Madras High Court
The Divisional Manager vs Sakunthala on 19 September, 2022
C.M.A.Nos.2030 & 2033 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A. Nos.2030 & 2033 of 2022
and C.M.P.Nos.15550 & 15559 of 2022
The Divisional Manager,
United India Insurance Company Limited,
Divisional Office, Dr.Sankaran Road,
Namakkal 637 001. .. Appellant in both appeals
Vs.
1.Sakunthala
2.K.Murugan
3.M.Sasi Kumar .. Respondents in C.M.A.No.2030/2022
1.Sakunthala
2.Minor Hemamma
(rep. by her next friend/mother, R1)
3.Chinnaraj
4.Dhanalakshmi
5.K.Murugan
6.M.Sasi Kumar .. Respondents in C.M.A.No.2033/2022
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C.M.A.Nos.2030 & 2033 of 2022
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the common judgment and decree
dated 08.03.2021, made in M.C.O.P. Nos.434 & 540 of 2019, on the file of
the Special District Court, (Motor Accident Claims Tribunal), Krishnagiri.
For Appellant : Mr.N.Somasundaar (In both appeals)
COMMON JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
These Civil Miscellaneous Appeals have been filed by the appellant-
Insurance Company against the common judgment and decree dated
08.03.2021, made in M.C.O.P. Nos.434 & 540 of 2019, on the file of the
Special District Court, (Motor Accident Claims Tribunal), Krishnagiri.
2.Both the appeals arise out of the same accident and common award
and hence, disposed of by this common judgment.
3.The appellant in both the appeals is the 3rd respondent in M.C.O.P.
Nos.434 & 540 of 2019, on the file of the Special District Court, (Motor
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C.M.A.Nos.2030 & 2033 of 2022
Accident Claims Tribunal), Krishnagiri. The 1st respondent in
C.M.A.No.2030 of 2022/claimant filed M.C.O.P.No.434 of 2019, claiming a
sum of Rs.15,00,000/- as compensation for the death of one Minor Hema who
died in the accident that took place on 04.07.2013. The respondents 1 to 4 in
C.M.A.No.2033 of 2022/claimants filed M.C.O.P.No.540 of 2019, claiming a
sum of Rs.40,00,000/- as compensation for the death of one Kanagaraj who
died in the same accident.
4.For the sake of convenience, the parties are referred to as per their
rank in the claim petitions.
5.According to the claimant/claimants, on the date of accident, at about
17.15 hours, when the deceased Kanagaraj was riding a Motorcycle bearing
Registration No.TN-83-W-8649 along with his wife and two minor daughters,
near Puliyarasi Bus stop in Hosur to Krishnagiri National Highways road, the
1st respondent, driver of the Tanker Lorry bearing Registration No.TN-28-
AB-5410 owned by the 2nd respondent, who was coming behind the
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C.M.A.Nos.2030 & 2033 of 2022
Motorcycle in the center track suddenly while overtaking the Motorcycle,
came to the left side and stopped in the left side track blocking the
Motorcycle. The deceased Kanagaraj/rider of the Motorcycle, without
anticipating the sudden stoppage of the Tanker Lorry in front of his
Motorcycle without any signal, dashed on the backside of the Tanker Lorry
and fell down. In the accident, the said Kanagaraj and his minor daughter
Hema sustained fatal injuries and his wife Sakunthala sustained facial
injuries. The accident occurred only due to the negligent act of the 1 st
respondent/driver of the Tanker Lorry owned by the 2nd respondent and
hence, the wife/claimant in M.C.O.P.No.434 of 2019 and claimants in
M.C.O.P.No.540 of 2019 filed the said claim petitions claiming compensation
for the death of Kanagaraj and Minor Hema respectively against the
respondents 1 to 3 as driver, owner and insurer of the Tanker Lorry
respectively.
6.The respondents 1 and 2, driver and owner of the Tanker Lorry
respectively, remained exparte before the Tribunal.
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7.The 3rd respondent, insurer of the Tanker Lorry, filed separate counter
statements and denied all the averments made by the claimant/claimants in
both the claim petitions. According to the 3rd respondent-Insurance Company,
on the date of accident, at about 17.15 hours, when the deceased Kanagaraj
was riding the Motorcycle along with his wife and two minor daughters as
pillion riders near Puliyarasi Bus Stop in Hosur to Krishnagiri NH Road, in
the middle of the road, the deceased Kanagaraj suddenly fell ill (affected by
Fits) and thereby lost control of his Motorcycle and dashed on the backside of
the parked Tanker Lorry. The said Tanker Lorry owned by the 2nd respondent
was parked in the mud road only and accident did not take place in the middle
of the road. Further, the said Kanagaraj rode the Motorcycle in a rash and
negligent manner without observing traffic rules of the road and without
wearing helmet. At the time of accident, four persons traveled in the
Motorcycle as against policy conditions. The accident occurred only due to
negligence of the deceased Kanagaraj, rider of the Motorcycle. Had he driven
the vehicle keeping 30 metres distance between two vehicle, the accident
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would have been avoided. FIR was registered against the deceased Kanagaraj
after proper enquiry. Hence, the 3rd respondent-Insurance Company is not
liable to pay any compensation to the claimant/claimants. The claim petitions
are bad for non-joinder of owner and insurer of the Motorcycle. In any event,
the total compensation claimed by the claimant/claimants in both the claim
petitions are exhorbitant and prayed for dismissal of the claim petitions.
8.Before the Tribunal, Sakunthala/wife of the deceased Kanagaraj
examined herself as P.W.1 in M.C.O.P.No.540 of 2019 and P.W.2 in
M.C.O.P.No.434 of 2019, one Raja, eye-witness to the accident was examined
as P.W.3 and one Madheswaran, SSI of Police, Guruparapalli Police Station
was examined as P.W.4. 17 documents in M.C.O.P.No.540 of 2019 were
marked as Exs.P1 to P17, 4 documents in M.C.O.P.No.434 of 2019 were
marked as Exs.P18 to P20 and 8 documents were marked as Exs.P21 to P28
in both the M.C.O.Ps. The 3rd respondent-Insurance Company examined their
Divisional Manager as R.W.1 and marked one document as Ex.R1.
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9.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by the 1st respondent/driver of the Tanker Lorry owned by the 2nd
respondent and directed the 3rd respondent as insurer of the said vehicle to
pay a sum of Rs.22,01,205/- as compensation to the claimants in
M.C.O.P.No.540 of 2019 and Rs.8,79,536/- to the claimant in
M.C.O.P.No.434 of 2019.
10.Against the said common award of the Tribunal dated 08.03.2021,
made in M.C.O.P. Nos.434 & 540 of 2019, the 3rd respondent - Insurance
Company has come out with the present two appeals.
11.The learned counsel appearing for the 3rd respondent - Insurance
Company contended that when the deceased Kanagaraj, without wearing
helmet, was riding the Motorcycle along with his wife and two minor
daughters as pillion riders near Puliyarasi Bus Stop in Hosur to Krishnagiri
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NH Road, in the middle of the road, suddenly fell ill (affected by Fits) and
thereby lost control of his Motorcycle and dashed on the backside of the
parked Tanker Lorry. The said Tanker Lorry owned by the 2nd respondent was
parked in the mud road only and accident did not take place in the middle of
the road. But for the negligent act of the deceased Kanagaraj, the accident
would not have occurred. FIR is registered only against the deceased
Kanagaraj. P.W.1 - Sakunthala did not lodge any complaint as agains the
Lorry driver. The alleged eye-witness to the accident viz., P.W.3 is a stock
witness. The Tribunal considering the evidence of R.W.1 and Ex.R1, ought
not to have believed the evidences of P.W.1 to P.W.3. The Tribunal without
fixing contributory negligence on the part of deceased Kanagaraj, erred in
fixing the entire negligence on the part of the 1st respondent/driver of the
Tanker Lorry. In the absence of any proof by the claimants in
M.C.O.P.No.540 of 2019 with regard to the age, avocation and income of the
deceased Kanagaraj, the Tribunal erred in fixing a sum of Rs.9,000/- per
month as notional income and granting 40% enhancement towards future
prospects. The Tribunal having found that the deceased Hema in
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M.C.O.P.No.434 of 2019 was aged 4 years at the time of accident, ought not
to have fixed a sum of Rs.60,000/- as notional annual income for awarding
compensation towards loss of dependency, as against the judgment of the
Hon'ble Apex Court reported in 2021 (1) TNMAC 785 [Rajendra Singh Vs.
National Insurance Co. Ltd.]. The total compensation granted by the
Tribunal in both the claim petitions are excessive and prayed for setting aside
the common award of the Tribunal.
12.Heard the learned counsel appearing for the 3rd respondent -
Insurance Company and perused the entire materials available on record.
13.From the materials on record, it is seen that it is the case of the
claimants/claimant in both the claim petitions that while the deceased
Kanagaraj was riding the Motorcycle along with his wife and two minor
daughters near Puliyarasi Bus stop in Hosur to Krishnagiri National
Highways road, the 1st respondent/driver of the Tanker Lorry owned by the 2nd
respondent, drove the same behind the Motorcycle in the center track and
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suddenly while overtaking the Motorcycle, came to the left side and stopped
in the left side track blocking the Motorcycle without any signal. The
deceased Kanagaraj/rider of the Motorcycle, without anticipating the sudden
stoppage of the Tanker Lorry in front of his Motorcycle without any signal,
dashed on the backside of the Tanker Lorry and fell down. In the accident, the
said Kanagaraj and his minor daughter Hema sustained fatal injuries and his
wife Sakunthala sustained facial injuries. To substantiate their case,
Sakunthala examined herself as P.W.1 in M.C.O.P.No.540 of 2019 and P.W.2
in M.C.O.P.No.434 of 2019. One Raja, eye-witness to the accident was
examined as P.W.3, who deposed to that of the averments in the claim
petitions. It is the case of the 3rd respondent - Insurance Company that on the
date of accident, the deceased Kanagaraj who was riding the Motorcycle
along with his wife and two minor daughters as pillion riders, without
wearing helmet, near Puliyarasi Bus Stop in Hosur to Krishnagiri NH Road,
in the middle of the road, suddenly fell ill (affected by Janni) and lost control
of his Motorcycle and dashed on the backside of the Tanker Lorry, which was
parked in the mud road. The accident occurred only due to rash and negligent
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riding of Motorcycle by the deceased Kanagaraj, who traveled along with
three pillion riders, as against the Motor Vehicle Rules. FIR was also
registered against the deceased Kanagaraj. Except examining their Divisional
Manager as R.W.1, to substantiate their case, the 3rd respondent did not
examine the driver of Tanker Lorry or any eye-witness to disprove the
evidences of P.W.1 to P.W.3. It is well settled that the contents of FIR is not a
conclusive proof for the manner in which the accident occurred or for fixing
negligence. At the same time, it has to be taken into consideration along with
other evidences let in before the Tribunal to fix negligence. The Tribunal
considering the evidences of P.W.1 to P.W.3, Ex.P1 – FIR and Ex.P25 –
Motor Vehicle Inspector's report, held that the accident occurred only due to
rash and negligent driving by the 1st respondent/driver of Tanker Lorry owned
by the 2nd respondent and directed the 3rd respondent as insurer of the Tanker
Lorry to indemnify the 2nd respondent. There is no error in the said finding of
the Tribunal warranting interference by this Court.
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14.As far as the quantum of compensation granted by the Tribunal in
M.C.O.P.No.540 of 2019 is concerned, it is the case of the claimants that the
deceased Kanagaraj was aged 28 years, working as a Bakery Master in
Tirupattur and was earning a sum of Rs.25,000/- per month at the time of
accident. They did not file any document to prove the said contention. The
accident is of the year 2017. In the absence of any evidence with regard to
avocation and income of the deceased, the Tribunal considering the age of the
deceased Kanagaraj, nature of work done by him and the year of accident,
fixed a sum of Rs.9,000/- per month as notional income of the deceased,
which is not excessive. The Tribunal following the judgment of the Hon'ble
Apex Court reported in 2009 (2) TNMAC 1 SC Supreme Court [Sarla
Verma & others vs. Delhi Transport Corporation & another], has rightly
applied the multiplier '17' and after granting 40% enhancement towards future
prospects, awarded compensation towards loss of dependency. The amounts
awarded by the Tribunal under different heads are not excessive, warranting
interference by this Court.
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15.As far as the quantum of compensation granted by the Tribunal in
M.C.O.P.No.434 of 2019 is concerned, it is the case of the claimant that the
deceased minor Hema was aged 4 years at the time of accident. The Tribunal
has fixed a sum of Rs.60,000/- as notional annual income of the deceased and
applying multiplier '13', awarded a sum of Rs.7,80,000/- as compensation
towards loss of dependency. As per II Schedule of the Motor Vehicles Act,
1988, the notional income of a non-earning member is fixed at Rs.15,000/-
per annum. The Hon'ble Apex Court considering the passage of time from the
date of enactment of II Schedule in the judgment reported in 2013 (5) CTC
212 (SC), [Kishan Gopal and another Vs. Lala and others], fixed notional
income of the minor at Rs.30,000/- per annum and granted a sum of
Rs.50,000/- under conventional heads. Subsequently, this Court in number
of cases fixed notional income of the non-earning member from
Rs.45,000/- to Rs.60,000/- per annum and granted separate amounts
under conventional heads. As per II Schedule, the correct multiplier
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applicable is '15'. Considering the date of enactment of II Schedule,
circumstances of facts of this case and the multiplier '13' applied by the
Tribunal instead of '15', the annual income of Rs.60,000/- fixed by the
Tribunal is not interfered with. The amounts awarded by the Tribunal under
other conventional heads are also not excessive, warranting interference by
this Court.
16.In the result,
(i) C.M.A.No.2030 of 2022 is dismissed and the amount awarded by
the Tribunal at Rs.8,79,536/- in M.C.O.P.No.434 of 2019 together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit is confirmed. The 3rd respondent -Insurance Company is directed to
deposit 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.434 of 2019. On such
deposit made in M.C.O.P.No.434 of 2019, the 1st respondent is permitted to
withdraw the award amount, along with interest and costs, after adjusting the
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amount, if any, already withdrawn, by filing necessary applications before the
Tribunal. Consequently, connected Miscellaneous Petition is closed. No
costs.
(ii).C.M.A.No.2033 of 2022 is dismissed and the amount awarded by
the Tribunal at Rs.22,01,205/- in M.C.O.P.No.540 of 2019 together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit is confirmed. The 3rd respondent - Insurance Company is directed to
deposit 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.540 of 2019. On such
deposit made in M.C.O.P.No.540 of 2019, the respondents 1, 3 and 4 are
permitted to withdraw their respective share of the award amount, along with
proportionate interest and costs, as per the ratio of apportionment fixed by the
Tribunal, after adjusting the amount, if any, already withdrawn, by filing
necessary applications before the Tribunal. The share of the minor 2nd
respondent is directed to be deposited in any one of the Nationalized Bank,
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till the minor attains majority. The 1st respondent, mother of the minor 2nd
respondent is permitted to withdraw the accrued interest, once in three
months for the welfare of the minor 2nd respondent. Consequently, connected
Miscellaneous Petition is closed. No costs.
(V.M.V., J) (V.S.G., J)
19.09.2022
Index : Yes/No
Speaking Order : Yes/No
gsa
To
1.The Special District Judge,
(Motor Accident Claims Tribunal),
Krishnagiri.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.Nos.2030 & 2033 of 2022
V.M.VELUMANI, J.
and
V.SIVAGNANAM, J.
(gsa)
C.M.A. Nos.2030 & 2033 of 2022
19.09.2022
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