Madras High Court
New India Assurance Co. Ltd vs Sarala on 15 September, 2022
C.M.A.No.2002 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A. No.2002 of 2022
and C.M.P.No.15234 of 2022
New India Assurance Co. Ltd.,
Rep. By its Manager,
CMTS Bhavan, 70 feet Road,
Ellis Nagar, Madurai. .. Appellant
Vs.
1.Sarala
2.Karthik
3.M.Saravana .. Respondents
(R3 was set exparte before the Tribunal.)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 07.04.2021, made
in M.C.O.P. No.807 of 2019, on the file of the Special District Court, (Motor
Accident Claims Tribunal), Krishnagiri.
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C.M.A.No.2002 of 2022
For Appellant : Mr.C.Ramesh Babu
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 07.04.2021,
made in M.C.O.P. No.807 of 2019, on the file of the Special District Court,
(Motor Accident Claims Tribunal), Krishnagiri.
2.The appellant is the 2nd respondent in M.C.O.P. No.807 of 2019, on
the file of the Special District Court, (Motor Accident Claims Tribunal),
Krishnagiri. The respondents 1 and 2/claimants filed the said claim petition,
claiming a sum of Rs.50,00,000/- as compensation for the death of one
Dinesh Babu who died in the accident that took place on 15.04.2018.
3.According to the respondents 1 and 2, on the date of accident, the
deceased Dinesh Babu was returning from Ambur to go to Bangalore in a
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C.M.A.No.2002 of 2022
Motorcycle bearing Registration No.KA-05-KJ-0573, slowly and carefully,
observing all the rules of the road. At about 22.30 hours, while he was
proceeding in Krishnagiri to Hosur National Highways road, infront of Old
RTO office flyover bridge, the driver of the Lorry bearing Registration
No.TN-52-T-3839 owned by the 3rd respondent who was driving behind the
Motorcycle of the deceased without observing any rules of the road in a rash
and negligent manner, drove the same in high speed, without making any
horn sound, lost control and hit behind the Motorcycle and caused the
accident. In the accident, the said Dinesh Babu sustained fatal injuries and
died in the Apollo Hospital, Bangalore on 24.04.2018. The accident occurred
only due to rash and negligent driving by driver of the Lorry owned by the 3 rd
respondent and hence, the respondents 1 and 2 filed the said claim petition
claiming compensation against the 3rd respondent and appellant-Insurance
Company as owner and insurer of the Lorry respectively.
4.The 3rd respondent, owner of the Lorry, remained exparte before the
Tribunal.
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C.M.A.No.2002 of 2022
5.The appellant, insurer of the Lorry, filed counter statement and
denied all the averments made by the respondents 1 and 2 in the claim
petition. According to the appellant-Insurance Company, on the date of
accident, the driver of the Lorry was driving the vehicle slowly and
cautiously in the flyover bridge leading to Bangalore. The deceased Dinesh
Babu who was riding the Motorcycle from Ambur to go to Bangalore was
already tired as he was driving for more than 4 hours on the same day. The
deceased after finishing his work, again started on the same day from Ambur
to reach Bangalore. Hence due to extreme tiredness, he lost control of his
vehicle, deviated from his path, came to the middle of the road and invited
the accident. The accident occurred only due to rash and negligent riding by
the deceased Dinesh Babu. Moreover, the driver of the Lorry did not possess
valid and effective driving license to ply the vehicle at the time of accident.
Hence, for such breach of policy conditions, the appellant as insurer of the
said Lorry is not liable to indemnify the 3rd respondent. In any event, the
respondents 1 and 2 have to prove the age, avocation and income, Income
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C.M.A.No.2002 of 2022
Tax paid by the deceased Dinesh Babu to claim compensation and prayed for
dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1,
one Syed Mansoor, Employer of the deceased was examined as P.W.2, one
Sekar, eye-witness to the accident was examined as P.W.3 and 18 documents
were marked as Exs.P1 to P18. The appellant did not let in any oral and
documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
driver of the Lorry owned by the 3rd respondent and fixed 10% contributory
negligence on the part of the deceased Dinesh Babu for not possessing valid
driving license at the time of accident and 90% negligence on the part of the
driver of the Lorry. The Tribunal awarded a sum of Rs.27,00,400/- as
compensation and directed the appellant as insurer of the said vehicle to pay a
sum of Rs.24,30,360/-, being 90% of the compensation to the respondents 1
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C.M.A.No.2002 of 2022
and 2.
8.Against the said award of the Tribunal dated 07.04.2021, made in
M.C.O.P. No.807 of 2019, the appellant - Insurance Company has come out
with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company
contended that the accident occurred only due to rash and negligent riding of
Motorcycle by the deceased Dinesh Babu. The Tribunal erroneously held that
the accident occurred due to negligence of the driver of the Lorry and there is
possibility of contributory negligence on the part of the deceased Dinesh
Babu, erred in fixing only 10% contributory negligence on the part of the
deceased Dinesh Babu for not possessing driving license at the time of
accident. The deceased Dinesh Babu died as a bachelor. The Tribunal
erroneously deducted 1/3rd towards personal expenses of the deceased instead
of deducting 50% and awarded excessive amount as compensation towards
loss of dependency. The total compensation awarded by the Tribunal under
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C.M.A.No.2002 of 2022
different heads are excessive and prayed for setting aside the award of the
Tribunal.
10.Heard the learned counsel appearing for the appellant-Insurance
Company and perused the entire materials available on record.
11.From the materials on record, it is seen that it is the case of the
respondents 1 and 2 that on the date of accident, when the deceased Dinesh
Babu was riding the Motorcycle in Krishnagiri to Hosur National Highways
road, infront of Old RTO office flyover bridge, the driver of the Lorry owned
by the 3rd respondent who was driving in a rash and negligent manner,
without observing any rules of the road, lost control and hit behind the
Motorcycle and caused the accident. To substantiate their case, the 1 st
respondent examined herself as P.W.1, examined eye-witness to the accident
as P.W.3 and marked the FIR as Ex.P1. Deposition of P.W.3 corroborated with
the contents of FIR. On the other hand, it is the case of the appellant-
Insurance Company that the accident occurred only due to the negligent act
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C.M.A.No.2002 of 2022
of the deceased Dinesh Babu who due to tiredness, lost control of his
Motorcycle, deviated from his path, came to the middle of the road and
invited accident. To substantiate their case, they have not examined the driver
of the Lorry or any other eye-witness to disprove the evidence of P.W.3. In
the absence of any contra evidence to the evidences of 1st respondent as
P.W.1, P.W.3 – eye witness to the accident, the Tribunal considering the
evidences of P.W.1 and P.W.3, Ex.P1 – FIR, held that the accident occurred
only due to rash and negligent driving by driver of the Lorry owned by the 3 rd
respondent. The Tribunal considering the fact that the respondents 1 and 2
failed to prove that the deceased Dinesh Babu was possessing valid driving
license to ply the vehicle at the time of accident, fixed 10% contributory
negligence on the part of the deceased Dinesh Babu. There is no error in the
said finding of the Tribunal warranting interference by this Court.
12.As far as the quantum of compensation is concerned, it is case of the
respondents 1 and 2 that at the time of accident, the deceased was aged 34
years and was working as a Senior Marketing Manager at Delta Company,
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Bangalore and was earning a sum of Rs.50,000/- per month. To prove the
same, they have examined P.W.2 – Manager of the said company and marked
Ex.P14 - Authorization letter, Ex.P15 - Registration certificate of the
Company, Ex.P16 – Attendence Register, Ex.P17 – appointment order and
Ex.P18 – salary certificate issued by the said Company. The Tribunal,
considering the fact that except filing Ex.P17 – appointment letter, no other
material documents like payment register, payment receipt and relevant
registers were produced by the respondents 1 and 2 and in the absence of any
Income Tax Receipt, considering the year of accident, fixed the notional
income of the deceased Dinesh Babu at Rs.12,000/- per month. The accident
is of the year 2018. Considering the year of accident and nature of work done
by the deceased Dinesh Babu, the monthly income fixed by the Tribunal is
meagre. The Tribunal though rightly granted 40% enhancement towards
future prospects of the deceased, erroneously deducted 1/3rd towards personal
expenses. The deceased was a bachelor at the time of accident. As per the
judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC
Supreme Court [Sarla Verma & others vs. Delhi Transport Corporation &
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another], the Tribunal ought to have deducted 50% towards personal
expenses of the deceased in awarding compensation towards loss of
dependency. In view of the negligence fixed on the part of the deceased
Dinesh Babu and fact that the monthly income fixed by the Tribunal is
meagre, the deduction of 1/3rd made by the Tribunal towards personal
expenses of the deceased is not interfered with. The total compensation
awarded by the Tribunal under different heads are not excessive, warranting
interference by this Court.
13.In the result, the appeal is dismissed and the amount awarded by the
Tribunal at Rs.27,00,400/- 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 a sum of Rs.24,30,360/-,
being 90% of the award amount together with interest and costs, 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.807 of
2019. On such deposit, the respondents 1 and 2 are permitted to withdraw
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C.M.A.No.2002 of 2022
their share of the award amount, along with proportionate interest and costs,
as per the apportionment fixed by the Tribunal, after adjusting the amount, if
any, already withdrawn, by filing necessary applications before the Tribunal.
Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (V.S.G., J)
15.09.2022
Index : Yes/No
Speaking Order : Yes/No
gsa
To
1.The District Judge,
Special Sub Court,
(Motor Accident Claims Tribunal),
Krishnagiri.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.No.2002 of 2022
V.M.VELUMANI, J.
and
V.SIVAGNANAM, J.
(gsa)
C.M.A. No.2002 of 2022
15.09.2022
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