Madras High Court
The Oriental Insurance Co. Ltd vs G.Gunasundari on 4 January, 2023
C.M.A.No.2919 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2023
CORAM
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
C.M.A.No.2919 of 2022
and C.M.P.No.22580 of 2022
The Oriental Insurance Co. Ltd
234, Mannadi Road
Broadway, Chennai – 108
No.114, Prakasam Salai, Broadway
Esplanade, Chennai – 600 108 .. Appellant
Versus
1.G.Gunasundari, W/o. Varadarajan
2.Varadarajan, S/o.Ellappa
Both residing at
No.401, Peterraja Street
Sandrorpalayam
Razak Garden, Arumbakkam
Chennai – 600 106
2.Subburaj & Co
5/1st St, Sylvan Colony
Kilpauk
Chennai – 10 .. Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and Decree of the Motor Accident
Claims Tribunal (In the Court of Small Causes, Chennai) made in
MCOP.No.5689 of 2017 dated 27.09.2021.
For Appellant : Mr.K.Vinod
For Respondents : Mr.Varathakamaraj
1/6
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C.M.A.No.2919 of 2022
JUDGMENT
The Civil Miscellaneous Appeal has been filed against the Judgment and
Decree of the Motor Accident Claims Tribunal (In the Court of Small Causes,
Chennai) made in MCOP.No.5689 of 2017 dated 27.09.2021.
2.The Insurance Company is the Appellant herein seeking to challenge
the award passed by the Tribunal in M.C.O.P.No.5689 of 2017 on the ground of
negligence.
3. The respondents are the parents and the legal representatives of the
deceased viz., Madanraj. For the sake of convenience, the parties are referred to
as per their ranking before the trial Court. The Factum of the accident is not in
dispute.
4. During the trial before the Tribunal, the Claim Petitioner 1 and 2 were
examined themselves as PW1 & PW2. Ex.P1 to P10 were marked. Ex.P1 is the
FIR in Crime No.956 of 2017. Ex.P4 is the Driving License of the first
respondent, Ex.P5 is the Vehicle Insurance Policy of the first respondent. The
Tribunal on consideration of both oral and documentary evidences came to
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C.M.A.No.2919 of 2022
conclusion that the accident has taken place due to the rash and negligent
driving of the first respondent vehicle and accordingly, fixed the negligence
liability on the offending vehicle namely the vehicle insured with the appellant
company. Considering the age of the deceased as 18, whereas, as per the death
certificate, it was 17 years, the Trial Court fixed the notional income as
Rs.8,000/- per month, future prospects at 40% (i.e., 3,200/-), totalling
(i.e.,8000+3200 = 11,200). As per Sarla Verma's case, it fixed the total loss of
dependency to the claim petitioners as Rs.12,09,600/- (i.e., 11,200 x 12 x 18 x
½ = 1209600). Furthermore, the Trial Court granted Loss of estate as 15000/-,
Funeral expenses at 15000/-, transportation expenses at 10000/- and loss of
love and affection to the claim petitioners 1 and 2 as 80,000/- (40,000/- each)
totalling to the tune of Rs.13,29,600/-.
5. After hearing the counsel for the Appellant Insurance Company and
also taking note of the plea raised by the Insurance Company that at the time of
accident, the deceased was about 17 years and did not possess valid license,
however, rode the two wheeler and met with accident. Therefore, the absence of
valid driving license to drive the two wheeler on the date of accident, assumes
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C.M.A.No.2919 of 2022
significance. Therefore, this Court is of the considered view that contributory
negligence of 10% has to be put on the head of the deceased. Accordingly, this
Court comes to the conclusion that the accident has taken place due to rash and
negligence of both, the driver of the offending vehicle as well as the deceased
at the ratio of 90:10. Hence, the award amount is reduced by 10% (i.e.,
13,29,600 – 1,32,960 (10%) = 1196640) after taking note of the contributory
negligence.
6. In fine,
(i) this Civil Miscellaneous Appeal stands partly allowed to the extent indicated
above and the contributory negligence is fixed at the ratio of 90:10 among the
driver of the offending vehicle and the deceased. Accordingly, the
compensation awarded is reduced from Rs.13,29,600/- to Rs.11,96,640/-. The
rate of interest awarded by the Tribunal remains in tact. No Costs.
Consequently, connected miscellaneous petition is closed.
(ii) the Appellant insurance company is directed to deposit the modified
reduced award amount before the Tribunal, within a period of eight weeks from
the date of receipt of a copy of this order, less the amount, if any already
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C.M.A.No.2919 of 2022
deposited.
(iii) On such deposit being made, all the claimants/appellants are
permitted to withdraw their share in the award amount with proportionate
accrued interest and costs, as per the ratio of apportionment made by the
Tribunal, less the award amount, if any, already withdrawn, by filing necessary
application before the Tribunal.
(iv) If at all the Appellant Insurance Company had already deposited the
awarded compensation amount, after satisfaction of the award, the Tribunal is
directed to refund the surplus deposited money taking note of the reduced
compensation amount herein, to the Appellant Insurance Company.
04.01.2023
Internet : Yes/No
Speaking Order/Non-Speaking Order
dhk
RMT.TEEKAA RAMAN.J,
https://www.mhc.tn.gov.in/judis
C.M.A.No.2919 of 2022
dhk
To
The Presiding Officer,
Motor Accident Claims Tribunal
In the Court of Small Causes
Chennai
C.M.A.No.2919 of 2022
04.01.2023
https://www.mhc.tn.gov.in/judis
