Madras High Court

The United India Insurance Co. Ltd vs Arumugam on 11 September, 2023

CMA No.1334/2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE : 11.09.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No.1334 of 2023
and
Cross Objection No.51 of 2023
and
C.M.P.No.13344 of 2023 in C.M.A.No.1334 of 2023

C.M.A. No. 1334 of 2023

The United India Insurance Co. Ltd.,
5 Big Bazaar Street,
Dharapuram – 638 656. ... Appellant

Versus

1.Arumugam
2.Valliammal
3.Prakash @ Kaliraj
... Respondents

PRAYER : Civil Miscellaneous Appeal has been filed under Section 173
of the Motor Vehicles Act, 1988, against the award dated 02.02.2023
made in M.C.O.P.No.318 of 2016 on the file of the Motor Accident
Claims Tribunal, Tiruppur (III Additional District and Sessions Judge),
Dharapuram.

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CMA No.1334/2023

For Appellant : Mr.D.Bhaskaran

For Respondents : R1 and R2 - Mr. R. Nalliyappan
R3 - No Appearance

Cross Obj. No. 51 of 2023:
1.Arumugam,
2.Valliammal ... Cross objectors

Versus

1.The United India Insurance Co Ltd.,
5 Big Bazaar Street,
Dharapuram – 638 656.

2.Prakash @ Kaliraj
... Respondents

PRAYER : Cross Objection filed under Order XLI Rule 22 of the Civil
Procedure Code to enhance the award with interest at the rate of 18% per
annum and costs.

For Cross objectors : Mr. R.Nalliyappan

For Respondents : R1- Mr. D.Bhaskaran
R2 - No Appearance

COMMON JUDGMENT

The Insurance Company has preferred the above appeal

challenging the finding with regard to negligence and the quantum of

compensation. The claimants have filed the cross objection seeking

enhancement of the compensation.
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CMA No.1334/2023

2. The respondents 1 and 2/Cross Objectors filed a claim petition

stating that on 20.08.2015 at about 9.30 P.M, when the deceased

A.Satheesh @ Satheeshkumar was riding his two wheeler bearing

Reg.No.TN 57 U 9339 with his friend Saravanan as a pillion rider at

Keeranur in the Dharapuram to Palani road near Dasanaickenpatty Milk

Society on the extreme left side of the road, the rider of the motorcycle

bearing Registration No.TN 78 A 6613, insured with the appellant

applied sudden brake and took a right turn without any signal in a rash

and negligent manner as a result of which, the vehicle ridden by the

deceased hit the insured vehicle and the deceased sustained fatal injuries;

that the deceased was a Coolie earning Rs.15,000/- per month and hence,

they were entitled to compensation of Rs.20,00,000/-.

3. The third respondent herein remained exparte before the

Tribunal.

4. The appellant/insurance company resisted the claim petition

stating that the accident occurred only due to the negligence of the

deceased; that the deceased did not have a valid driving license and came

in a rash and negligent manner and hit the insured vehicle; and that in
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CMA No.1334/2023

any case, the compensation claimed is excessive and prayed for dismissal

of the claim petition.

5. The respondents 1 and 2 examined P.W.1 and P.W.2 and

marked twelve documents as Exs.P1 to P12. The appellant did not

examine any witness and mark any document.

6. The Tribunal, after taking into consideration the evidence on

record, awarded a total compensation of Rs.18,49,000/- to the

respondents 1 & 2/Cross Objectors herein.

....................................

7. The learned counsel for the appellant/insurance company

submitted that the accident took place only on account of rash and

negligent riding of the deceased; that the rough sketch/Ex.P3 would show

that the version of the alleged eye-witnesses is not correct; that as per the

rough sketch, the rider of the insured vehicle was on the extreme left hand

side of the road and there is nothing to suggest that he had taken a right

turn; that the deceased came in a rash and negligent manner and hit the

insured vehicle from behind; that therefore, the Tribunal ought not to

have fixed entire negligence on the rider of the insured vehicle. The

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CMA No.1334/2023

learned counsel also pointed out the contradictions in the evidence of

P.W.1 and P.W.2 and also the fact that the pillion rider, who was

the first informant, was not examined before the Tribunal and hence,

prayed for reduction of compensation.

8. The learned counsel for the respondents 1 and 2/

Cross Objectors, per contra, submitted that the rider of the insured

vehicle was not examined by the Insurance Company; that in the absence

of any evidence let in on the side of the appellant, the Tribunal rightly

accepted the evidence of P.W.1 and P.W.2 and fixed the entire negligence

on the rider of the two-wheeler. The learned counsel further submitted

that the notional income fixed by the Tribunal at Rs.8,000/- per month is

meagre and prayed for enhancement of compensation.

9. Though notice has been served on the third respondent, none has

entered appearance on behalf of him.

10. Heard the learned counsel for the appellant/insurance company

as well as the respondents 1 and 2/Cross Objectors and perused the

materials available on record.

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CMA No.1334/2023

11. On perusal of the records, this Court finds that the respondents

1 and 2/Cross Objectors examined P.W.1 and P.W.2 on their side. P.W.2

is an eyewitness to the occurrence. It is also seen that the pillion rider,

who travelled with the deceased, has not been examined by the

respondents 1 and 2 before the Tribunal. The appellant had also not

examined the rider of the offending vehicle to prove the manner in which

the accident took place. The only evidence available before the Tribunal

was the evidence of P.W.2 and the documents pertaining to the criminal

case. Ex.P.3/the rough sketch prepared during investigation shows that

the accident took place on the left side of the road i.e., on the Eastern

side, when both the deceased and the rider of the offending vehicle were

travelling from North to South. P.W.2 had admitted in the cross

examination that he was relative of the deceased. He had not lodged any

complaint. Further P.W.2 had admitted that the deceased had dashed

against the two-wheeler insured with the appellant. The relevant portion

of the Cross examination of P.W.2 is extracted below:

'',we;Jnghd rjP!; ,Urf;fu thfdj;ij Xl;obrd;W jdf;F Kd;dhy; brd;w ,Ur;rf;fu thfdj;jpy; nkhjpjj; hd; ,e;j tpgj;J Vw;gl;lJ vd;why; rhpjhd;'' Therefore, it is clear from the evidence on record that the rider of the https://www.mhc.tn.gov.in/judis

CMA No.1334/2023

insured vehicle had stopped the vehicle and the deceased had hit the

vehicle from behind. The deceased ought to have been careful and must

have maintained a safe distance from the insured vehicle. Therefore, in

the circumstances, this Court is of the view that the deceased also

contributed to the accident.

12. Considering all the above facts, including that the respondents

1 and 2 have not examined the pillion rider and the appellant has not

examined the rider of the offending vehicle, coupled with the evidence of

P.W.2 and the criminal case records, this Court is of the view that it

would be reasonable to fix 35% contributory negligence on the deceased

for not maintaining a safe distance from the vehicle which was going in

front of him.

13. As regards quantum of compensation, it is the case of the

Cross Objectors/respondents 1 and 2, that though the accident took place

in the year 2015, the Tribunal had fixed a meagre income of Rs.8,000/-.

The respondents 1 and 2 had not produced any document to either prove

the avocation or income of the deceased. However, P.W.1 had stated that

the deceased was working as a Coolie. Considering the avocation, age https://www.mhc.tn.gov.in/judis

CMA No.1334/2023

and year of the accident, this Court is of the view that it would be just and

reasonable to fix Rs.12,500/- as notional income of the deceased. Since

the deceased was aged 25 years at the time of the accident, the claimants

are entitled to 40% enhancement towards future prospects. Since the

deceased was a bachelor, half of his income has to be deducted towards

his personal expenses and the multiplier applicable is ‘18’. Thus, by

fixing Rs.12,500/- as notional income, granting 40% enhancement

towards future prospects, applying multiplier ‘18’ and deducting 50%

towards personal expenses, the loss of income is calculated as follows:

Rs.12,500/- + Rs.5,000/- (40% X Rs.12,500/-) X 12 X 18 X 50%

– Rs.18,90,000/-

14. The award under other heads is just and reasonable and hence,

the same is confirmed. Thus, the total compensation awarded by the

Tribunal is reduced from Rs.18,49,000/- to Rs.13,07,150/-. The break-

up is as follows:

                            Sl. Description           Amount         Amount           Award
                            No                       awarded by     awarded by     confirmed or
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                                                                                      CMA No.1334/2023


                                                       Tribunal        this Court    enhanced or
                                                         (Rs)             (Rs)         granted
                            1. Loss of                 17,28,000/-    18,90,000/-      Enhanced
                               Income
                            2. Funeral                  16,500/-        16,500/-       Confirmed
                               Expenses

                            3. Loss of Estate           16,500/-        16,500/-       Confirmed
                            4. Loss of Filial           88,000/-        88,000/-       Confirmed
                               Consortium
                                          Total        18,49,000/-    20,11,000/-
                                    Less                             Rs.7,03,850/-
                                    Contributory
                                    Negligence
                                    35%
                                    Net          Rs.18,49,000/ Rs.13,07,150/ Reduced by
                                    compensation       -             -       Rs.5,41,850/-
                                    amount
                                  15. In the result,

(i) C.M.A.No.1334 of 2023 is partly allowed reducing the

compensation from Rs.18,49,000/- to Rs.13,07,150/- together with

interest @ 7.5 % p.a. from the date of petition till the date of deposit.

(ii) Cross Objection No.51 of 2023 is partly allowed with respect to

enhancing the compensation from Rs.17,28,000/- to Rs.18,90,000/-

under the head Loss of Income.

(iii) The appellant/Insurance Company is directed to deposit their

share of the modified award amount now determined by this Court

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CMA No.1334/2023

i.e., Rs.13,07,150/- along with interest and cost, less the amount already

deposited if any.