Madras High Court
United India Insurance Company ... vs Nafeel Ahamed on 8 June, 2023
C.M.A.(MD)Nos.990 of 2021 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD)Nos.990 to 992 of 2021 and 1090 to 1092 of 2022
and
C.M.P.(MD)Nos.9287, 9289 and 9290 of 2021
C.M.A.(MD)No.990 of 2021:
United India Insurance Company Limited.,
Rep by its Divisional Manager,
No.19, Aandiyappa Kiramani Street,
Rayapuram, Chennai-600 013. ...Appellant
Vs.
1.Nafeel Ahamed
2.Tamil Nadu State Express Transport Corporation,
Through its Managing Director,
Pallavan Road, Chennai-600 002.
3.M/s.B.L.Transports Private Limited,
Through its Managing Director,
No.61/69, Athipattu Village,
Ponneri Taluk,
Thiruvalluvar District-601 204. ...Respondents
PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the judgment and decree dated 10.03.2021
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C.M.A.(MD)Nos.990 of 2021 etc., batch
passed in M.C.O.P.No.32 of 2016 on the file of the Motor Accidents Claims
Tribunal and Principal District Court, Tirunelveli.
For Appellant : Mr.I.Suthakaran
COMMON JUDGMENT
Against the judgment and decree made in M.C.O.P.Nos.32, 33 and 1490
of 2016 on the file of the Motor Accident Claims Tribunal and Principal District
Court, Tirunelveli, the Insurance Company had preferred appeals in C.M.A.(MD)
Nos.990 to 992 of 2021 on the ground that 50% negligence fixed on the part of the
Insurance Company is not proper and the entire negligence has to be fixed only on
the part of the driver of the offending vehicle and the claimants have preferred
appeals in C.M.A.(MD)Nos.1090 to 1092 of 2022 seeking enhancement of
compensation. Since all the appeals are arising out of a common judgment, these
appeals are taken up together for final disposal by way of this common judgment.
2.For the sake of convenience, the parties are referred to herein as per
their rank before the trial Court.
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C.M.A.(MD)Nos.990 of 2021 etc., batch
3.The brief facts leading to the filing of these Civil Miscellaneous
Appeals are as follows:
On 20.10.2015 at about 9.20 p.m., one Vinod and the injured claimants
in M.C.O.P.Nos.32 and 33 of 2016 along with others, were travelled in the bus
belonging to Tamil Nadu State Express Transport Corporation / first respondent in
all the claim petitions bearing Registration No.TN-01-N-4910 from Chennai to
Tirunelveli. When the said bus was nearing to SRM Medical College Hospital, the
bus hit the lorry bearing registration No.TN-18-6939, which was loaded with iron
rods and parked in the highway without any reflector and signal. As a result, the
claimants in M.C.O.P.Nos.32 and 33 have sustained multiple injuries and one
Vinod succumbed to injuries. Hence, the injured claimants and the legal heirs of
the deceased Vinod have filed claim petitions before the Tribunal.
4.The Transport Corporation took a stand before the Tribunal that the
entire accident was due to the negligence on the part of the driver of the lorry, who
had parked the lorry on the middle of the road without any reflector, particularly in
the area, where no lighting is available.
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C.M.A.(MD)Nos.990 of 2021 etc., batch
5.The Insurance Company of the lorry took a stand that the driver of the
offending bus dashed against the lorry, which was parked in the extreme left side
of the road abiding traffic rules. Further, the driver of the lorry did not have any
valid license at the time of accident.
5.Before the Tribunal, on the side of the claimants, five witnesses were
examined as P.W.1 to P.W.5 and Ex.P1 to Ex.P54 were marked. On the side of the
respondents, R.W.1 to R.W3 were examined and Ex.R1 to Ex.R4 were marked.
6.The Tribunal tried all the claim petitions jointly and disposed of the
same by way of a common judgment. The Tribunal after considering the evidence
of P.W.1 and P.W.2 had found that both the drivers, namely, the driver of the
offending vehicle and the driver of the lorry were negligent, which resulted in the
accident and hence, the Tribunal fixed the negligence 50% on both the drivers and
awarded the compensation as follows:
M.C.O.P.No.32 of 2016:
S.No. Head Amount
1 Partial disability Rs.12,96,000/-
2. Pain and sufferings Rs. 50,000/-
3. Medical expenses Rs. 8,16,800/-
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C.M.A.(MD)Nos.990 of 2021 etc., batch
4. Transportation charges Rs. 50,000/-
5. Attendant charges Rs. 25,000/-
6. Nutritious Food and loss of Rs. 25,000/-
belongings
Total Rs.22,62,000/-
M.C.O.P.No.33 of 2016:
S.No. Head Amount
1 Partial disability Rs.11,34,000/-
2. Pain and sufferings Rs. 40,000/-
3. Medical expenses Rs. 3,92,800/-
4. Transportation charges Rs. 40,000/-
5. Attendant charges Rs. 25,000/-
6. Nutritious Food and loss of Rs. 25,000/-
belongings
Total Rs.16,56,800/-
In M.C.O.No.1490 of 2016:
S.No. Head Amount
1 Loss of Income Rs.13,26,000/-
2. Funeral Expenses Rs. 15,000/-
3. Loss of estate Rs. 15,000/-
4. Loss of love and affection Rs. 20,000/-
5. Transportation charges Rs. 10,000/-
Total Rs.13,86,000/-
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C.M.A.(MD)Nos.990 of 2021 etc., batch
Challenging the same, the present civil miscellaneous appeals have been filed by
the claimants as well as the Insurance Company.
7.The learned counsel for the appellant/Insurance Company in C.M.A.
(MD)Nos.990 to 992 of 2021 contended that the driver of the bus drove the bus in
a heavy speed negligently and dashed the lorry, which was parked in the left side
of the road. Even though the lorry was parked in the main road, if the driver of the
bus had driven the bus in a reasonable speed and in a cautious manner, he could
have averted the accident. The fact that the bus hit the halted lorry clearly proves
the negligence on the part of the driver of the Transport Corporation. Therefore, it
is the contention of the learned counsel for the Insurance company that 50%
negligence fixed on the Insurance Company is high and the same has to be
reduced. Further, he contended that the Tribunal had adopted multiplier method
for the injured claimants. Hence, he prays for allowing the appeal.
8.The learned counsel for the appellant/claimants in C.M.A.(MD)No.
1090 to 1092 of 2022 contended that the injured claimants have suffered serious
injuries. They had been treated in various hospitals. The injured claimants are the
Engineering students at the relevant point of time and their future is affected by
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C.M.A.(MD)Nos.990 of 2021 etc., batch
the accident. Further, the deceased was working as a mechanic at the time of
accident. But, the Tribunal had fixed the notional income of the injured claimants
only at the rate of Rs.15,000/- and the deceased at the rate of Rs.10,000/-, which
are very low and the same has to be enhanced. Further, in the case of the
deceased, the Tribunal had granted only a sum of Rs.20,000/- under the head of
loss of love and affection and a sum of Rs.15,000/- under the head of loss of
estate. The same are very meager and have to be enhanced.
9.The learned counsel appearing for the Transport Corporation would
submit that the lorry was parked in the highway without any signal or reflector in
the backside of the lorry. Even the bus was driven in a reasonable speed, it is not
possible to control the bus, when there is no indicator or reflector to show that the
lorry is parked on the road. If the reflector in the lorry is on, the accident would
have been averted. Therefore, parking a lorry in the middle of road with heavy
load itself is a clear negligence on the part of the driver of the lorry. The Tribunal
had rightly fixed the negligence on both the drivers of the vehicle and the said
finding does not warrant any interference.
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C.M.A.(MD)Nos.990 of 2021 etc., batch
10.In view of the above submissions, now the points arise for
consideration in these appeals are:
1.Whether the Tribunal is right in fixing the negligence on both the
drivers of the vehicle?
2.Whether the Tribunal is right in fixing the monthly income of the
injured claimants at the rate of Rs.15,000/- and adopting multiplier method in
awarding the compensation?
3.Whether the Tribunal is right in fixing the income of the deceased at
the rate of Rs.10,000/- per month?
11.I have heard the learned counsel on either side and perused the
materials placed on record.
12.The contention of the Insurance Company that 50% negligence
cannot be fixed on the part of the driver of the lorry, which was parked on the
highway, cannot be countenanced for the simple reason that the evidence on
record makes it very clear that the lorry had been loaded with iron rods and was
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C.M.A.(MD)Nos.990 of 2021 etc., batch
parked in a highway without any signal or reflector. P.W.1 and P.W.2, who are the
eyewitnesses of the occurrence, had also spoken about this factual aspect.
Highway is meant for free flowing of the vehicles. It is a normal conduct of a
person to drive the vehicle in a highway in a reasonable speed, particularly, when
the vehicles are driven during night hours. The visibility during night hours will
be only up to the level of the head light, beyond that it will be very difficult for the
driver of the vehicle to see anything. Such being the position, the heavy vehicle
drivers driving the vehicle in a highway should be very careful in handling the
vehicles.
13.In all the highways, specific areas have been earmarked as parking
place. If any driver of the transport vehicle, particularly lorries, wants to take rest,
he can park the vehicle in the place earmarked for parking and then take rest.
Such being the position, parking of the lorry loaded with iron roads casually in the
highway, that too without any signal or reflector is nothing but a clear negligence
on the part of the lorry driver. It is not the case of the lorry driver that the lorry
broke down and got repaired and suddenly stopped in the high way. No such
evidence is also available on record. The drivers of the lorry, while parking a
loaded vehicle in a highway, where the other vehicles are normally operated in a
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C.M.A.(MD)Nos.990 of 2021 etc., batch
reasonable speed, ought to have taken some care atleast to put reflectors or signals,
which had not been done so in the present case.
14.Similarly, the driver of the Transport Corporation also ought to have
maintained some reasonable speed. If the driver of the Transport Corporation
drove the bus in a safe manner, he could have avoided the accident on seeing the
parked vehicle within the visibility of the headlight. However, the same has not
occurred in this case. That itself clearly shows that the driver of the bus also drove
the vehicle in a high speed and in a casual manner and therefore, the negligence
fixed on the side of the Transport Corporation at the ratio of 50% cannot be found
fault. Accordingly, the contention of the Insurance Company in this regard is
rejected and the finding of the Tribunal fixing the negligence on the part of both
drivers is well reasonable and the same does not require any interference.
15.The learned counsel appearing for the claimants contended that the
injured claimants in C.M.A.(MD)No.1090 and 1091 of 2022 are the Engineering
students. They have been in the hospital for more than two years. Their future
had also been affected. Perusal of the award passed by the Tribunal makes it clear
that the Tribunal had granted all the medical expenses spent by the injured
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C.M.A.(MD)Nos.990 of 2021 etc., batch
claimants. Further, taking note of the prolonged treatment taken in various
hospitals, the Tribunal had adopted multiplier method and fixed the notional
income of the injured claimants at the rate of Rs.15,000/-. The disability
certificate filed by them clearly shows that the injured claimants only suffered
partial permanent disability at the ratio of 40% and 35%, respectively and no
functional disability is established. Further, there is no evidence on record to show
that such partial permanent disability had affected their education and other works.
Considering the nature of injuries sustained by the injured claimants, the Tribunal
had adopted the multiplier method instead of disability percentage.
16.In such view of the matter, this Court is of the view that the approach
adopted by the Tribunal is well reasonable and the income fixed by the Tribunal
does not require any interference. However, the Tribunal had awarded only a sum
of Rs.50,000/- in M.C.O.P.No.32 of 2016 and Rs.40,000/- in M.C.O.P.No.33 of
2016 towards pain and sufferings. This Court is of the view that considering the
nature of the treatment underwent by the injured claimants in various hospitals, the
amount awarded under the head 'pain and sufferings' has to be increased.
Accordingly, a sum of Rs.2,00,000/- (Rupees Two Lakhs only) is awarded under
the head of pain and sufferings in M.C.O.P.No.32 of 2016 and a sum of Rs.
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C.M.A.(MD)Nos.990 of 2021 etc., batch
1,00,000/- (Rupees one lakh only) is awarded in M.C.O.P.No.33 of 2016. Except
this, the compensation awarded by the Tribunal under the other heads in both the
claim petitions remains unaltered. In the result, the claimants in M.C.O.P.Nos.32
and 33 of 2016 are entitled to the compensation as follows:
M.C.O.P.No.32 of 2016:
S.No. Head Amount
1 Partial disability Rs.12,96,000/-
2. Pain and sufferings Rs. 2,00,000/-
3. Medical expenses Rs. 8,16,000/-
4. Transportation charges Rs. 50,000/-
5. Attendant charges Rs. 25,000/-
6. Nutritious Food and loss of Rs. 25,000/-
belongings
Total Rs.24,12,000/-
After deduction of 50% (i.e.,
Rs.12,06,000/-) of contributory Rs.12,06,000/-
negligence
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C.M.A.(MD)Nos.990 of 2021 etc., batch
M.C.O.P.No.33 of 2016:
S.No. Head Amount
1 Partial disability Rs.11,34,000/-
2. Pain and sufferings Rs. 1,00,000/-
3. Medical expenses Rs. 3,92,800/-
4. Transportation charges Rs. 40,000/-
5. Attendant charges Rs. 25,000/-
6. Nutritious Food and loss of Rs. 25,000/-
belongings
Total Rs.17,16,800/-
After deduction of 50% (i.e.,
Rs.8,58,400/-) of contributory Rs.8,58,400/-
negligence
17.As far as the appeal in respect of the fatal case is concerned, in the
claim petition itself it has been pleaded that the deceased was earning a sum of
Rs.10,000/- per month by working as a mechanic. But, no evidence was produced
by the claimants to substantiate the same. The Tribunal had in fact awarded the
amount claimed by the claimants considering the nature of work and the
educational qualifications of the deceased. Hence, this Court is of the view that
the income fixed by the Tribunal is well reasonable and the same does not require
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any interference. However, the Tribunal had only awarded a sum of Rs.20,000/-
under the head 'loss of love and affection', in the considered view of this Court,
the amount awarded under loss of love and affection is meager and the same has to
be increased. Hence, this Court awards a further sum of Rs.60,000/- (Rupees
Sixty Thousand only) towards loss of love and affection. The compensation
awarded by the Tribunal under other heads are hereby confirmed. In the result, the
claimant in M.C.O.P.No.1490 of 2016 are entitled to the compensation as stated
below:
S.No. Head Amount
1 Loss of Income Rs.13,26,000/-
2. Funeral Expenses Rs. 15,000/-
3. Loss of estate Rs. 15,000/-
4. Loss of love and affection Rs. 80,000/-
5. Transportation charges Rs. 10,000/-
Total Rs.14,46,000/-
After deduction of 50% (i.e., Rs.
7,23,000/-) of contributory Rs.7,23,000/-
negligence
18.Accordingly, the Civil Miscellaneous Appeals in C.M.A.(MD)Nos.
990 to 992 of 2021 are dismissed and C.M.A.(MD)Nos.1090 and 1092 of 2022 are
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allowed and the compensations awarded by the Tribunal in all the claim petitions
are enhanced as stated above.
19.The respondents 1 and 3 in all the claim petitions are directed to
deposit the enhanced compensation amount i.e., Rs.12,06,000/- (Rupees Twelve
Lakhs and Six Thousand only) in C.M.A.(MD)No.1090 of 2022, a sum of Rs.
8,58,400/- (Rupees Eight Lakhs Fifty Eight Thousand and Four Hundred only) in
C.M.A.(MD)No.1091 of 2022 and a sum of Rs.7,23,000/- (Rupees Seven Lakhs
and Twenty Three Thousand only) in C.M.A.(MD)No.1092 of 2022, as modified
by this Court, with interests and costs, to the credit of M.C.O.P.Nos.32, 33 and
1490 of 2016, respectively on the file of the Motor Accident Claims
Tribunal /Principal District Court within a period of six weeks from the date of
receipt of a copy of this judgment, less the amount, if any already deposited. On
such deposit, the claimants in C.M.A.(MD)Nos.1090 and 1091 of 2022 are
permitted to withdraw their respective amount, less the amount if any already
withdrawn, by making necessary application before the Tribunal and the first
claimant in C.M.A.(MD)No.1092 of 2021 is permitted to withdraw a sum of Rs.
4,23,000/- (Rupees Four Lakhs and Twenty Three Thousand only) and the second
claimant is permitted to withdraw a sum of Rs.3,00,000/- (Rupees Three Lakhs
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only), less the amount if any already withdrawn, by making necessary application
before the Tribunal. No costs. Consequently, connected miscellaneous petitions
are closed.
08.06.2023
NCC : Yes/No
Index : Yes/No
ta
To
1.The Motor Accident Claims Tribunal /
Principal District Court, Tirunelveli.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)Nos.990 of 2021 etc., batch
N.SATHISH KUMAR, J.
ta
C.M.A.(MD)Nos.990 to 992 of 2021
and 1090 to 1092 of 2022
08.06.2023
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