Madras High Court
U.Muthulakshmi vs Srinivasan on 24 January, 2023
C.M.A.(MD)No.338 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.01.2023
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD)No.338 of 2020
1.U.Muthulakshmi
2.P.Panthana Selvi
3.Ponpondi, S/o.Late. Rajapandi Thevar ... Appellants
vs.
1.Srinivasan, S/o.Duraikannu
2.V.T.Haris
3.United India Insurance Company Ltd.,
No.50/1, S.N.High Road, 1st Floor,
Office at No.37, C.S.N. High Road,
Tirunelveli – 1. ... Respondents
[The second respondent remained ex parte before
the Tribunal. Hence, notice is not necessary
to the second respondent]
Prayer :- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree, dated 16.03.2015, passed in
M.C.O.P.No.376 of 2012, on the file of the Motor Accident Claims Tribunal
[Principal District Judge], Thoothukudi, and set aside the same.
For Appellants : Mr.G.Thalaimutharasu
For 1st Respondent : Mr.M.Ashok Kumar
For 3rd Respondent : Mr.A.Shajahan
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C.M.A.(MD)No.338 of 2020
JUDGMENT
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
This appeal is preferred by the legal representatives of the motor accident
victim, being aggrieved by the dismissal of their claim petition by the Tribunal
holding that the death of the accident victim was not due to the injury sustained in
the accident. The reason for such conclusion is that the accident occurred on
04.02.2009 causing fractured injury to the victim. However, the victim after medical
treatment, survived for more than one year and lost his breathe on 26.03.2010.
Taking note of the opinion given by the doctors that the death occurred due to
negligence by the victim by not following the instructions of the doctor, the Tribunal
had rejected the claim petition in toto. Further, the Tribunal taking note of the
manner in which the accident occurred, held that the victim has equally contributed
to the accident and his negligence was also the cause for the accident.
2. In the Civil Miscellaneous Appeal, it is contended that the Tribunal
erred in dismissing the claim petition in toto in spite of holding that the driver of the
offending Maruti Omni Van, bearing Registration No.TN-22-K-8022, has also
contributed for the head-on collision, causing injury. Further, the deceased was
under continuous treatment for more than a year for the injury and the proximity of
the death and the accident is close and not broken at any point of time.
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C.M.A.(MD)No.338 of 2020
3. The learned counsel appearing for the appellants submitted that at the
time of accident, the deceased, who was 38 years old, doing textile business and
earning Rs.15,000/- per month. He was married to the first appellant
[U.Muthulakshmi]. The appellants 2 and 3 are the parents of the deceased. The
appellants were depending on his income and the said accident occurred on
04.02.2009 at 11.00 hours while the deceased was riding his motorcycle bearing
Registration No.TN-69-A-3566 along Thoothukudi – Palayamkottai Main Road, the
Maruti Omni Van, bearing Registration No.TN-22-K-8022 driven by one
K.Somasundaram, owned by the first respondent and duly insured with the third
respondent, rashly dashed against the vehicle of the deceased, causing multiple
grievous injuries with fracture. The injured was taken to Medical College Hospital,
Thoothukudi, immediately and thereafter, he was referred to Tirunelveli Medical
College Hospital, where he was treated as inpatient from 11.02.2009 to 29.07.2009
and thereafter, discharged with medical advice. The deceased was bedridden for
more than eight months, but did not recover from the injury and died on 26.03.2010.
4. It is submitted by the learned counsel for the appellants that having held
that the deceased had sustained injury in the motor accident, at least for the loss of
income and injury, the Tribunal ought to have awarded compensation, if not for the
death of the deceased after one year and one month from the date of accident.
Finding fault with the judgment of the Tribunal, for non-application of mind and
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C.M.A.(MD)No.338 of 2020
proper understanding of the social legislation, Mr.G.Thalaimutharasu, learned
counsel for the appellants would submit that a fair compensation ought to have been
awarded by the Tribunal taking note of the fact that the injury has caused 100%
disability to the victim and he was not able to recover from the injury even after a
year long treatment. Referring to the F.I.R., Accident Register, Motor Vehicle
Inspector's Report and the Rough Sketch, which are marked as exhibits, the learned
counsel for the appellants would submit that it is a case of motor accident, where the
victim has suffered injury, which was fatal. Therefore, the claimants, who are the
dependants of the accident victim, are entitled for compensation as claimed.
5. Per contra, the learned counsel appearing for the third respondent/
Insurance Company submitted that the judgment of the Tribunal needs no
interference, since it is proved from the medical record that the victim was inebriated
condition and due to his negligence, the accident has occurred and the Tribunal has
rightly held that the deceased has also contributed to the accident. Further, the
learned counsel submitted that the Doctor, who has been examined as P.W.2, has
opined that the death of the victim cannot be attributed to the accidental injuries.
The death was not soon after accident. In the absence of clear medical records to
link the death with the road accident, the dismissal of the claim petition has to
sustain.
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C.M.A.(MD)No.338 of 2020
6. This Court after giving anxious consideration to the rival submissions,
finds that the accident occurred on 04.02.2009 is not disputed. It is supported by
Ex.P.1 – F.I.R. In the said accident, Uthirapandi [deceased] had sustained severe
injury and got admitted in the Hospital and this fact is proved through Ex.P.2 –
Accident Register. Both the vehicles are duly insured. At the time of accident,
Uthirapandi as well as the driver of the Omni van K.Somasundaram had valid
driving licence and the same were marked as Exs.P.7 and P.8 respectively. It is also
not disputed that Uthirapandi, who sustained grievous injuries, was bedridden for
quite sometime and later, died on 26.03.2010. The discharge summary Ex.P.11 issued
by the Tirunelveli Government Hospital, dated 25.07.2009, reveals the injury
sustained and treatment given to him. The other medical records pertaining to the
treatment, are marked as Exs.P.12 and P.14. While the documentary evidence clearly
indicates that Uthirapandi had sustained multiple injuries, which has crippled his
movement, the finding of the Tribunal that the claimants are not entitled for any
compensation is contrary to the spirit of legislation and evidence available on record.
Hence, the finding of the Tribunal is set aside.
7. The learned counsel appearing for the third respondent Insurance
Company submitted that if the order of the Tribunal is perverse, the matter should be
remanded back for fresh consideration on facts. However, this Court taking note of
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C.M.A.(MD)No.338 of 2020
the fact that the accident took place in the year 2009 and after 14 years, if the matter
is remanded back for fresh trial, it may not meet the ends of justice. Since all the
materials require to fix compensation is available by way of exhibits, this Court
considering the age of the victim, avocation and the dependency, fixes the
compensation as below:-
Notional income : Rs.9,000/- p.m.
Future prospects : 30%
Deduction for personal expenses : 1/3
Multiplier [38 years] : 15
Rs.9,000/- x 30/100 – 1/3 x 12 x 15 = Rs.14,04,000/-
Since the deceased has equally contributed to the accident, 50% is deducted towards
contributory negligence. Hence, the loss of income works out to Rs.7,02,000/-
[Rs.14,04,000 - 50%]. Since no medical bills were furnished and substantial
treatment was rendered at free of cost by the Government, no amount is required to
be awarded under the head 'medical expenses'. For transport and other expenses,
Rs.10,000/- is awarded under the non-conventional head. Thus, the award reads as
below:-
Loss of Income : Rs.7,02,000/-
Transport and other expenses : Rs. 10,000/-
----------------
Total Rs.7,12,000/-
----------------
The above award amount is to be paid with interest at 7.5% p.a. from the date of
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C.M.A.(MD)No.338 of 2020
filing the claim petition till the date of realisation. The third respondent Insurance
Company is hereby directed to deposit the entire award amount with interest within a
period of eight weeks from the date of receipt of a copy of this judgment. The award
amount to be apportioned between the claimants/appellants, namely, the wife, mother
and father of the deceased, in the ratio of 40 : 40 : 20 respectively.
8. In the result, this Civil Miscellaneous Appeal is partly allowed. No
costs. The appellants are directed to pay the requisite Court fee, if any, forthwith.
NCC : Yes / No [G.J., J.] [S.M., J.]
Index : Yes / No 24.01.2023
Internet : Yes / No
SMN2
To
1.The Motor Accident Claims Tribunal
[Principal District Judge],
Thoothukudi.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.338 of 2020
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
SMN2
JUDGMENT MADE IN
C.M.A.(MD)No.338 of 2020
DATED : 24.01.2023
https://www.mhc.tn.gov.in/judis
