Madras High Court
The Branch Manager vs Govindan on 1 August, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.08.2023
Coram
The Honourable Mr.Justice SUNDER MOHAN
C.M.A.Nos.1128, 1461 & 1622 of 2022
and C.M.P.Nos.8288, 13525, 10799 & 12056 of 2022
C.M.A.No.1128 of 2022:
The Branch Manager,
M/s.Reliance General Insurance Co. Ltd.,
Puducherry.
...Appellant
Versus
1.Govindan
2.Santhi
3.Poongothai
4.Thamizhselvi
5.Mr.Siva Mahesh
...Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the judgment and decree dated
29.11.2021 passed in M.C.O.P.No.575 of 2018 by the Motor Accident
Claims Tribunal, IInd Additional District Court, Puducherry.
For Appellant : Mrs.C.Bhuvanasundari
For Respondents – 1 to 4 : Mr.R.Sreedhar
For Respondent – 5 : No Appearance
https://www.mhc.tn.gov.in/judis
C.M.A.No.1461 of 2022:
The Branch Manager,
M/s.Reliance General Insurance Co. Ltd.,
Puducherry. ...Appellant
Versus
1.Mrs.Jahuran Bibi
2.Minor Raju Khan
Rep. by his mother Mrs.Jahuran Bibi
3.Mr.Siva Mahesh ...Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the judgment and decree dated
29.11.2021 passed in M.C.O.P.No.1004 of 2018 by the Motor Accident
Claims Tribunal, IInd Additional District Court, Puducherry.
For Appellant : Mrs.C.Bhuvanasundari
For Respondents – 1 & 2 : Mr.V.Iyyappan
For Respondent – 3 : No Appearance
C.M.A.No.1622 of 2022:
The Branch Manager,
M/s.Reliance General Insurance Co. Ltd.,
Puducherry. ...Appellant
Versus
1.Mr.Safir Khan
2.Mrs.Ashama Bibi
3.Ms.Asmina Bibi
https://www.mhc.tn.gov.in/judis
4.Mr.Saifudin Khan
5.Mr.Siva Mahesh ...Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the judgment and decree dated
29.11.2021 passed in M.C.O.P.No.1002 of 2018 by the Motor Accident
Claims Tribunal, IInd Additional District Court, Puducherry.
For Appellant : Mrs.C.Bhuvanasundari
For Respondents – 1 to 4 : Mr.V.Iyyappan
For Respondent – 5 : No Appearance
COMMON JUDGMENT
All these appeals arise out of a same accident and hence, the same are
disposed of by this common judgment.
2. These Civil Miscellaneous Appeals have been preferred by the
appellant/Insurance Company seeking to set aside the judgment and decree
dated 29.11.2021 passed by the learned II Additional District Judge, Motor
Accident Claims Tribunal, Puducherry in M.C.O.P.Nos.575, 1004 & 1002
of 2018 respectively.
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3. The brief facts leading to the filing of these appeals are as follows:
On 13.05.2018, at about 2.45 a.m., while one Manikandan was riding
a Suzuki motorcycle bearing Registration No.PY 05 W 3960 along with two
pillion riders viz., Ramjan Ali & Azaruddin Khan on Pondy – Villupuram
Main Road, near Appasamy Company, Vadamangalam, Puducherry from
west to east direction, a TATA Multi Axle Goods vehicle bearing
Registration No.TN 20 BJ 6939 driven by its driver coming on the same
road from east to west direction, hit the said motorcycle, as a result of
which, the said Manikandan and two pillion riders were thrown away from
the motorcycle and fell down on the road. In the accident, the said
Manikandan and the two pillion riders who travelled along with him had
sustained severe injuries. One of the pillion riders viz., Azaruddin Khan
died on the spot. Immediately after the accident, the said Manikandan and
another pillion rider viz., Ramzan Ali were taken to JIPMER Hospital,
Puducherry for treatment. However, the another pillion rider viz., Ramzan
Ali died on the way to Hospital. Thereafter, on the very same day of
accident, the said Manikandan died at 4.52 a.m. Hence, the claimants filed
claim petitions claiming compensation.
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4. The appellant/Insurance Company had filed its separate counter
statement denying all the averments made by the claimants in the aforesaid
claim petitions. It is stated that on the date of accident, the said
Manikandan was riding the motorcycle along with two pillion riders viz.,
Ramjan Ali & Azaruddin Khan in a rash and negligent manner; and all of
them were not wearing helmet and their act of rash and negligent triple
riding in a two wheeler had invited the accident and hence, the claim
petitions may be dismissed.
5. List of Witnesses examined and Exhibits marked before the
Tribunal:
(i) In M.C.O.P.No.575 of 2018, on the side of the claimants, 1st
appellant examined himself as P.W.1 & two other witnesses as P.W.2 &
P.W.3 and marked 18 documents as Exs.P1 to P18. On the side of the
respondents, two witnesses were examined as R.W.1 & R.W.2 and one
document was marked as Ex.X1.
(ii) In M.C.O.P.No.1004 of 2018, on the side of the claimants, 1st
appellant examined herself as P.W.1 & one other witness as P.W.2 and
marked 10 documents as Exs.P1 to P10. On the side of the respondents,
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two witnesses were examined as R.W.1 & R.W.2 and one document was
marked as Ex.X1.
(iii) In M.C.O.P.No.1002 of 2018, on the side of the claimants, 1st
appellant examined himself as P.W.1 & one other witness as P.W.2 and
marked 14 documents as Exs.P1 to P14. On the side of the respondents, one
witness was examined as R.W.1, but, no document was marked as exhibit.
6. Findings of the Tribunal in M.C.O.P.Nos.575, 1004 & 1002 of
2018:
(i) In M.C.O.P.No.575 of 2018, on appreciation of the oral and
documentary evidence produced before it, the Tribunal arrived at the
conclusion that the accident had occurred due to the rash and negligent
driving of the driver of TATA Multi Axle Goods vehicle and contributory
negligence of the deceased Manikandan who consumed alcohol and rode
the motorcycle without wearing the helmet and hence, it fixed 75%
contributory negligence on the driver of TATA Multi Axle Goods vehicle
and 25% contributory negligence on the deceased Manikandan. Further, the
Tribunal held that owner of the offending vehicle and insurer of the
offending vehicle are jointly and severally liable to pay compensation to the
claimants, however, being the insurer of the offending vehicle,
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appellant/Insurance Company is liable to pay the compensation to the
claimants. Accordingly, the Tribunal directed the owner of the offending
vehicle and insurer of the offending vehicle to pay a sum of Rs.17,99,250/-
as compensation with interest at 7.5% per annum from the date of petition
till the date of payment, to the claimants (respondents 1 to 4 in
C.M.A.No.1128 of 2022).
(ii) In M.C.O.P.No.1004 of 2018, on appreciation of the oral and
documentary evidence produced before it, the Tribunal arrived at the
conclusion that the accident had occurred due to the rash and negligent
driving of the driver of TATA Multi Axle Goods vehicle and contributory
negligence of the deceased Ramjan Ali who travelled as pillion rider in the
motorcycle without wearing the helmet and hence, it fixed 90% contributory
negligence on the driver of TATA Multi Axle Goods vehicle and 10%
contributory negligence on the deceased Ramjan Ali. Further, the Tribunal
held that owner of the offending vehicle and insurer of the offending vehicle
are jointly and severally liable to pay compensation to the claimants,
however, being the insurer of the offending vehicle, appellant/Insurance
Company is liable to pay the compensation to the claimants. Accordingly,
the Tribunal directed the owner of the offending vehicle and insurer of the
offending vehicle to pay a sum of Rs.17,11,800/- as compensation with
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interest at 7.5% per annum from the date of petition till the date of payment,
to the claimants (respondents 1 & 2 in C.M.A.No.1461 of 2022).
(iii) In M.C.O.P.No.1002 of 2018, on appreciation of the oral and
documentary evidence produced before it, the Tribunal arrived at the
conclusion that the accident had occurred due to the rash and negligent
driving of the driver of TATA Multi Axle Goods vehicle and contributory
negligence of the deceased Azaruddin Khan who travelled as pillion rider in
the motorcycle without wearing the helmet and hence, it fixed 90%
contributory negligence on the driver of TATA Multi Axle Goods vehicle
and 10% contributory negligence on the deceased Azaruddin Khan.
Further, the Tribunal held that owner of the offending vehicle and insurer of
the offending vehicle are jointly and severally liable to pay compensation to
the claimants, however, being the insurer of the offending vehicle,
appellant/Insurance Company is liable to pay the compensation to the
claimants. Accordingly, the Tribunal directed the owner of the offending
vehicle and insurer of the offending vehicle to pay a sum of Rs.17,51,400/-
as compensation with interest at 7.5% per annum from the date of petition
till the date of payment, to the claimants (respondents 1 to 4 in
C.M.ANo.1622 of 2022).
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7. Aggrieved over the quantum of compensation awarded by the
Tribunal in M.C.O.P.Nos.575, 1004 & 1002 of 2018, the
appellant/Insurance Company has preferred these appeals before this Court.
8. Mrs.C.Bhuvanasundari, learned counsel for the appellant/Insurance
Company submitted that the compensation awarded by the Tribunal are very
excessive.
9.1. As far as C.M.A.No.1128 of 2022 is concerned, the learned
counsel submitted that the deceased Manikandan had a triple riding in the
two wheeler without wearing the helmet and he was under the influence of
alcohol at the time of accident. However, without considering all these
aspects, the Tribunal had fixed only 25% contributory negligence on the
deceased. Therefore, the learned counsel prayed this Court to enhance the
percentage of contributory negligence fixed on the deceased. Further, the
learned counsel submitted that though no documentary evidence was
produced by the claimants to establish the avocation and income of the
deceased, the Tribunal had fixed Rs.15,000/- as notional monthly income of
the deceased and awarded a sum of Rs.22,68,000/- towards the head, 'Loss
of Income' which is on the higher side and hence, the same may be reduced.
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9.2. So far as C.M.A.Nos.1461 & 1622 of 2022 are concerned, the
learned counsel submitted that at the time of accident, deceased Ramjan Ali
was 17 years old & deceased Azaruddin Khan was 18 years old; and both of
them were working as Assistant Cook in the Hotel viz., Punjabi Dhaba run
by the deceased Manikandan. Even if it is assumed that deceased Ramjan
Ali and deceased Azaruddin Khan could have worked nearly 28 days in a
month and earned Rs.250/- per day, the Tribunal ought to have fixed only
Rs.10,000/- as their notional monthly income, but, instead of which, the
Tribunal had fixed Rs.12,000/- as their notional monthly income and
awarded a sum of Rs.18,14,400/- under the head, 'Loss of Income' in
M.C.O.P.No.1004 of 2018 as well as M.C.O.P.No.1002 of 2018 which is on
the higher side and hence, the same may be reduced.
9.3. Further, the learned counsel submitted that at the time of
accident, deceased Ramjan Ali was also under the influence of alcohol and
he did not wear the helmet and hence, the Tribunal ought to have fixed 25%
contributory negligence on him i.e., 15% for consuming alcohol & 10% for
non-wearing of helmet; however, without doing so, it had fixed only 10%
contributory negligence on the deceased for non-wearing of helmet.
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10. Since the owner of the offending vehicle remained ex-parte
before the Tribunal, this Court vide order dated 06.02.2023, dispensed with
the issuance of notice to him.
11. Mr.R.Sreedhar, learned counsel appearing for respondents 1 to 4
in C.M.A.No.1128 of 2022 submitted that the alcohol level in the blood of
deceased Manikandan was 0.064% g which is less than the permissible limit
and hence, it cannot be said that the deceased was under the influence of
alcohol at the time of accident, However, the Tribunal fixed 15%
contributory negligence on the deceased for consuming alcohol. He further
submitted that the quantum of compensation awarded by the Tribunal is just
and reasonable and the same need not to be modified.
12. Mr.V.Iyyappan, learned counsel appearing for respondents 1 & 2
in C.M.A.No.1461 of 2022 as well as respondents 1 to 4 in C.M.A.No.1622
of 2022 submitted that deceased Ramjan Ali & deceased Azaruddin Khan
were permanent residents of Bihar and they came to Pondicherry to eke out
their livelihood; they worked as Assistant Cook in the Hotel run by the
deceased Manikandan. He further submitted that considering the year of
accident and also, taking into consideration the age & avocation of the
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deceased at the time of accident, the Tribunal had rightly fixed Rs.12,000/-
as notional monthly income of deceased Ramjan Ali & deceased Azaruddin
Khan and hence, prayed for dismissal of the appeals.
13. Heard the learned counsel for the appellant/Insurance Company;
learned counsel appearing for respondents 1 to 4 in C.M.A.No.1128 of 2022
& learned counsel appearing for respondents 1 & 2 in C.M.A.No.1461 of
2022 as well as respondents 1 to 4 in C.M.A.No.1622 of 2022 and perused
the materials available on record.
Discussion & Findings in C.M.A.No.1128 of 2022:
14. Now, the two issues to be decided by this Court in
C.M.A.No.1128 of 2022 are as follows:
(i) Whether 25% contributory negligence fixed on the part of
deceased Manikandan by the Tribunal is correct?
(ii) Whether the quantum of compensation awarded by the Tribunal
for the death of Manikandan is just and reasonable?
15. It is an admitted fact that on the date of accident, the deceased
Manikandan consumed alcohol and rode the two wheeler along with two
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pillion riders viz., Ramjan Ali & Azaruddin Khan without wearing the
helmet. Though the learned counsel for the appellant/Insurance Company
submitted that the alcohol level in the blood of deceased Manikandan was
0.064% g which is less than the permissible limit, this Court is of the view
that riding a two wheeler after consuming alcohol cannot be justified.
16. Before the Tribunal, P.W.2 had deposed that on the date of
accident, the deceased Manikandan was riding the two wheeler along with
two pillion riders viz., Ramjan Ali and Azaruddin Khan, on the left extreme
of the road and a TATA Multi Axle Goods vehicle which was coming in the
opposite direction rammed into the two wheeler, whereas, R.W.1 had
deposed that on seeing the two wheeler which was driven by the deceased
Manikandan in a rash and negligent manner, he immediately stopped the
Lorry, but, the deceased Manikandan rammed the two wheeler into the
Lorry on his own.
17. Considering the manner in which the accident had occurred, this
Court is of the opinion that the deposition of P.W.2 is more probable &
acceptable if the deceased had rammed the two wheeler into the Lorry,
the impact would not be so huge. However, taking note of the fact that the
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deceased had ridden the two wheeler with two pillion riders without
wearing the helmet and he had smelt of alcohol at the time of accident, this
Court is of the opinion that there is no need to interfere with the finding of
the Tribunal with regard to the fixation of 25% contributory negligence on
the deceased Manikandan and hence, the same is confirmed.
18. As regards quantum of compensation awarded by the Tribunal is
concerned, though the respondents 1 to 4 in C.M.A.No.1128 of 2022 had
claimed that the deceased Manikandan was running a Hotel and he was
earning not less than Rs.60,000/- per month, they did not produce any
documentary evidence before the Tribunal to prove the avocation and
income of the deceased. Even in the absence of income proof, the Tribunal
had fixed Rs.15,000/- as notional monthly income of the deceased
Manikandan and awarded a sum of Rs.22,68,000/- under the head, 'Loss of
Income' which is just and reasonable. Similarly, the amount awarded by the
Tribunal under all other heads are also just and reasonable. Hence, this
Court is not inclined to modify/re-determine the quantum of compensation
awarded by the Tribunal.
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19. On overall consideration, this Court finds no merits in this
appeal. Hence, C.M.A.No.1128 of 2022 is liable to be dismissed.
Discussion & Findings in C.M.A.Nos.1461 & 1622 of 2022 :
20. The two issues to be decided in C.M.A.Nos.1461 & 1622 of 2022
are as follows:
(i) Whether 10% contributory negligence fixed on deceased Ramjan
Ali and deceased Azaruddin Khan by the Tribunal is correct?
(ii) Whether the quantum of compensation awarded by the Tribunal
for the death of Ramjan Ali and Azaruddin Khan is just and reasonable?
21. So far as C.M.A.Nos.1461 & 1622 of 2022 are concerned, both
the deceased viz., Ramjan Ali and Azaruddin Khan were not wearing the
helmet at the time of accident and hence, the Tribunal had fixed 10%
contributory negligence on them for non-wearing of helmet. Though the
appellant/Insurance Company had contended before the Tribunal that the
deceased Ramjan Ali was under the influence of alcohol at the time of
accident, the Tribunal had not fixed any contributory negligence on
deceased Ramjan Ali for consuming alcohol because the deceased Ramjan
Ali was not riding the motorcycle and he travelled only as a pillion rider in
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the motorcycle. This Court is of the opinion that the finding of Tribunal
with regard to the fixation of 10% contributory negligence on deceased
Ramjan Ali as well as deceased Azaruddin Khan is just and appropriate and
hence, the said finding of the Tribunal is confirmed.
22. As regards quantum of compensation is concerned, the Tribunal
had assumed that there is every possibility for deceased Ramjan Ali &
deceased Azaruddin Khan to earn at least Rs.400/- per day and it had fixed
Rs.12,000/- as notional monthly income of both the deceased. However,
this Court is of the opinion that it would be just and appropriate to exclude
the holidays period and fix a sum of Rs.10,000/- as notional monthly
income of deceased Ramjan Ali & deceased Azaruddin Khan. Thus, by
adding 40% towards future prospects of the deceased, deducting 50%
towards personal expenses of the deceased and applying the multiplier '18',
the compensation towards Loss of Income is re-determined as follows:
Rs.10,000 + Rs.4,000 (40% of Rs.10,000) x ½ x 12 x 18 = Rs.15,12,000/-
23. The compensation awarded under all other heads in
C.M.A.Nos.1461 & 1622 of 2022 are just and reasonable and hence, the
same are confirmed.
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24. The break-up details of the re-determined compensation awarded
by this Court in C.M.A.No.1461 of 2022 are as follows:
Sl.No. Description Amount Amount Award
awarded by awarded by Confirmed or
the Tribunal this Court Enhanced or
(Rs.) (Rs.) Granted or
Reduced
1 Loss of Income Rs.18,14,400/- Rs.15,12,000/- Reduced
2 Filial Consortium Rs.44,000/- Rs.44,000/- Confirmed
3 Transport Expenses Rs.10,000/- Rs.10,000/- Confirmed
4 Funeral Expenses Rs.16,500/- Rs.16,500/- Confirmed
5 Loss of Estate Rs.16,500/- Rs.16,500/- Confirmed
Total Rs.19,01,400/- Rs.15,99,000/- ---
Rounded Off Rs.19,02,000/- --- ---
Less 10% for contributory
negligence on the part of the Rs.1,90,200/- Rs.1,59,900/- ---
deceased.
Net Compensation payable to Rs.17,11,800/- Rs.14,39,100/- Reduced by
the claimants Rs.2,72,700/-
25. The break-up details of the re-determined compensation awarded
by this Court in C.M.A.No.1622 of 2022 are as follows:
Sl.No. Description Amount Amount Award
awarded by awarded by Confirmed or
the Tribunal this Court Enhanced or
(Rs.) (Rs.) Granted or
Reduced
1 Loss of Income Rs.18,14,400/- Rs.15,12,000/- Reduced
2 Filial Consortium Rs.88,000/- Rs.88,000/- Confirmed
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Sl.No. Description Amount Amount Award
awarded by awarded by Confirmed or
the Tribunal this Court Enhanced or
(Rs.) (Rs.) Granted or
Reduced
3 Transport Expenses Rs.10,000/- Rs.10,000/- Confirmed
4 Funeral Expenses Rs.16,500/- Rs.16,500/- Confirmed
5 Loss of Estate Rs.16,500/- Rs.16,500/- Confirmed
Total Rs.19,45,400/- Rs.16,43,000/- ---
Rounded Off Rs.19,46,000/- --- ---
Less 10% for contributory
negligence on the part of the Rs.1,94,600/- Rs.1,64,300/- ---
deceased.
Net Compensation payable to Rs.17,51,400/- Rs.14,78,700/- Reduced by
the claimants Rs.2,72,700/-
26. In the result,
(i) C.M.A.No.1128 of 2022 is dismissed. No costs.
(ii) C.M.A.No.1461 of 2022 is partly allowed and the compensation
of Rs.17,11,800/- awarded by the Tribunal is re-determined as
Rs.14,39,100/- (Rupees Fourteen Lakhs Thirty Nine Thousand and One
Hundred only) together with interest at 7.5% per annum from the date of
petition till the date of deposit. The appellant/Insurance Company is
directed to deposit the modified award amount of Rs.14,39,100/-, after
deducting the amount(s), if any, already deposited, along with interest at
7.5% per annum from the date of petition till the date of deposit (excluding
the default period, if any), to the credit of M.C.O.P.No.1004 of 2018, within
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a period of six weeks from the date of receipt of a copy of this judgment.
On such deposit being made, 1st respondent is permitted to withdraw her
share of the award amount along with proportionate interest and cost, as per
the apportionment fixed by the Tribunal. So far as the share of 2 nd
respondent is concerned, the appellant respondent/Insurance Company shall
deposit the same in Fixed Deposit in any one of the Nationalized Banks, till
he attains majority and the interest accrued thereon shall be withdrawn by
his guardian once in three months, directly from the Bank. The claimants
are directed to pay the necessary Court fee, if any, before receiving the copy
of this judgment. No costs.
(iii) C.M.A.No.1622 of 2022 is partly allowed and the compensation
of Rs.17,51,400/- awarded by the Tribunal is re-determined as
Rs.14,78,700/- (Rupees Fourteen Lakhs Seventy Eight Thousand and Seven
Hundred only) together with interest at 7.5% per annum from the date of
petition till the date of deposit. The appellant/Insurance Company is
directed to deposit the modified award amount of Rs.14,78,700/-, after
deducting the amount(s), if any, already deposited, along with interest at
7.5% per annum from the date of petition till the date of deposit (excluding
the default period, if any), to the credit of M.C.O.P.No.1002 of 2018, within
a period of six weeks from the date of receipt of a copy of this judgment.
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On such deposit being made, the respondents 1 to 4 are permitted to
withdraw their respective share of the award amount along with
proportionate interest and cost, as per the apportionment fixed by the
Tribunal. The claimants are directed to pay the necessary Court fee, if any,
before receiving the copy of this judgment. No costs. Consequently,
connected miscellaneous petitions are closed.
01.08.2023
mrr
Index : Yes/No
Speaking Order (or) Non-Speaking Order
To
1.The II Additional District Judge,
Motor Accident Claims Tribunal, Puducherry.
2.The Section Officer,
Vernacular Records Section,
High Court, Madras.
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SUNDER MOHAN, J.
mrr/dk
C.M.A.Nos.1128, 1461 & 1622 of 2022
01.08.2023
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