Madras High Court
The Oriental Insurance Company ... vs Mani on 30 March, 2023
C.M.A.(MD)No.1035 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD)No.1035 of 2022
and
C.M.P.(MD)No.10260 of 2022
The Oriental Insurance Company Limited,
Through its Branch Manager,
Thilai Nagar, Lakshmi Complex,
No.73-B-1, Salai Road,
Trichy Town, Trichy District. ...Appellant/2nd Respondent
Vs.
1.Mani
2.Thirumamani
3.Rajathi
4.Rajeshwari
5.Chittu
6.Selvam ...Respondents/Petitioners
7.Vimalan ...Respondent/Respondent
PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of
the Motor Vehicles Act, 1988, to set aside the decree and judgment dated
11.04.2022 made in M.C.O.P.No.253 of 2019 on the file of the learned
Additional District and Sessions Court, Sivagangai.
1/10
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C.M.A.(MD)No.1035 of 2022
For Appellant : Mr.A.Ilango
For Respondents : No Appearance
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the
quantum of compensation awarded by the Tribunal and the negligence
fixed on the part of the lorry driver.
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)While the deceased was riding his two wheeler proceeding
from Thiruppathur to Pudukottai main road at Chillampatti vilakku, the
driver of the Torres Lorry bearing Registration No.TN-65-AK-0052,
which was proceeding in front of the two wheeler of the deceased,
applied sudden break without any signal, due to which the deceased
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C.M.A.(MD)No.1035 of 2022
dashed against the lorry. As a result, the deceased succumbed to injuries.
The first and second petitioners are the parents of the deceased. The
third to fifth petitioners are the sisters and sixth petitioner is the brother
of the deceased. At the time of accident, the the deceased was 22 yeas
old and earning a sum of Rs.25,000/- per month by working as load man
in H.P.Gas company. Hence, the claim petition was filed.
(ii)The second respondent before the Tribunal took a stand that
the driver of the Lorry had parked the Lorry in the left side of the road
adhering to traffic rules. At that time, the deceased drove his motorcycle
in a rash and negligent manner and dashed against the back side of the
lorry. The accident was occurred only due to the rash and negligent
driving of the deceased. Further, the deceased had not worn helmet and
had not valid license at the time of accident.
4. Before the Tribunal, on the side of the claimant P.W.1 and
P.W.2 were examined and Ex.P1 to Ex.P21 were marked. On the side of
the respondent no oral and documentary evidence had been marked.
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C.M.A.(MD)No.1035 of 2022
5.The tribunal on appreciation of entire evidence available on
record had fixed the liability on the driver of the lorry and awarded the
following compensation:
S.No. Description Amount
1. Loss of Dependency Rs.18,14,400/-
2. Loss of Estate Rs. 16,500/-
3. Loss of Filial Consortium Rs. 88,000/-
(2*44,000)
4. Funeral Expenses Rs. 16,500/-
Total Rs.19,35,400/-
Challenging the same, the present Civil Miscellaneous Appeal has been
filed by the Insurance Company.
6.I have heard the learned counsel appearing on either side and
also perused the materials available on record.
7.The learned counsel for the appellant would submit that the
trial Court has not even considered the nature of accident. The deceased
was coming behind the lorry in a high speed and he only dashed against
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C.M.A.(MD)No.1035 of 2022
the lorry. That itself clearly shows that the deceased was only rash and
negligent in driving. Further, the deceased had not worn helmet and he
had not valid license at the time of accident. Hence, contributory
negligence has to be fixed on the deceased.
8.The learned counsel for the respondent would submit that the
accident was occurred due to the negligent driving of the lorry and the
trial Court had analyzed the entire materials available on record and
arrived the compensation.
9.In view of the above submission, now the point arises for
consideration in this appeal is:
(1) Whether the Tribunal is right in fixing the entire
negligence on the part of the lorry driver?
10.It is relevant to note that the deceased had rode the
motorcycle and hit against the lorry, which was proceeded in front of the
motorcycle. The occurrence took place in the highway. Though the
Insurance Company had taken a stand that the lorry was parked in the left
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C.M.A.(MD)No.1035 of 2022
side of the road and the deceased only dashed against the parked lorry, no
one had been examined on the side of the Insurance Company to
substantiate the same.
11.The stand of the claimants is that the lorry was proceeded in
front of the motorcycle and at the time, the lorry driver had suddenly
applied break. Therefore, the deceased hit the lorry from the behind.
P.W.2 was also examined in this regard.
12.It is relevant to note that when the person is riding a two
wheeler, that too in the highway, particularly when the heavy vehicles are
proceeding in front of the two wheeler, he ought have maintained
reasonable distance. If the deceased had maintained such reasonable
distance, even if the lorry driver applied sudden break, the two wheeler
of the deceased would not have hit the lorry. Whereas, the dashing of
two wheeler against the lorry and the nature of damages to the vehicles
clearly indicate that the two wheeler was ridden in a high speed and very
close to the lorry proceeding ahead of the two wheeler without
maintaining any distance.
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C.M.A.(MD)No.1035 of 2022
13.In this regard, the learned counsel for the appellant had
relied upon the judgment of the Hon'ble Supreme Court in the case of
Nishan Singh and others vs. Oriental Insurance Company Ltd., and
others [2018 (1) TN MAC 745 (SC)], in which it has been held that the
car following Truck, expected to maintain a safe distance of atleast 2-3
seconds gap in ideal conditions to avert collision and to allow following
driver to respond as per Regulation 23 of the Rules of Road Regulations,
1989 and liability had to be fixed on the car, which hit the Truck. Further
in the case of Bajaj Allianz General Insurance Company Ltd., vs.
Amutha Devi and others [2020 (1) TN MAC 169 (DB)], this Court had
fixed 40% contributory negligence on the part of the motorcycle.
14.It is also relevant to note that there is no evidence available
on record to show that the deceased had valid driving license and worn
helmet at the relevant point of time. Such view of the matter, this Court
is of the view that the entire negligence fixed by the Tribunal on the part
of the lorry driver is not proper and certainly there must be some
negligence to be fixed on the part of the deceased.
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C.M.A.(MD)No.1035 of 2022
15.Considering the reasons stated above, this Court fixes 30%
contributory negligence on the part of the deceased for driving the
motorcycle very close to the lorry proceeding ahead of the motorcycle.
The other heads awarded by the Tribunal remains unaltered.
16.In fine, this Civil Miscellaneous Appeal is allowed and the
compensation awarded by the Tribunal is reduced to Rs.13,54,780/-
(Rs.19,35,400-Rs.5,80,620(30%)) (Rupees Thirteen Lakhs Fifty Four
Thousand Seven Hundred and Eighty only)
17.The appellant/Insurance Company is directed to deposit the
compensation amount as modified by this Court i.e.,Rs.13,54,780/-
(Rupees Thirteen Lakhs Fifty Four Thousand Seven Hundred and Eighty
only) with interest at the rate of 7.5% per annum from the date of petition
till the date of realization to the credit of M.C.O.P.No.253 of 2019, on the
file of the Motor Accident Claims Tribunal /Additional District and
Sessions Court, Sivagangai within a period of one month from the date of
receipt of a copy of this judgment, less the amount, if any already
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C.M.A.(MD)No.1035 of 2022
deposited. On such deposit, the first and second claimants are entitled to
withdraw a sum of Rs.5,77,390/- each (Rupees Five Lakhs Seventy
Seven Thousand Three Hundred and Ninety only), the third to sixth
claimants are entitled to withdraw a sum of Rs.50,000/- each (Rupees
Fifty Thousand only), less the amount if any already withdrawn, by
making necessary application before the Tribunal. No costs.
Consequently, connected miscellaneous petition is closed.
30.03.2023
NCC : Yes/Nos
Index : Yes/No
Internet : Yes/No
ta
To
1.The Motor Accident Claims Tribunal/
Additional District and Sessions Court, Sivagangai.
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.1035 of 2022
N.SATHISH KUMAR, J.
ta
C.M.A.(MD)No.1035 of 2022
30.03.2023
https://www.mhc.tn.gov.in/judis
