M/S.United India Insurance ... vs Paulraj
2023 Latest Caselaw 1975 Mad

                                                                                C.M.A. (MD)No.544 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.544 of 2022


                M/s.United India Insurance Co.Ltd.,
                Divisional Office,
                No.1, Post Office Road,
                Palayamkottai,
                Tirunelveli District                              ... Appellant/2nd respondent
                                                      Vs.

                1.Paulraj
                2.Shenpagavalli
                3.Kumutha                                   ... Respondents 1 to 3/Claimants

                4.P.Mariammal                               ... Respondent No.4/1st Respondent

                5.National Insurance Company Ltd.,
                1st Floor, No.135-1, Rose Building,
                Main Road,
                Kovilpatti,
                Tuticorin District                          ...Respondent No.5/3rd Respondent


                PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
                Motor Vehicles Act, to set aside the judgment and decree dated 16.09.2021 made
                in M.C.O.P.No.319 of 2016 on the file of the Motor Accident Claims Tribunal
                (Special Sub Court) Tirunelveli.




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                                                                                      C.M.A. (MD)No.544 of 2022




                                          For Appellant    : Mr. B.Rajesh Saravanan

                                          For R1 to R3     : Mr. V.Esakki Muthu


                                                         JUDGMENT

Challenging the judgment and decree made in M.C.O.P.No.319 of 2016

on the file of the Motor Accident Claims Tribunal (Special Sub Court) Tirunelveli,

this Civil Miscellaneous Appeal has been filed. The appellant herein is the insurer

of the lorry bearing Reg.No.TN-67-A-6424.

2.The deceased Marikannan is the unmarried son of the respondents 1

and 2 and the 3rd respondent is the sister of the deceased. The deceased was

Carpenter by profession. On 01.02.2016, at about 20.30 hours, while he was riding

his motorcycle bearing Reg.No.TN-69-AQ-1261 from Madurai to Tirunelveli in

the National Highways Road, Lorry bearing Reg.No.TN-67-A-6424 insured with

the appellant/Insurance Company, came from the same direction and hit the

motorcycle from behind, as a result, the deceased succumbed to injuries on the

spot itself. The First information Report came to be registered in this regard in

Crime No.45 of 2016 under Section 304(A) IPC.

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.544 of 2022

3. It is the contention of the appellant/Insurance Company that the

accident occurred on account of rash and negligent driving of the deceased and the

deceased drove the motorcycle in the opposite direction and hit against the lorry.

Though a criminal case was registered, after completion of enquiry the same has

been closed as 'mistake of fact'.

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

were examined and Exs.P.1 to P.9 were marked. On the side of the respondents,

R.W.1 to R.W3 were examined and Exs.R1 to R5 were marked.

5. Based on the evidence adduced before it, the Tribunal had come to the

conclusion that the accident had occurred on account of the negligence of the

driver of the lorry. By holding so, the Tribunal also fixed the notional income of

the deceased at Rs.8,000/- (Rupees Eight Thousand only) per month and 40% for

future prospects has been added and finally, the Tribunal has passed the

compensation as follows:

                 SL.NO.                        HEADS                           CALCULATION


https://www.mhc.tn.gov.in/judis
                                                                                            C.M.A. (MD)No.544 of 2022


                 1.               Salary                               Rs.8,000/- p.m
                 2.               Future Prospects at 40%              Rs.8000 + Rs.3200/- = Rs.11,200
                 3.               ½ of the income (i)deducted as Rs.11,200/-            -       Rs.5600/-         =
                                  personal expenses of the deceased Rs.5600/-

4. Compensation after multiplier of Rs.5600 X 12 X 17= Rs.11,42,400/-

17 is applied

5. Loss of Consortium to the parents Rs.40,000/-

                 6.               Loss of Estate                       Rs.15,000/-
                 7.               Funeral Expeses                      Rs.15,000/-
                                  Total Compensation Awarded           Rs.12,12,400/-

6. Challenging the same, the insurer of the lorry has preferred the present

Civil Miscellaneous Appeal.

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

counsel appearing for the appellant mainly submitted that there was contributory

negligence on the part of the deceased. It is his submission that the accident is not

occurred as stated in the First Information Report, whereas the accident took place

in a different manner. It is his contention that the deceased drove the motorcycle

from the opposite direction and hit against the lorry, which has been probabilized

by the Motor Vehicle Inspector's report. It is his contention that if the lorry hit the

motorcycle from behind, there would have been damages on the rear-side of the

motorcycle, whereas the Motor Vehicle Inspector's report would clearly show that

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.544 of 2022

the entire damage to the motorcycle is on the front side. The Motor Vehicle

Inspector's report clearly substantiates the above version of the appellant/

Insurance Company. P.W.1 in his evidence has admitted to the effect that the

police has closed the case as 'mistake on fact' finding negligence on the part of the

deceased. Pointing out the same, the learned counsel for the appellant submitted

that the deceased also contributed for the accident.

8. That apart, it is his further contention that from the insurer of the

motorcycle, the claimants have also received Rs.1,00,000/- (Rupees One Lakh

only) and that has not been taken into consideration by the Tribunal. Hence, he

submitted that the award passed by the Tribunal is not according to law. He would

submit that percentage of contributory negligence has to be fixed by this Court and

a sum of Rs.1 lakh given to the claimants by the insurer of the two wheeler has to

be taken into consideration.

9. Per contra, the learned counsel appearing on behalf of the respondents

1 to 3/claimants would submit that except the submissions and mere pleadings,

there is no evidence adduced on the part of the appellant/Insurance Company to

prove the contributory negligence on the part of the deceased. The driver of the

lorry has not been examined, though he was very much available at the relevant

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.544 of 2022

point of time. His further contention is that while fixing negligence, damages of

the vehicle are irrelevant. He would also submit that even the damages on the front

side is possible when the vehicle was coming behind and hit the motorcycle in

such a speed, possibility of the motorcycle turning in the same direction cannot be

ruled out. The specific submission of the learned counsel for the appellant is that

when the appellant/Insurance Company has an opportunity to prove their case

before the Tribunal, the appellant/Insurance Company has not adduced any

evidence in this regard. Therefore, now the theory of contributory negligence

cannot be advanced merely on the basis of surmises and conjectures.

10. It is further submission of the learned counsel for the respondents 1

to 3/claimants that merely because a sum of Rs.1 lakh was received from the

insurer of the motorcycle based on the insurance policy, which is purely a contract,

the same cannot be deducted in the compensation.

11. I have given my anxious consideration to the submissions made on

either side and carefully perused the materials available on record.

12. In respect of the monthly income fixed by the Tribunal for arriving at

compensation, the appellant/Insurance Company has not raised any dispute. In the

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.544 of 2022

light of the submissions made by the learned counsel for the appellant with regard

to the contributory negligence, it is stated in the counter filed by them that

accident took place in a different manner other than the place mentioned in the

First Information Report. However, to substantiate the same, no evidence was

let- in by the Insurance Company. Though the Motor Vehicle Inspector's reports

which are exhibited as Exs.R3 and R4, would indicate that the damages on the

motorcycle are only on the front side, merely on the basis of the damages found in

the vehicle, this Court is unable to come to the conclusion that the accident only

took place as pleaded by the appellant. The damages in various parts of the vehicle

depend upon the speed and velocity of the particular vehicle. There cannot be any

certainty in damages. Even in some cases, damages may not be apparently visible.

With regard to the place where the vehicle hit first and impact of the same, there

may be possibility for the vehicle turning its direction, rolling down and throwing

out. Therefore, merely on the basis of the damages found in the vehicle, it is

highly difficult to fix contributory negligence unless the contributory negligence

on the part of the deceased is established by cogent evidence. There was no reason

as to why the appellant/Insurance Company has not examined the driver of the

lorry. That apart, P.W.1 one of the eye witnesses has clearly spoken that the

accident took place in the same direction. The evidence is not dented to

substantiate the version of the Insurance Company.

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13. In such view of the matter, this Court is of the view that unless the

concrete evidence to prove that there is contributory evidence, merely on the basis

of the damages alone it is highly difficult to countenance the submission of the

learned counsel for the appellant to hold that there was contributory negligence on

the part of the deceased. With regard to other submissions that the respondents 1 to

3/claimants have received a sum of Rs.1 lakh as compensation from the insurer of

the two wheeler and therefore the same has to be deducted from the entire

compensation, this Court is unable to appreciate the said submission also. A sum

of Rs.1 lakh was paid under the insurance policy based on the statutory liability

and contractual terms between the insurer and insured i.e purely based on the

contract entered into between the owner and the insurer and merely because the

said amount has been paid, it cannot be said that the amount has also to be

deducted in the compensation.

14. In respect of other aspects, the Tribunal has in fact fixed the notional

income at Rs.8,000/- and added future prospects at 40% as per the law declared by

the Hon'ble Apex Court in the National Insurance Co. Ltd Vs. Pranay Sethi

reported in 2017(2) TNMAC 609 and adopted '17' multiplier considering the age of

the deceased, who was aged about 26 years at the time of death. Following the

ratio of the Apex Court and based on the other conventional damages, the Tribunal

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awarded the compensation. In such view of the matter, as far as quantum awarded

by the Tribunal, this Court finds no illegality and accordingly, this Court is of the

view that the contributory negligence as pleaded has not been established by the

appellant/Insurance Company. Hence, the contention of the appellant before this

Court cannot be countenanced.

15.In fine,this Civil Miscellaneous Appeal is dismissed and the judgment

and decree dated 16.09.2021 made in M.C.O.P.No.319 of 2016 on the file of the

Motor Accident Claims Tribunal(Special Sub Court)Tirunelveli, is confirmed.No

costs.

16. It is represented that 50% of the compensation amount has already

been deposited. Remaining 50% of the amount shall be deposited within a period

of 1 month from the date of receipt of a copy of this order with interest as ordered

by the Tribunal. Apportionment made by the Tribunal is well balanced and does

not warrant any modification. While ordering payment to the claimants, the

Tribunal shall also ensure that proper court fee is paid and if not, the same would

be properly recovered.

07.03.2023 Index : Yes/No Internet : Yes/No CM

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.544 of 2022

To

1.The Motor Accident Claims Tribunal (Special Sub Court) Tirunelveli.

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.544 of 2022

N.SATHISH KUMAR, J.

CM

Judgment made in C.M.A.(MD)No.544 of 2022

07.03.2023

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