismissed and the Appeal in C.M.A.No.1961 of 2021 filed by
the Insurance Company is partly allowed. The compensation of Rs.25,18,750/-
granted by the Tribunal is hereby reduced to Rs.24,28,750/- together with interest
at the rate of 7.5% per annum from the date of petition till the date of deposit. The
second respondent / Insurance Company is directed to deposit the award amount
now determined by this Court along with interest and costs, less the amount
already deposited within a period of six (6) weeks from the date of receipt of a
copy of this Judgment. On such deposit the appellants are permitted to withdraw
their respective share of the award amount as per the direction and apportionment
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C.M.A.Nos.2698 & 1961 of 2021
fixed by the Tribunal, along with proportionate interest and costs, less the amount
if any, already withdrawn. The second respondent / Insurance Company is
permitted to withdraw the excess amount, if the entire award amount has already
been deposited by them. No costs. Consequently, connected Miscellaneous
Petition is closed. No costs.
(V.M.V., J) (S.M., J)
29.11.2022
vsn/ay
Index : Yes / No
To
1.The Special Sub-ordinate Judge,
Motor Accident Claims Tribunal,
Cuddalore.
2.The Section Officer,
VR Section,
High Court of Madras,
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C.M.A.Nos.2698 & 1961 of 2021
Chennai.
V.M.VELUMANI,J.
and
SUNDER MOHAN,J.
vsn/ay
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2698 & 1961 of 2021
C.M.A.Nos.2698 and 1961 of 2021
and C.M.P.No.10572 of 2021
29.11.2022
https://www.mhc.tn.gov.in/judis
