Madras High Court
The National Insurance Company ... vs Subbulakshmi on 6 September, 2022
C.M.A.No.2969 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.2969 of 2021 and
C.M.P.No.16932 of 2021
The National Insurance Company Limited,
Old No.144, New No.46,
III Floor,
Moore Street,
Chennai – 600 001. .. Appellant
Vs.
1.Subbulakshmi
2.Ishwariya
3.Minor. Shree Lokesh
(Minor 3rd respondent represented by
his mother and natural guardian,
Subbulakshmi, 1st respondent herein)
4.Sankar .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
04.12.2019, made in M.C.O.P.No.325 of 2017, on the file of the Motor
Accident Claims Tribunal, Additional District Court - Fast Track Court,
Kancheepuram.
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C.M.A.No.2969 of 2021
For Appellant : Mr.J.Michael Visuvasam
For RR 1 to 4 : No appearance
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.)
This Civil Miscellaneous Appeal has been filed by the appellant /
New India Insurance Company Limited against the judgment and decree
dated 04.12.2019, made in M.C.O.P.No.325 of 2017, on the file of the
Motor Accident Claims Tribunal, Additional District Court - Fast Track
Court, Kancheepuram.
2.The appellant is the 2nd respondent in M.C.O.P.No.325 of 2017,
on the file of the Motor Accident Claims Tribunal, Additional District
Court - Fast Track Court, Kancheepuram. The respondents 1 to 3 /
claimants filed the said claim petition, claiming a sum of
Rs.1,00,00,000/- as compensation for the death of one Iyappan, who died
in the accident that took place on 26.03.2017.
3.According to the respondents 1 to 3, on 26.03.2017 at about
06.30 a.m., while the deceased Iyappan was walking opposite to
Narayana Mastry House on the Ozalur – Chengalpet Road, the rider of
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C.M.A.No.2969 of 2021
the motorcycle bearing Registration No.TN 19 E 4742 belonging to 4th
respondent, drove the same at a colossal speed without following the
Motor Vehicle Rules, dashed against the said Iyappan and caused the
accident. In the accident, the said Iyappan sustained multiple injuries and
immediately after the accident, the said Iyappan was taken to Chengalpet
Medical College Hospital. Thereafter he was referred to Global Hospital
for further treatment. Insptie of medical treatment, the said Iyappan
succumbed to injuries on 28.03.2017. Hence, the respondents 1 to 3 filed
the claim petition claiming compensation against the 4th respondent and
appellant.
4.The 4th respondent - 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 3 in the claim
petition. The appellant denied the manner of accident as alleged by the
respondents 1 to 3. According to appellant, as per the AR copy, it was
very clear that a cow attacked the said Iyappan and therefore, it is not a
road accident case. The respondents 1 to 3, 4th respondent and the Police
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C.M.A.No.2969 of 2021
Official have colluded together with a view to get compensation from the
appellant, filed claim petition with false averments. The 4th respondent /
owner – cum – rider of the motorcycle was not possessing valid driving
license to drive the motorcycle at the time of accident and the motorcycle
was not insured with the appellant. Hence, the appellant is not liable to
pay any compensation to the respondents 1 to 3. The respondents 1 to 3
have wantonly and willingly caused delay in conducting the trial and
filing the case records. The interest for the period of delay from the date
of filing the counter till the date of judgment shall be waived. The
respondents 1 to 3 have to prove that they are the legal heirs of the
deceased. The appellant denied the age, avocation and income of the
deceased. In any event, the quantum of compensation claimed by the
respondents 1 to 3 is highly 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 Murali, eyewitness to the accident was examined as P.W.2 and
one Lawrance Daniel, Accountant of K.K.Corporation Ltd., was
examined as P.W.3 and 15 documents were marked as Exs.P1 to P15. The
appellant did not let in any oral and documentary evidence.
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C.M.A.No.2969 of 2021
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent
driving by the rider of the motorcycle belonging to 4th respondent and
directed the appellant-Insurance Company to pay a sum of
Rs.28,78,312/- as compensation to the respondents 1 to 3.
8.To set aside the said award dated 04.12.2019, made in
M.C.O.P.No.325 of 2017, the appellant has come out with the present
appeal.
9.The learned counsel appearing for the appellant-Insurance
Company contended that the deceased Iyappan sustained grievous
injuries only due to the attack of the cow and not due to road traffic
accident caused by the motorcycle belonging to 4th respondent. The
Tribunal failed to consider the fact that F.I.R. was registered after delay
of 36 hours of the accident by lodging a false complaint stating that the
accident has occurred only due to rash and negligent driving by the rider
of the motorcycle belonging to 4th respondent. Since the 4th respondent
and the victim hailed from the same village, the wife of the 4th respondent
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C.M.A.No.2969 of 2021
who was riding as pillion rider in the motorcycle, after much deliberation
was persuaded to give a false account of the alleged incident to the
Police as if their motorcycle dashed against the victim and the cow also
attacked the victim. The Tribunal failed to consider the credibility of the
evidence of eyewitness / P.W.2 with regard to the alleged accident. The
total compensation awarded by the Tribunal is highly excessive and
prayed for setting aside the award passed by the Tribunal.
10.Though notice has been served on the respondents 1 to 4 and
their names are printed in the cause list, there is no representation for
them, either in person or through counsel.
11.Heard the learned counsel appearing for the appellant –
Insurance Company and perused the entire materials on record.
12.From the materials on record, it is seen that it is the case of the
respondents 1 to 3 that while the deceased Iyappan was walking opposite
to Narayana Mastry House on the Ozalur – Chengalpet Road, the rider of
the motorcycle bearing Registration No.TN 19 E 4742 belonging to 4th
respondent, drove the same at a high speed without following the Motor
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C.M.A.No.2969 of 2021
Vehicle Rules, dashed against the said Iyappan and caused the accident.
In the accident, the said Iyappan sustained multiple injuries and inspite of
medical treatment, he died on 28.03.2017. To substantiate their case, the
1st respondent examined herself as P.W.1. She deposed as that of the
averments in the claim petition. She also relied on Ex.P1/FIR, which was
registered against the 4th respondent / rider – cum – owner of the
motorcycle. P.W.1 is not an eyewitness to the accident. The respondents 1
to 3 also examined one Murali, eyewitness to the accident as P.W.2, who
deposed that the accident has occurred only due to rash and negligent
driving by the 4th respondent – rider of the motorcycle.
12(i). On the other hand, it is the case of the appellant that 4 th
respondent was not responsible for the accident and the deceased
Iyappan was not injured in the alleged accident caused by the 4th
respondent. According to appellant, the deceased got injured by a cow
and he died due to the said injuries. They have not marked any document
and not examined any Doctor who recorded the statement based on
which the Accident Register was recorded. The appellant has not
produced any material to show as to who took the injured victim to the
Hospital and admitted him. There is nothing on record to show that who
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C.M.A.No.2969 of 2021
gave the statement to the Hospital. It is on record that both the 4 th
respondent and his wife, who was riding as pillion in the motorcycle are
also admitted in the Hospital for the injuries sustained by them. It is not
the case of the appellant that the 4th respondent and his wife were also got
injured by attack of cow. It is the further case of the appellant that the 4th
respondent and respondents 1 to 3 are residing in the same village,
colluded together and made a false claim against the appellant to get the
compensation. The appellant has stated that they are going to take
criminal action against the respondents for making a false claim. The
appellant has not examined any witness to show that the deceased was
injured when the cow attacked him. The appellant also failed to prove
that the respondents 1 to 4 colluded together and made a false claim
against the appellant. Even though the appellant has stated that they are
going to take action against the respondents, they have not produced any
materials to show that they lodged a complaint with the concerned Police
against the respondents 1 to 4.
12(ii). Considering the evidence of P.W.2 / eyewitness and in the
absence of any evidence to disprove the evidence of P.W.2, the Tribunal
has held that the accident has occurred only due to rash and negligent
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C.M.A.No.2969 of 2021
driving by the 4th respondent. There is no error in the said finding of the
Tribunal warranting interference by this Court.
13.As far as quantum of compensation is concerned, it is the case
of the respondents 1 to 3 that at the time of accident, the deceased was
working as Deputy Manager at K.K.Corporation Company Ltd., and was
earning a sum of Rs.40,000/- per month. To prove their case, the
respondents 1 to 3 examined one Lawrance Daniel, who was working as
Accountant at K.K.Corporation Company Ltd., as P.W.3 and marked
Ex.P12 / salary certificate of the deceased, Ex.P14 / Bank statement of
the deceased. P.W.3 in his evidence has deposed that the deceased was
getting a sum of Rs.21,000/- per month as salary. As per Ex.P14 / Bank
statement, the monthly income of the deceased was Rs.21,602/-. The
Tribunal considering the evidence of P.W.3 and Ex.P14, fixed a sum of
Rs.21,602/- as monthly income of the deceased and the same is proper.
The deceased was aged 47 years at the time of accident and the Tribunal
has rightly granted 25% enhancement towards future prospects and
applied multiplier '13' and awarded a sum of Rs.28,08,312/- towards loss
of dependency and the same is not excessive. The Tribunal considering
the entire materials on record, has awarded a sum of Rs.28,78,312/- as
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C.M.A.No.2969 of 2021
compensation to the respondents 1 to 3, which is not excessive and
hence, the same is hereby confirmed.
14.In the result, this Civil Miscellaneous Appeal is dismissed and a
sum of Rs.28,78,312/- awarded by the Tribunal as compensation to the
respondents 1 to 3, 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.325 of 2017, on the file of the
Motor Accident Claims Tribunal, Additional District Court - Fast Track
Court, Kancheepuram. On such deposit, the respondents 1 & 2 are
permitted to withdraw their respective share of the award amount now
determined by this Court as per the ratio of apportionment fixed by the
Tribunal, along with proportionate interest and costs, less the amount if
any, already withdrawn by making necessary applications before the
Tribunal. The share of the minor 3rd respondent is directed to be
deposited in any one of the Nationalized Banks, till the minor 3rd
respondent attains majority. On such deposit, the 1st respondent, being the
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C.M.A.No.2969 of 2021
Mother of the minor 3rd respondent is permitted to withdraw the accrued
interest once in three months for the welfare the minor 3rd respondent.
Consequently the connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (V.S.G., J)
06.09.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The Additional District Judge,
Motor Accidents Claims Tribunal,
Fast Track Court,
Kancheepuram.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.2969 of 2021
V.M.VELUMANI, J.
and
V.SIVAGNANAM, J.
krk
C.M.A.No.2969 of 2021
06.09.2022
https://www.mhc.tn.gov.in/judis
