Madras High Court
The Oriental Insurance Company Ltd vs S.Sekar on 28 November, 2023
Author: R.Subramanian
Bench: R.Subramanian
C.M.A.No.2880 of 2023
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
C.M.A.No.2880 of 2023
and
C.M.P.No.27017 of 2023
The Oriental Insurance Company Ltd.,
Third Party Cell, 2nd Floor (HUB)
No.135, Prakasam Salai, Broadway,
Chennai – 600 108. ...Appellant
Vs.
1.S.Sekar
2.S.Manimegalai
3.K.Rangasamy ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the order dated 24th day of November, 2022
made in MCOP.No.3259 of 2020, on the file of Motor Accident Claims
Tribunal, (Special Sub Court No.2, Motor Accident Claims Petitions), Small
Causes Court, Chennai.
For Appellant : Mr.Elveera Antionette Ravindran
For Respondents : Mr.N.Kamaraj for Caveator / R1
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.2880 of 2023
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
The Insurance Company is on appeal aggrieved by the award of a
sum of Rs.24,68,800/- as compensation for the death of one Vignesh in a
motor accident that occurred on 28.10.2020 at about 4.30 p.m.
2. According to the claimants, the said Vignesh was riding the
motorcycle bearing Reg.No.TN-18-BB-6016 from Tambaram to Puzal bye-
pass road and he hit the lorry which was parked on the carrisge way near
Kallikuppam toll gate. As a result of the impact, the said Vignesh was
thrown off the vehicle and he died on the same day at Government Stanley
Hospital. Terming the parking of the lorry on the carriage way as negligent
act, the claimants sought for compensation from the Insurance Company.
The quantum of compensation claimed was sought to be supported by the
fact that the deceased was a Mechanical Engineer, working as a Trainee and
earning about Rs.20,000/- per month.
https://www.mhc.tn.gov.in/judis
3. The Insurance Company resisted the claim contending that the
accident did not occur in the manner suggested and it was over-speeding by
the deceased, that was the reason for the accident. It was also contended
that there was enough space in the road for the two-wheeler to pass-by,
despite the parked vehicle. The age, qualification and income particulars
were denied and the claimants were put to strict proof of the same.
4. At trial before the Tribunal, the 1 st petitioner Sekar was examined
as PW1 and one R.Manikandan and Anbuselvan were examined as PW2
and PW3. Exs.P1 to P35 were marked. The copy of the FIR, Rough sketch
and accident register were marked as Exs.P1 to P3. On the side of the
Insurance Company one Arumugam the investigator was examined as RW1
and Exs.R1 and R2 were marked.
5. The Tribunal on a consideration of the evidence, particularly the
FIR and rough sketch concluded that the parking of the lorry in the no
parking area amounted to negligence and hence, the Insurance Company
https://www.mhc.tn.gov.in/judis
would be liable to pay the compensation as the Insurer of the lorry. On the
question of apportionment of negligence, the Tribunal found that the
accident could have been avoided if the two-wheeler rider was a little careful
and hence attributed 10% of the negligence to him.
6. On the quantum, based on the salary slips produced as Ex.P30 the
Tribunal took the income at Rs.15,635/-, added 40% towards future
prospects and deducted 50% towards personal expenses, as the deceased
was a bachelor and fixed the loss of dependency at Rs.23,58,720/-. The
Tribunal granted a sum of Rs.80,000/- towards loss of consortium,
Rs.15,000/- each towards loss of estate and funeral expenses. Thus, the
total compensation worked out to Rs.24,68,720/- and the same was rounded
off to Rs.24,68,800/-. After deducting 10% towards contributory
negligence, the Tribunal fixed the liability of the Insurance Company at
Rs.22,21,920/-. The Tribunal also apportioned the compensation between
the claimants who are the parents of the deceased at 2/3rd for the mother and
1/3rd for the father. Aggrieved the Insurance Company is on appeal.
https://www.mhc.tn.gov.in/judis
7. We have heard Mr.Elveera Antionette Ravindran, learned counsel
appearing for the appellant.
8. Mr.Elveera Antionette Ravindran, learned counsel appearing for the
appellant would point out that the negligence attributed to the deceased at
10% is too low, considering the facts and circumstances of the case. The
learned counsel would submit that the road being near to toll gate was very
wide and there was enough space for the vehicles to pass-by, despite the
parked lorry. Therefore, the Tribunal should have assigned a larger
percentage for negligence than 10% which has been fixed.
9. We have examined the FIR, rough sketch and the accident register.
No doubt, there was enough space available, we cannot assume that the
entire road was vacant at the relevant point of time. It has been repeatedly
pointed out that the parking in the carriage way or a four lane road itself is a
negligent act and such parking would amount to 100% negligence on the
part of the driver of the lorry concerned. The Hon'ble Supreme Court has
https://www.mhc.tn.gov.in/judis
held that parking of vehicles on carriage way in such place is a crime and
the driver of the lorry should be burdened with 100% negligence. Anyway
the Tribunal has taken the negligence at 90%, while apportioning negligence
at 10% on the rider of the two-wheeler. We see no reason to interfere with
the said finding. On the quantum also we find that the Tribunal applied the
correct principles as laid down by the Hon'ble Supreme Court.
10. We do not find any reason to entertain this appeal. The appeal
therefore fails and it is accordingly dismissed. No costs. Consequently, the
connected miscellaneous petition is closed.
(R.S.M.,J.) (N.S.,J.)
28.11.2023
dsa
Index :No
Internet :Yes
Neutral Citation :No
Speaking order
https://www.mhc.tn.gov.in/judis
To
The Motor Accident Claims Tribunal,
Special Sub Court No.2, Motor Accident Claims Petitions,
Small Causes Court, Chennai.
https://www.mhc.tn.gov.in/judis
R.SUBRAMANIAN, J.
and
N.SENTHILKUMAR, J.
dsa
28.11.2023
https://www.mhc.tn.gov.in/judis
