Madras High Court
The Oriental Insurance Company ... vs Karuppayee on 20 June, 2023
C.M.A.(MD).No.578 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.578 of 2019
The Oriental Insurance Company Limited,
Through its Branch Manager,
Kovilpatti Nagar,
Kovilpatti Taluk,
Thoothukudi District. ... Appellant/
2nd Respondent
-vs-
1. Karuppayee
2. Pothiraj
3. Shankar
4. Mathiyalagan ... Respondents 1 to 4/
Petitioners 1 to 4
Subbammal (Died)
5. Kanagasabapathy ... 5th Respondent/
1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988, against the decree and judgment made in M.C.O.P.No.66
of 2013, dated 04.10.2018, on the file of the Motor Accidents Claims
Tribunal-cum-Sub Judge, Sankarankovil.
For Appellant : Mr.A.Ilango
For Respondents : Mr.P.Krishnasamy – for R1 to R4
: No appearance – for R5
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C.M.A.(MD).No.578 of 2019
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the Insurance
Company challenging the award passed by the Motor Accidents Claims
Tribunal-cum-Sub Judge, Sankarankovil, made in M.C.O.P.No.66 of 2013
primarily on the ground of negligence.
2. According to the claimants, when the deceased was driving a two
wheeler at about 11.45 a.m on 14.04.2013, the private bus belonging to the
first respondent and insured with the second respondent came from the rear
side and dashed against the two wheeler. In the said accident, the deceased
sustained grievous injuries and later, succumbed to the said injuries. The
claimants have prayed for a sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
towards compensation.
3. The owner of the private bus had remained ex-parte and the
Insurance Company had filed a counter contending that the deceased was
riding his two wheeler in a rash and negligent manner on the wrong side of
the road and dashed against the bus which was stopped at Kallurani Bus Stop
for alighting of the passengers. Only in the said accident, the deceased got
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C.M.A.(MD).No.578 of 2019
sustained injuries and passed away. Therefore, there is no negligence on the
part of the driver of the bus.
4. The Tribunal, after considering the oral evidence of the pillion rider
of the two wheeler, in which, the deceased had travelled and also Ex.P3, Ex.
P.4 and Ex.P.5, has arrived at a finding that the accident has taken place only
due to the rash and negligent driving on the part of the driver of the bus. The
Tribunal has further found that the Insurance Company has not chosen to
examine the Investigating Officer who registered the F.I.R in order to prove
that Ex.P.1 was given by the complainant as PW.2.
5. After arriving at such a finding, the Tribunal proceeded to hold that
the deceased was earning a sum of Rs.6,000/- (Rupees Six Thousand only)
per month and added 25% towards future prospectus and arrived at monthly
income of Rs.7,500/- (Rupees Seven Thousand and Five Hundred only) after
deducting income tax. The Tribunal had deducted 1/4th towards personal
expenses and applying the multiplier of “14”, arrived at a compensation under
the head of loss of income at Rs.9,45,000/- (Rupees Nine Lakhs Forty Five
Thousand only). A sum of Rs.40,000/- (Rupees Forty Thousand only) was
awarded towards loss of consortium, a sum of Rs,15,000/- (Rupees Fifteen
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C.M.A.(MD).No.578 of 2019
Thousand only) was awarded towards funeral expenses and a sum of Rs.
15,000/- (Rupees Fifteen Thousand only) was awarded towards loss of estate.
Totally, a sum of Rs.10,15,000/- (Rupees Ten Lakhs Fifteen Thousand only)
was awarded. This award is under challenge in the present appeal.
6. According to the learned counsel appearing for the appellant, the
deceased viz., Paramasivam was riding a two wheeler at the time of the
accident and one Murugan was the pillion rider. Immediately after the
accident, the driver of the two wheeler had passed away and the pillion rider
was admitted to the hospital and in the hospital he has given a statement and
based upon the statement, an FIR has been registered. As per the said FIR, the
accident has taken place only due to the rash and negligent driving on the part
of the deceased rider of the two wheeler. However, when he was examined
before the Court has taken an “U” turn and contended that the accident has
taken place only due to the rash and negligent driving on the part of the driver
of the private bus. Hence, he contended that the claimants have not
established the negligence on the part of the insured vehicle.
7. Per contra, the learned counsel appearing for the claimants have
contended that the Tribunal has considered the entire oral and documentary
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C.M.A.(MD).No.578 of 2019
evidence and has arrived at a finding that the claimants have established the
negligence on the part of the driver of the first respondent and therefore, the
award of the Tribunal does not call for any interference.
8. I have carefully considered the submissions made by the learned
counsel on either side.
9. The specific case of the claimants is that the two wheeler in which
the deceased was travelling was dashed against by the bus on the rear side.
However, in the counter, it is contended by the Insurance Company that the
two wheeler came on the wrong side of the road and dashed against the front
side of the bus. The Motor Vehicle Inspector's Report under Ex.P-3 would
clearly establish the fact that the rear side of the two wheeler has been
damaged and therefore, the entire contention on the part of the second
respondent/ appellant that they are not liable to pay the compensation, cannot
be accepted. Therefore, the Tribunal was right in holding that the accident has
taken place only due to the rash and negligent driving on the part of the driver
of the bus.
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C.M.A.(MD).No.578 of 2019
10. As far as the quantum of award is concerned, there are four
claimants out of which a sum of Rs.40,000/- (Rupees Forty Thousand only)
has been awarded to the first claimant towards loss of consortium. The
claimants 2 to 4 are the sons of the deceased Paramasivam. However, no
amount has been awarded to them towards loss of love and affection. This
Court is inclined to award a sum of Rs.40,000/- (Rupees Forty Thousand
only) to each of the claimants 2 to 4 herein. The fifth claimant viz., the
mother of the deceased had passed away. Hence, Rs.1,20,000/- (Rupees One
Lakh Twenty Thousand only) is awarded under the head of loss of love and
affection to the claimants 2 to 4 herein. In other respects, the award of the
Tribunal is hereby confirmed.
11. In view of the above said deliberations, the award of the Tribunal is
modified as follows:
Loss of Income : Rs.9,45,000/-
Loss of consortium
(1st claimant) : Rs. 40,000/-
Loss of Love and Affection
(Rs.40,000 x 3) : Rs.1,20,000/-
Funeral Expenses :Rs. 15,000/-
Loss of Estate : Rs. 15,000/-
Total : Rs.11,35,000/-
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C.M.A.(MD).No.578 of 2019
12. The total award of the Tribunal viz., Rs.10,15,000/- (Rupees Ten
Lakhs and Fifteen Thousand only) is hereby enhanced to Rs.11,35,000/-
(Rupees Eleven Lakhs and Thirty Five Thousand only). The entire award
amount will carry interest at the rate of 7.5% per annum from the date of
claim petition. The Insurance Company is directed to deposit the enhanced
amount within a period of eight weeks from the date of receipt of a copy of
this order.
13. With the above said observations, this Civil Miscellaneous Appeal
stands disposed of to the extent as stated above. There shall be no order as to
costs.
20.06.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Motor Accidents Claims Tribunal-cum-Sub Judge,
Sankarankovil.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD).No.578 of 2019
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.578 of 2019
20.06.2023
https://www.mhc.tn.gov.in/judis
