Madras High Court
The Branch Manager vs Indira on 30 March, 2023
C.M.A.No.105 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.3.2023
CORAM:
THE HONOURABLE Mr.JUSTICE D.KRISHNAKUMAR
AND
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
Civil Miscellaneous Appeal No.105 of 2020
C.M.P.No.734 of 2020
The Branch Manager,
Shriram General Insurance Co. Ltd.,
Sitapura, Jaipur – 302 022. ... 2nd Respondent/Appellant
..Vs..
1. Indira
2. Brinda
3. Minor Priya rep. by her next friend
Guardian and mother Indira ... Petitioners 1 to 3/Respondents-1 to 3
4. Kannan ... Respondent – 1 /Respondent - 4
Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the Judgment and decree dated 31.1.2018 made in M.C.O.P.No.113 of 2016
on the file of II Additional District Court (Motor Accidents Claims Tribunal)
Tindivanam.
For Appellant : Mr.Dhakshnamoorthy
For Respondents 1 to 3 : Mr.G.Mohammed Aseef
For Respondent-4 : No appearance
*****
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C.M.A.No.105 of 2020
JUDGMENT
(Judgment of the Court was made by K.GOVINDARAJAN THILAKAVADI, J.)
The Insurance Company/Second respondent in M.C.O.P.No.113 of
2016 (Tindivanam Sub Court M.C.O.P.No.570 of 2013) on the file of Motor Accident
Claims Tribunal (II Additional District Court), Tindivanam is the appellant in this
appeal.
2. In the impugned award, the tribunal has granted compensation for
a sum of Rs.24,26,000/-. Aggrieved by the said award, the appellant Insurance
Company questioning the liability and quantum of compensation awarded by the
tribunal, preferred the instant appeal.
3 The case of the claimants before the tribunal is that on 11.2.2013
at about 14.00 hours, when the deceased Sekar was riding his two wheeler bearing
registration No.TN 19-X 7484 from Marakkanam to Tindivanam direction with
extreme left side on the road, a TATA ACE belonging to the first respondent
bearing registration No.TN-32-P 7643 came from same direction in a rash and
negligent manner without following the traffic rules, dashed on the deceased
Sekar's vehicle. Immediately, the deceased was taken to the Government hospital
at Tindivanam and referred to Government hospital, Chennai where he died at the
hospital due to the injuries succumbed to him. The claimants have filed the claim
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C.M.A.No.105 of 2020
petition claiming compensation of Rs.99,00,000/- for the death of the deceased
Sekar in the accident. To prove their contention, the claimants have examined
P.W.1 to P.W.2 and marked documents Ex.P1 to P9.
4. On the other hand, appellant/Insurance Company in their counter
affidavit resisted the claim of the petitioners stating that there is no negligence on
the part of the driver/first respondent before the tribunal, it is a collision where
two vehicles were involved in the accident. It is further stated that two wheeler
driven by the deceased was also at fault contributing to the accident. Hence, the
award ought to have been apportioned according to the contribution. Therefore,
claim petition is liable to be dismissed.
5. On the side of the respondents, R.W.1 and R.W.2 were examined.
Ex.R1 and R2 were marked.
6. The tribunal upon perusing the records and arguments advanced by
both sides, awarded a sum of Rs.24,26,000/- as compensation to the claimants.
Aggrieved by this, the Insurance Company is on appeal. In the appeal grounds, it is
stated that the F.I.R. registered against the driver, fourth respondent herein has
been closed as ''Mistake of Fact'' and as per the report of the police, the fault is
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C.M.A.No.105 of 2020
solely on the part of the rider of the two wheeler. Thus, the deceased was also at
fault. The complaint was registered only after a lapse of 10 days goes to show that
the deceased was only at fault and there is no negligence on the part of the first
respondent driver. Hence, the tribunal wrongly concluded that negligence is only
on the part of the first respondent driver is erroneous and therefore, the order of
the tribunal is liable to be set aside.
7 Heard the learned counsel appearing for the appellant/Insurance
Company, learned counsel appearing for the claimants/respondents and perused
the materials available on record.
8 The learned counsel appearing for the appellant takes us to the
evidence adduced by R.W.1 and R.W.2. R.W.1 is none other than the Inspector of
Police who had closed the F.I.R. as ''Mistake of Fact''. R.W.2 is an Officer who
investigated the case. However, before the tribunal, driver of the offending
vehicle was not examined to prove the manner of the accident. Moreover, R.W.1,
in his cross examination, categorically admitted that factum of closure of F.I.R.
was not intimated to the complainant and the same was forwarded to the Judicial
Magistrate Court. He also admitted that case was not registered by him. He had
not conducted any investigation about the accident. Further, the evidence of
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C.M.A.No.105 of 2020
R.W.2 would support the case of the appellant. R.W.2 had filed a investigation
report marked as Ex.R2 wherein it is stated that the accident caused when the
deceased vehicle hit against a tree. In his cross examination, R.W.2 made a
categorical admission that the driver of the insured vehicle had forwarded a letter
to his company stating that when he was driving the vehicle viz., TATA ACE bearing
registration No.TN-32-P 7643 on the occurrence date and place, a two wheeler
bearing registration No.TN 19 X 7484 which was driven in front of the TATA ACE
vehicle in a rash and negligent manner, without following the traffic rules and
applied sudden break which caused TATA ACE vehicle hit against the two wheeler.
The relevant portion of the statement made by R.W.2 in his cross examination, is
extracted hereunder:
''v/k/j/rh/M/2 mwpf;ifapy; thfdj;jpd;
chpikahsh; Md 1k; vjph;kDjhuh; fz;zd;
vd;gth; fpis nkyhsh; _uhk; $duy; ,d;Nud;!;
fk;bkdp flY}Uf;F vGj;Jg{ht
; khd fojk;
bfhLj;Js;shh; mjpy; ''fle;j 21.2.2013 khiy
06.00 kzpastpy; ehd; vdf;F brhe;jkhd TATA
ACE bearing registration No.TN 19 X 7484 vd;w vz;
bfhz;l thfdj;ij kuf;fhzj;jpy; ,Ue;J
jpz;otdk; nehf;fp te;J bfhz;L ,Ue;jnghJ
brhf;fe;jhy; g!; epiyak; mUfpy; vdf;F
Kd;dhy; TN 19 X 7484 vd;w vz; cs;s ,Urf;fu
thfdj;ij Xl;of; bfhz;L brd;w egh; ve;j
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C.M.A.No.105 of 2020
tpjkhd rhiy tpjpfisa[k; gpd;gw;whky;
jhWkhwhf Xl;of; bfhz;l egh; jpoh; vd;W gpnuf;
nghl;l fhuzj;jpdhy; ntW tHpapd;wp ehd;
,Urf;fu thfdj;jpd; gpd;dhy; nkhj
ntz;oajhfp tpl;lJ. ,jpy; vd; jtW VJk;
,y;iy''
Therefore, Ex.R2 investigation report cannot be taken into consideration. Hence,
on the question of negligence, the tribunal has rightly fixed the liability on the
first respondent/driver and accordingly, the tribunal has directed the respondents
1 and 2 jointly and severally liable to pay compensation to the claimants.
Therefore, no interference is called for.
9 The next challenge made by the appellant is about the quantum of
compensation awarded by the tribunal. According to the learned counsel appearing
for the appellant, as per the principles laid down by the Hon'ble Supreme Court in
National Insurance Co. Ltd. vs. Pranay Sethi and others reported in 2017(16)
SCC 680, compensation awarded by the tribunal under the head, ''Loss of Love and
affection and Consortium, i.e. Rs.1,00,000/- each, which seems to be on the higher
side. Taking into consideration of the above contention of the learned counsel
appearing for the appellant as well as the principles laid down by the Hon'ble
Supreme Court in Pranay Sethi case, a sum of Rs.80,000/- is awarded for loss of
Love and affection and Rs.40,000/- towards Consortium. In addition to that,
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C.M.A.No.105 of 2020
Rs.15,000/- is awarded towards loss of estate and Rs.25,000/- awarded by the
tribunal towards funeral expenses is reduced to Rs.15,000/-. In respect of
pecuniary benefits, award of the tribunal is not under challenge and therefore, the
claimants are entitled for compensation awarded by the tribunal. Therefore, this
Court is of the view that the award passed by the tribunal is required to be
modified as follows:
Heads Compensation
modified by this Court
Rs.
Loss of Pecuniary benefits 22,00,800/-
Loss of Love and affection 80,000/-
Consortium 40,000/-
Funeral expenses 15,000/-
Loss of estate 15,000/-
Total 23,50,800/-
The same is rounded off as Rs.23,51,000/-
10. The compensation awarded by the tribunal is modified/reduced
to Rs.23,51,000/-. Except the above modification, the award passed by the
tribunal is confirmed.
11. The claimants/respondents are entitled to compensation of
Rs.23,51,000/-(Rupees twenty three lakhs and fifty one thousand only) along with
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C.M.A.No.105 of 2020
interest at the rate of 7.5% p.a. from the date of petition till realization. The
appellant/Insurance company is directed to deposit the said compensation to the
credit of M.C.O.P.NO.113 of 2016 on the file of Motor Accident Claims Tribunal (II
Additional District Court) Tindivanam less the amount already deposited, along
with interest at the rate of 7.5% p.a. from the date of petition till realization,
within a period of eight weeks from the date of receipt of copy of the judgment.
On such deposit being made by the appellant/Insurance Company, the
claimants/respondents are entitled to withdraw their proportionate share as
apportioned by the tribunal by filing appropriate application.
12 As far as the third respondent minor's share is concerned, the
share amount shall be deposited in any one of the nationalised bank at Tindivanam
till the minor attains majority. The first petitioner who is mother of the minor, is
permitted to withdraw the accrued interest once in six months for the benefit of
the minor.
13. Consequently, the appeal stands partly allowed. No costs.
Connected miscellaneous petition is closed.
(D.K.K.J. K.G.T.J.)
30.03.2023
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
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C.M.A.No.105 of 2020
vaan
To
1. The II Additional District Court (Motor Accidents Claims Tribunal) Tindivanam.
2. The Branch Manager, Shriram General Insurance Co. Ltd.,Sitapura,
Jaipur – 302 022.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
https://www.mhc.tn.gov.in/judis
C.M.A.No.105 of 2020
D.KRISHNAKUMAR, J.
AND
K.GOVINDARAJAN THILAKAVADI, J.
vaan
Civil Miscellaneous Appeal No.105 of 2020
C.M.P.No.734 of 2020
https://www.mhc.tn.gov.in/judis
C.M.A.No.105 of 2020
Dated: 30.03.2023
https://www.mhc.tn.gov.in/judis
