Madras High Court

National Insurance Company ... vs Leela on 22 June, 2023

                                                                                  C.M.A.(MD)No.168 of 2023


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED : 22.06.2023

                                                        CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                               C.M.A.(MD)No.168 of 2023
                                                         and
                                          C.M.P.(MD)Nos.1668 and 6647 of 2023

                National Insurance Company Limited,
                Through its Divisional Manager,
                First Floor, Anguvilas Building,
                Number 112 North Car Street,
                Nagercoil.                                          ...Appellant/2nd Respondent


                                                         Vs.
                1.Leela
                2.Johnson
                3.Subin
                4.George Clyment                                    ...Respondents/Petitioners

                PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
                Motor Vehicles Act, 1988, to set aside the award made in M.C.O.P.No.1550 of
                2018 dated 30.06.2022 on the file of the Motor Accident Claims Tribunal, Special
                Sub Court dealing with MCOP Cases, Tirunelveli.


                                        For Appellant   : Mr.J.S.Murali
                                        For R1 to R3    : Mr.T.Selvakumaran
                                        For R4          : No Appearance


                1/11
https://www.mhc.tn.gov.in/judis
                                                                                        C.M.A.(MD)No.168 of 2023


                                                          JUDGMENT

Challenging the award passed by the Tribunal directing the appellant

herein to pay the compensation amount of a sum of Rs.11,57,000/-, the appeal has

been filed by the Insurance Company on the ground of liability and also

negligence fixed by the Tribunal.

2.For the sake of convenience, the parties are referred to herein, as per

their rank before the Trial Court.

3.The brief facts, leading to the filing of this Civil Miscellaneous

Appeal, are as follows:-

(i)The deceased was aged about 21 years. He was travelling as a pillion

rider in a motorcycle bearing Registration No.TN-75-8096 on 26.07.2008 at about

6.00 p.m.. When the motorcycle was nearing Tholayavattam Cashew nuts factory,

the car bearing Registration No.TN-74-AT-1630 belonging to the first respondent

insured with the second respondent driven in a rash and negligent manner, dashed

against the motorcycle. As a result, the deceased fell down on the road and

succumbed to injuries. The case was registered against the rider of the motorcycle,

based on the complaint given by the first respondent.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.168 of 2023

(ii)First petitioner is the mother of the deceased. The second petitioner is

the father and third petitioner is the brother of the deceased. The deceased was

working as Fisherman and he was earning a sum of Rs.15,000/- per month.

Hence, the legal heirs of the deceased filed the claim petition seeking

compensation.

(iii)The first respondent filed counter affidavit denying the rash and

negligent driving fixed on the part of the driver of the car. He contended that only

the rider of the motorcycle drove the vehicle in a rash and negligent manner and

lost his control. Hence, the deceased fell down on the road.

(iv)The Insurance Company also contended that the accident took place

due to the rash and negligent driving of the rider of the motorcycle. FIR was also

filed against the rider of the motorcycle. Further, the rider of the motorcycle had

no valid driving license at the time of accident and the vehicle was also seized for

not having valid insurance coverage. Hence, opposed the claim petition.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.168 of 2023

4.Before the Tribunal, on the side of the claimants P.W.1 and P.W.2 were

examined and Ex.P1 to Ex.P7 were marked. On the side of the respondents R.W.1

to R.W.3 were examined and Ex.R1 to Ex.R9 were marked.

5.After considering the evidence and documents, the Tribunal had fixed

the liability on the part of the driver of the car mainly on the ground that the

accident had happened in a busy area, therefore, the car should have been driving

in a cautious manner and fixed the compensation as follows:

                             S.No.                       Heads                          Amount
                                  1.    Loss of Income                            Rs.10,80,000/-
                                  2.    Loss of filial consortium                 Rs.    44,000/-
                                  3.    Loss of Estate                            Rs.    16,500/-
                                  4.    Funeral Expenses                          Rs.    16,500/-
                                                                            Total Rs.11,57,000/-

Challenging the same, the present Civil Miscellaneous Appeal is filed by the

Insurance Company.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.168 of 2023

6.The learned counsel for the appellant submitted that the rider of the

motorcycle did not have valid license at the relevant point and the said fact has

been established through R.W.1. Besides, FIR was also registered against the rider

of the motorcycle and the investigation was proceeded against the rider of the

motorcycle. The motorcycle was also seized by the authorities for not possessing

valid license and also insurance. However, the Tribunal in the absence of any

evidence to show the rash and negligent driving on the part of the driver of the car,

had fixed the liability on the part of the driver of the car and same has to be set

aside.

7.The learned counsel for the respondents would submit that the Tribunal

considering the evidence had rightly fixed the liability on the part of the driver of

the car. He further submitted that the Tribunal had not awarded any amount

towards future prospects. Hence, he seeks enhancement of compensation.

8.In view of the above submissions, now the point arise for consideration

in this appeal is:

Whether the Tribunal is right in fixing the liability on the part of the

driver of the offending car without any evidence to prove the same?

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.168 of 2023

9.Heard the learned counsel appearing on either side and perused the

entire evidence available on record.

10.Perusal of the evidence adduced by the appellant as well as the

respondents herein shows that P.W.2, who is stated to be the eye witness of the

accident, had only seen the place of occurrence and he had not witnessed the

accident directly. The evidence of P.W.1 clearly shows that the rider of the

motorcycle did not have any valid driving license at the relevant point of time and

the motorcycle was also not validly insured. Hence, the motorcycle was also

seized by the authorities concerned. These facts have not been considered by the

Tribunal. In the absence of any evidence to establish the rash and negligent

driving on the part of the driver of the car, the Tribunal had simply fixed the

liability on the insurer of the first respondent vehicle on the ground that the car

should have been driven in a careful manner in the busy area, in which the

accident had taken place.

11.Admittedly, the accident had taken place in the busy area. Merely

because, the accident had taken place in a busy area, the entire negligence cannot

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.168 of 2023

be fixed on the driver of the car, unless the negligence is specifically established

on record. At the same time, the car being a heavy vehicle and having the clear

view of the road, the driver of the car ought to have taken some care. Therefore, it

cannot be stated that there was no negligence on the part of the driver of the car at

all. On certain aspects, the doctrine of res ipsa loquitur also comes into play.

Driving the car endangering the human lives in a busy area also amounts to

negligence.

12.In such view of the matter, this Court is of the view that the car driver

cannot be allowed to escape merely on the the ground that the eye witness has not

supported the case of the claimants. Accordingly, this Court fixes the negligence

on the part of the car driver at 70%. Since the rider of the motorcycle did not have

valid driving license at the time of accident and there was no valid insurance

coverage to the motorcycle, this Court fixes 30% negligence on the part of the

rider of the motorcycle.

13.Admittedly, the deceased was aged about 21 years and he was a

Fisherman by profession. The Tribunal had rightly fixed the monthly income of

the deceased at Rs.10,000/- and the same does not warrant any interference.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.168 of 2023

However, the Tribunal had not awarded any future prospects as required under

law. Hence, considering the age of the deceased, 40% (Rs.4,000/-) future

prospects is added. Since the deceased is a bachelor, 50% of his income is

deducted towards his personal expenses. Accordingly, the monthly income of the

deceased is fixed at Rs.7,000/- (Rupees Seven Thousand only). By applying the

relevant multiplier '18', the loss of income of the deceased would come around

Rs.15,12,000/- (Rupees Fifteen Lakhs and Twelve Thousand only).

14.Further, the Tribunal had not awarded compensation towards loss of

love and affection to the second and third claimants, who are the father and

brother of the deceased. Hence, this Court awards a sum of Rs.40,000/- each

(Rupees Forty Thousand only) to the second and third claimants towards loss of

love and affection. In the result, the claimants are entitled to the following

compensation:

                             S.No.                       Heads                        Amount
                                  1.    Loss of Income                          Rs.15,12,000/-
                                  2.    Loss of filial consortium               Rs.    44,000/-
                                  3.    Loss of love and affection to the third Rs.    80,000/-
                                        and fourth claimants
                                  4.    Loss of Estate                          Rs.    16,500/-


https://www.mhc.tn.gov.in/judis
                                                                                       C.M.A.(MD)No.168 of 2023


                                  5.    Funeral Expenses                         Rs.   16,500/-
                                                                           Total Rs.16,69,000/-

15.Accordingly, this Civil Miscellaneous Appeal is dismissed and the

compensation awarded by the Tribunal is enhanced as stated above. Since the

contributory negligence is fixed on the part of the deceased, 30% of amount

(i.e.,Rs.5,00,700/-) from the total compensation is deducted. Accordingly, the

claimant is entitled to the compensation of Rs.11,68,300/- (Rs.16,69,000-

Rs.5,00,700=Rs.11,68,300/-) (Rupees Eleven Lakhs Sixty Eight Thousand and

Three Hundred only).

12.The Insurance company is directed to deposit the entire compensation

as modified by this Court i.e., Rs.11,68,300/- (Rupees Eleven Lakhs Sixty Eight

Thousand and Three Hundred only) with interest at the rate of 7.5% from the date

of petition till the date of realization to the credit of M.C.O.P.No.1550 of 2018, on

the file of the Motor Accident Claims Tribunal/Special Sub Court, Tirunelveli