Madras High Court
Mrs.Seethalakshmi vs R.Ganesan on 6 July, 2023
C.M.A.No.4380 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2023
CORAM:
THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI
C.M.A.No.4380 of 2019
1. Mrs.Seethalakshmi
2. Yuvashini (minor)
3. Vinoth (minor)
(Petitioners 2 and 3 are rep. by their mother and
next friend Mrs.Seethalakshmi)
4.Mrs.Pushpam
5. Ramu ... Appellants
Vs.
1.R.Ganesan
2. National Insurance Co. Limited
Motor Third Party Cell
No.751, Anna Salai, 3rd Floor
Chennai – 2 ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, to enhance the amount awarded in M.C.O.P.No.6738
of 2015 dated 05.04.2018 on the file of the Motor Accident Claims Tribunal
(Chief Judge, Small Causes Court), Chennai.
For Appellant : Mr.K.Varadha Kamaraj
For Respondents : Mr.G.Anandan for R2
R1-sd-No Appearance
1/10
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C.M.A.No.4380 of 2019
JUDGMENT
This Civil Miscellaneous Appeal has been preferred by the
appellants herein against the Judgment and decree passed in
M.C.O.P.No.6738 of 2015 dated 05.04.2018 on the file of the Motor
Accident Claims Tribunal (Chief Judge, Court of Small Causes) Chennai,
questioning the liability.
2. The claim petition was filed under Section 166 of Motor Vehicle
Act for the death of one Selvaraj who died in a motor accident that occurred
on 18.06.2015.
3. The Tribunal, after hearing the arguments on both sides and upon
considering the oral and documentary evidence, calculated the total award
amount as Rs.18,84,400/- by fixing 50% negligence on the part of the
driver of the 1st respondent's lorry and 50% liability on the part of the
deceased and granted a sum of Rs.9,42,200/- to the appellants /claimants,
with interest at 7.5% per annum from the date of numbering of the petition
i.e. 26.08.2015 till the date of realisation.
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C.M.A.No.4380 of 2019
4. The learned counsel appearing for the appellants would
vehemently argue that the deceased who was the rider of the two wheeler,
hit on the lorry which was parked without parking light and as the lorry was
parked without any parking light, the 1st respondent is liable to pay the entire
compensation. To strengthen his arguments, he relied upon the below said
judgments;
(i) Oriental Insurance Co. Ltd. Vs. Chandra and
others reported in 2013 (2) TN MAC 105 (DB) wherein,
the deceased was travelling in a car along with his friends.
The bus was proceeding in the same direction was stopped
all of a sudden on Tar road. The car rammed into the bus.
The deceased succumbed to injuries in the hospital. Based
on the evidence of eyewitnesses, liability was passed on the
driver of the bus. After analyzing both the witnesses, it was
held that the tribunal rightly held that the bus driver was
negligent and it was upheld by this Court.
(ii) Oriental Insurance Co. Ltd. Vs.V.
Bhuvaneswari and others reported in 2019 (1) TN MAC
72 (DB) wherein, according to claimants, the deceased was
driving a motorcycle bearing Regn.No.TN-07-AQ-8011
from Thiruvanmiyur to Thiruporur on the Rajiv Gandhi
Salai, North to South direction near Fruit Garden Signal
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C.M.A.No.4380 of 2019
Semmanchery, dashed against a Van bearing Regn.
No.TN-07-AY-7881, which was parked in the main road
abetting 2nd and 3rd lanes, without any indicator lights and
died instantaneously on account of the fatal injuries
sustained by him. Resisting the claim, the insurance
company filed a counter statement denying the manner of
accident and all particulars. The tribunal passed an award
fastening the liability on the van for an amount of
Rs.21,51,208/-. This Court held that as to the contributory
negligence in an appeal filed by the insurance company,
there is no material to show that the parked van was having
blinking lights and admittedly, the accident took place on the
late evening hours of 20.04.2010 and therefore, the
contention of the insurance company was rejected.
(iii) In Archit Saini and another Vs. Oriental
Insurance Co. Ltd. and others reported in 2018 (1) TN
MAC 544 (SC) wherein, the case of the claimants is that
the deceased who was driving his car on highway during
night hours at 10.30 p.m., dashed against Tanker Lorry
parked on middled of the road without any parking light or
indicator. Relying the evidence of eyewitness/P.W.7 that
car struck against back of Tanker as the car driver could
not spot parked Tanker in middle of road due to flash lights
of oncoming vehicles. The Tribunal considering the Site
Map/Ex.P.45 along with charge sheet filed against Tanker
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C.M.A.No.4380 of 2019
Lorry Driver, held that accident took place due to parking of
offending vehicle/Tanker in middle of road in negligent
manner. Whereas, the High Court, in appeal, holding that in
view of the evidence of P.W.7, Tanker was visible from the
distance of 70 ft. and same was not parked in middle of
road as per site map, concluded that it was a case of
contributory negligence to extent of 50:50. The Hon'ble
Apex Court reversed the findings of the High Court and
held that the Tribunal applied correct test in analysis of
evidence and High Court's finding of Contributory
negligence was set aside by the Hon'ble Apex Court.
5. Per contra, the learned counsel appearing for the 2nd respondent/
Insurance Company would vehemently contend that the Tribunal, after
analyzing the oral and documentary evidence, has correctly fixed 50%
contributory negligence on the rider of the motorcycle as he was at fault.
Therefore, he prayed for dismissal of the appeal.
6. Heard the rival submissions of the learned counsels of both sides
and perused the entire materials available on record.
7.The case of the claimants is that on 18.06.2015 at about 7.30 p.m.,
while the deceased Selvaraj was riding the motorcycle bearing Reg. No.TN-
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C.M.A.No.4380 of 2019
22-U-4891 along the Karattampatti Edhumalai Road along with his co-
brother/P.W.2 was proceeding behind him in a motorcycle bearing Reg.
No.TN-45-T-3299 within 30 feet distance along the same road and at the
point of MRP Farm House, a lorry bearing Reg.No.TN48-Y-1819 was
stationed without any parking light and hence, the deceased Selvaraj hit on
the lorry and due to the impact, he sustained severe injuries on the head
and body and on the way to hospital, he succumbed to injuries. The said
details were resisted by the insurance company by filing counter that
deceased only rode his motorcycle in a rash and negligent manner and hit
against the 1st respondent's stationed vehicle. Since the deceased is the
tortfeasor, the claim petition is liable to be dismissed.
8. As mentioned supra, the eyewitness/P.W.2 narrated the manner
in which the accident occurred. It appears that on the side of the 2nd
respondent/insurance company, the Sub Inspector of Police, Pulivalam
Police Station was examined as R.W.1 and it appears that the charge sheet
was filed against the rider of two wheeler and the case was closed as
charge abated.
9. It is evident that the two wheeler of the deceased hit against the
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C.M.A.No.4380 of 2019
back side of the lorry which was stationed on the road side. It is an admitted
fact that the accident occurred at about 7.15 p.m. and it is the evidence of
the eyewitness/P.W.2 that the lorry was stationed without parking lights. On
the side of the 2nd respondent/insurance company, no eyewitness was
examined to prove otherwise. When a vehicle is stationed along the road,
the law is that the driver should put on the parking lights.
10. It is made clear on the side of claimants that the lorry was
stationed without any parking lights. Therefore, it is evident that had the
driver of the lorry parked the vehicle with parking lights, the accident could
have been averted. Therefore, relying upon the evidence of P.W.2, ocular
witness, the contributory negligence to the tune of 10% is fixed on the rider
of the two wheeler/deceased and 90% negligence is fixed on the part of the
driver of the 1st respondent's lorry.
11. Accordingly, the appellants/claimants are entitled to 90% of the
compensation amount of Rs.18,84,400/- awarded by the Tribunal i.e. the
claimants are entitled to Rs.16,95,960/- with interest at 7.5% per annum
from the date of numbering of the petition i.e. 26.08.2015 to till the date of
realisation.
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C.M.A.No.4380 of 2019
12. In the result,
(i) The Civil Miscellaneous Appeal is partly allowed. No costs.
(ii) The compensation awarded by the Tribunal is enhanced from
Rs.9,42,200/- to Rs.16,95,960/-
(iii) The 2nd respondent / Insurance Company is directed to deposit
the enhanced compensation amount i.e.,Rs.16,95,960/- (less the amount
already deposited if any) together with interest at 7.5% per annum from the
date of numbering of the petition i.e. 26.08.2015 to till the date of realisation
in M.C.O.P.No.6738 of 2015 on the file of the Motor Accident Claims
Tribunal (Chief Judge, Court of Small Causes) Chennai, within a period of
eight weeks from the date of receipt of a copy of this Judgment.
(iv) On such deposit being made, the appellants / claimants are at
liberty to withdraw the same on filing of cheque petition. The claimants are
directed to pay the requisite Court fee for the enhanced compensation
amount, if required. The Tribunal below shall disburse the enhanced
amount upon production of the certified copy showing proof of payment of
Court fee by the claimant.
06.07.2023
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C.M.A.No.4380 of 2019
Index : Yes/No
Speaking / Non-speaking order
ksa-2
To:
1. The Motor Accident Claims Tribunal
(Chief Judge, Court of Small Causes) Chennai,
2. The Section Officer,
V.R.Section,
High Court of Madras,
Chennai.
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C.M.A.No.4380 of 2019
R.KALAIMATHI, J.,
ksa-2
C.M.A.No.4380 of 2019
06.07.2023
https://www.mhc.tn.gov.in/judis
