Reliance General Insurance Co. ... vs Lakshmi
2023 Latest Caselaw 1972 Mad

                                                                              C.M.A. (MD)No.1198 of 2022


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 07.03.2023

                                                     CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                            C.M.A.(MD)No.1198 of 2022
                                                       and
                                            C.M.P.(MD) No.12221 of 2022

                Reliance General Insurance Co. Ltd.,
                Through its Divisional Manager,
                Having Office at Sri Meenakshi Plaza,
                1st Floor, Plot No.Hig 55,
                80 Feet Road, Anna Nagar,
                Madurai – 625 020.                              ... Appellant/ 2nd Respondent


                                                      Vs.
                1.Lakshmi
                2.Nachiarammal
                3.Ramanathan                                    ... Respondents 1 to 3/
                                                                       Petitioners 1 to 4

                4.Marimuthu                                     ... Respondents No.4/
                                                                       1st Respondent


                PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
                Motor Vehicles Act, 1988, against the award dated 24.06.2022 made in
                M.C.O.P.No.2094 of 2016 on the file of the Motor Accident Claims Tribunal,
                District and Sessions Judge, Communal Clash Cases Court, Madurai.




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                                                                                        C.M.A. (MD)No.1198 of 2022


                                           For Appellant            : Mrs.K.R.Shivashankari
                                           For Respondents          : Mr.P.F.Ferlin Castro for R1 to R3
                                                                      No Appearance for R4


                                                           JUDGMENT

Challenging the award passed by the Motor Accident Claims Tribunal,

District and Sessions Judge, Communal Clash Cases Court, Madurai, in

M.C.O.P.No.2094 of 2016, dated 24.06.2022, the appellant – Insurance Company

has filed this Civil Miscellaneous Appeal.

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:-

The deceased Manikandan, who is the husband of the first petitioner and

son of the petitioners 2 and 3 in the claim petition, was riding his motor cycle

bearing Registration No.TN-58-AF-1139 on 09.11.2015 at 9.00 p.m., on

K.K.Nagar Main Road, in front of Milliniam Mall, from North to South observing

the rules and regulation of the road. At that time, an Auto bearing Registration

No.TN-59-AM-6670, was proceeding in the same direction i.e., North to South

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1198 of 2022

with high speed, without indicating any signal and the driver of the Auto suddenly

applied the break and the deceased tried to turn his bike, despite the same the bike

hit the left back side of the Auto. As a result, the deceased fell down from the

bike, sustained head injuries and succumbed to injuries. He was practicing as

Junior Advocate at the relevant point of time and he was earning a sum of Rs.

25,000/- per month. Hence, the petitioners have filed the claim petition.

4. It is the case of the 2nd respondent -Insurance Company before the

Tribunal that the deceased was in a drunken stage and riding his Motor Cycle in a

rash and negligent manner and dashed against the Auto and the entire accident was

occurred as a result of the rash and negligent driving of the deceased. Further, it is

the case of the 2nd respondent – Insurance company that the compensation amount

claimed by the petitioners is too high.

5. To substantiate the case before the Tribunal, on the side of the

petitioners, P.W.1 and P.W.2 were examined and Ex.P1 to Ex.P10 were marked and

on the side of the 2nd respondent - Insurance Company, R.W.1 to R.W.3 were

examined and Ex.R1 was marked.

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1198 of 2022

6. The Tribunal, after considering the pleadings, oral and documentary

evidence and the arguments advanced on either side and also appreciating the

evidence on record, has fixed the following compensation with interest at the rate

of 7.5% per annum:

                             S.                     Heads                         Amount
                             No
                              1. Loss of Pecuniary Benefits               Rs.21,50,400/-
                              2. Loss of Estate                           Rs.   15,000/-
                              3. Funeral expenses                         Rs.   15,000/-
                              4. Consortium                               Rs. 1,20,000/-
                                                                    Total Rs.23,00,400/-

The Tribunal, in the total award amount, deducted 25% of the amount towards

contributory negligence on the part of the deceased, for not wearing the helmet

and awarded a sum of Rs.17,25,300/- as compensation to the petitioners.

Challenging the same, the present Civil Miscellaneous Appeal has been filed by

the 2nd respondent – Insurance Company.

7. Though several grounds have been raised in the appeal, the learned

counsel appearing for the 2nd respondent – Insurance Company has mainly focused

her argument that the deceased has contributed for accident and the evidences of

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1198 of 2022

P.W.2 and R.W.2 clearly show that the deceased hit the Auto, which was

proceeding head of the Motor Cycle in a rash and negligent manner and as a result,

he fell down and sustained head injuries. The Tribunal without considering the

evidence in this regard properly, has fixed the negligence as 75% on the 2nd

respondent - Insurance Company. She further submitted that the Tribunal fixed

the notional income of the deceased at Rs.12,000/- per month, which is highly

excessive and without any basis and therefore, the award of the Tribunal is to be

set aside.

8. The learned counsel appearing for the petitioners 1 to 3 would submit that

the Tribunal has clearly found that only due to negligent driving of the driver of

the Auto, the accident had occurred. Further, the notional income adopted by the

Tribunal is well-balanced and therefore, it does not require any interference.

9. I have heard the learned counsel appearing on either side and perused the

materials available on record.

10. The points arise for consideration in this Civil Miscellaneous Appeal are

as follows:

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1198 of 2022

1) Whether the percentage of deduction made by the Tribunal towards the

contributory negligence on the part of the deceased is proper? and

2) Whether the compensation awarded by the Tribunal in all the heads are

required to be modified?

11. Admittedly, the deceased hit the Auto, which was heading towards the

Motor Cycle in a busy road. The evidences adduced on the side of the petitioners

and the 2nd respondent – Insurance Company clearly show that the road is a busy

road and hot spot of the city, Madurai. It is the admitted fact of the petitioners that

the deceased hit the Auto in the left back side and due to such impact, the deceased

fell down and sustained head injury. Though it is stated in the claim petition as

well as in the evidence that the Auto driver drew the Auto in a rash and negligent

manner and applied the break, there is no material available on record to show that

the driver of the Auto was in fact driven the Auto in a rash and negligent manner

and applied sudden break and the tire mark also has not been collected by the

Investigating Agency. In fact, FIR has been registered as against the deceased and

after his death, the same has been closed. Be that as it may. When a person

driving in a two wheeler, particularly, in a busy area, ought to have maintained

some distance between the vehicle proceeding head of their vehicle. Whereas, the

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1198 of 2022

evidences of P.W.1 and R.W.2 clearly show that the deceased hit the motor cycle in

the left side of the Auto. Though it clearly shows that there is some ailment of

negligence on the part of the deceased, the contention of the petitioners that the

Auto was driven in a high speed and the deceased was riding the motor cycle in a

very slow speed, it defers logic. If such contention may possible, when the Auto is

coming from the opposite direction. Whereas, the Auto and the Motor Cycle were

proceeding with the same directions. If the Auto was driven in a high speed, the

deceased also would have proceeded with the same high speed. The contention of

the petitioners that the deceased was riding his Motor Cycle in a very slow manner

is highly improbable and riding the motorcycle in the same speed and hit the Auto

in the left rear side of the Auto clearly projects the defence herein that some

negligence on the part of the deceased. While riding the Motorcycle, there was no

reasonable distance maintained by the deceased. Therefore, this Court is of the

view that when there was a negligence on the part of the deceased, fixing the

liability as 75% on the Insurance Company is on the higher side.

12. Considering the over all situation, this Court is of the view that the

deceased, in fact, contributed for accident to some extent and therefore, the

apportionment of negligence has to be increased on the part of the deceased from

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1198 of 2022

25% to 40%. With regard to the contention of the learned counsel appearing for

the 2nd respondent – Insurance Company that the deceased was riding his

Motorycle in a drunken stage, though some fluid was found in the Postmortem

report, there is no concrete evidence available to show that there was a smell of

Alcohol at the time of conducting Postmortem. Therefore, the contention of the

2nd respondent – Insurance Company that the deceased was riding his Motorcycle

in a drunken stage cannot be countenanced. Be that as it may. Considering the

fact that the deceased also not wearing helmet and driven the Motorcycle very

closure to the Auto and hit against the Auto in the left rear side, it cannot be said

that only Auto driver is fully responsible for the accident. Though it is the duty of

the Auto to use the horn or indicator, while taking turn, at the same time, the

negligence on the part of the deceased also cannot be ignored all together.

13. In view of the above, this Court fixes 60% negligence on the part of the

2nd respondent – Insurance Company and 40% negligence on the part of the

deceased. In respect of other aspects are concerned, the Tribunal fixed the

notional income of the deceased at Rs.12,000/- per month. Admittedly, the

deceased was a practicing advocate at the relevant point of time and the same was

established by way of evidence that he was working as Advocate Clerk in the

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1198 of 2022

Advocate Office. Normally, any ordinary Clerks without any legal knowledge,

can easily get such income in the Advocate Office. Such being a position, notional

income fixed by the Tribunal at Rs.12,000/- per month cannot be held to be

excessive. The Tribunal has correctly applied the multiplier of 16, considering the

age of the deceased. Further, as per the judgment of the Hon'ble Supreme Court in

National Insurance Company Ltd. Vs. Pranay Sethi and others reported in 2017

16 SCC 680, the Tribunal has correctly deducted 40% towards the future

prospects. Though the Tribunal has awarded a sum of Rs.1,20,000/- towards

consortium to all the petitioners, only the wife is entitled to get consortium.

Therefore, the first petitioner is entitled to get Rs.40,000/- towards loss of

consortium and the petitioners 2 and 3 are entitled to get Rs.40,000/- each towards

loss of love and affection or parental consortium.

14. In view of the above, this Court is of the view that the amount awarded

by the Tribunal does not require any interference and the same is confirmed,

except the negligence fixed by the Tribunal on the part of the deceased as 25%. If

40% contributory negligence is fixed on the part of the deceased, the

compensation amount comes to Rs.13,80,240/-. Therefore, a sum of

Rs.13,80,240/- is awarded as compensation.

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1198 of 2022

15. In the result, this Civil Miscellaneous Appeal is partly allowed. The 2nd

respondent – Insurance Company is directed to deposit the compensation amount

Rs.13,80,240/- along with interest at the rate of 7.5% p.a., less the amount, if any,

already deposited, from the date of petition till the date of deposit, within a period

of 12 weeks from the date of receipt of a copy of this order, if not deposited

earlier. On such deposit, the first petitioner is entitled to get a sum of

Rs.7,80,240/-. The petitioners 2 and 3 are entitled to get a sum of Rs.3 lakhs each.

The petitioners 1 to 3 are permitted to withdraw 50% of their share amount with

proportionate interest and cost and the remaining 50% of their share amount is

ordered to be invested in any one of the nationalized Bank for a period of three

years and the same may be withdrawn with permission of the Court, if any need

arises prior to that. The excess amount, if any, shall be refunded to the 2nd

respondent – Insurance Company. No costs. Consequently, connected

miscellaneous petition is closed.

07.03.2023 NCC : Yes/No Index : Yes/No Internet : Yes/No vsm

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1198 of 2022

To

1.The Motor Accident Claims Tribunal, District and Sessions Judge, Communal Clash Cases Court, Madurai.

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.1198 of 2022

N.SATHISH KUMAR, J.

vsm

C.M.A.(MD)No.1198 of 2022

07.03.2023

https://www.mhc.tn.gov.in/judis