Madras High Court
The United India Insurance Co. Ltd vs Kumar on 3 January, 2024
C.M.A.Nos.2287 & 2289 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
Civil Miscellaneous Appeal Nos.2287 & 2289 of 2021
C.M.A. No.2287 of 2021
The United India Insurance Co. Ltd.,
Motor Third Party Claims Hub,
No.134, Silingi Buildings,
4th floor, Greams Road, Chennai-6
... Appellant / 2nd respondent
Vs.
1. Kumar
2. Vasantha
3. Ammu
4. Jeya
5. Chitra
6. Powly ... Respondents / Petitioners
7. M/s.Veltech Multitech Dr.R.R.and
Dr.S.R.Engineering College,
No.42, Veltech Road,
Avadi Morai,
Thiruvallur District-600 071
... Respondent/Respondent
C.M.A. No.2289 of 2021
The United India Insurance Co. Ltd.,
Motor Third Party Claims Hub,
No.134, Silingi Buildings,
4th floor, Greams Road, Chennai-6 ... Appellant / 2nd respondent
1/15
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1. Murugan
2. Ambika ... Respondents 1 & 2/ petitioners1 &2
3. M/s.Veltech Multitech Dr.R.R.and
Dr.S.R.Engineering College,
No.42, Veltech Road,
Avadi Morai,
Thiruvallur District-600 071 ... 3rd Respondent / 3rd Respondent
Common Prayer Civil Miscellaneous Appeals filed under Section 173 of
Motor Vehicles Act, 1988 against the Common Award and Decree dated
07.07.2020 passed in M.C.O.P.Nos.3351 & 3353 of 2016 on the file of the
Motor Accident Claims Tribunal, II Judge, Small Causes Court, Chennai.
For Appellants in both CMAs : Mr.K.Varadha Kamaraj
For R1 to R6
in CMA.No.2287 of 2021 : M/s.S.Kiruthika
For R7
in CMA.No.2287 of 2021 : No Appearance
For R1 & R2
in CMA.No.2289 of 2021 : M/s.S.Kiruthika
For R3 in
CMA.No.2289 of 2021 : No appearance
COMMON JUDGMENT
The Insurance Company has filed these Civil Miscellaneous Appeals
challenging the liability as well as the quantum of compensation awarded in
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C.M.A.Nos.2287 & 2289 of 2021
M.C.O.P. Nos.3351 & 3353 of 2016, dated 07.07.2020, on the file of the
Motor Accident Claims Tribunal, II Judge,Small Causes Court, Chennai.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status and ranking before the
Tribunal.
3. Both the appeals arising out of Common Award relating to
one accident hence both appeals have taken up together for hearing. In the
meantime, the claimants have also filed separate Cross Objection for
enhancement of compensation.
4. On 09.04.2016 at about 5.30 a.m., the Deceased No.1,
Arunkumar was riding his two wheeler bearing Registration No.TN 10 AM
8671 along with pillionare namely Raja (Deceased No.2) on the Sardar Patel
Road at Kotturpuram and in the very same road, the first respondent’s bus
bearing Registration No.TN 12 C 6541 was parked in the dark area without
proper precautions or parking lights. Due to the darkness, the rider of the
two-wheeler hit on the rear side of the bus, which resulted in causing the
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C.M.A.Nos.2287 & 2289 of 2021
accident and the rider of the two-wheeler died on the spot and the pillion
rider died at the hospital during treatment.
5. Aggrieved over the loss of breadwinners of their family, the
claimants have filed respective claim petitions seeking compensation for a
sum of Rs.50,00,000/- and 80,00,000/- respectively by invoking under
Section 166 of the motor Vehicles Act.
6. The first respondent, who is the owner of the vehicle has not
contested the claim and the second respondent-Insurance Company has filed
their counter and contended that there is no negligence on the part of the
driver of the bus and that the bus was parked with due diligence with
parking lights/illuminating parking lights. Only due to the rash and negligent
driving of the rider of the two-wheeler, the accident had taken place and they
have also disputed the income, age, occupation of the deceased and
dependency of the claimants.
7. The Tribunal after considering the evidences placed on record
has held that the bus was parked negligently in the middle of the road which
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C.M.A.Nos.2287 & 2289 of 2021
resulted in the accident and in Point Nos.3 and 4 the Tribunal has quantified
the compensation and awarded a sum of Rs.18,65,000/- in M.C.O.P.
No.3553 of 2016 (For Deceased No.2) and a sum of Rs.27,60,000/- in
M.C.O.P. No.3357 of 2016 (For Deceased No.1).
8. Aggrieved over the negligence fixed on the part of the driver
of the bus and also challenging the quantum of compensation more
particularly, awarding consortium and love and affection, the Insurance
Company has filed this appeal.
9. The learned counsel for the Insurance Company has
submitted that on their side, they have examined the driver of the bus as a
witness and one another official who speak about the manner in which the
accident had taken place and this was not at all considered by the Tribunal.
The learned counsel further submitted that P.W.3 who was examined as
eyewitness by the claimants is also not an eyewitness and his evidence
contains various discrepancies more particularly, the place of accident. He
further submits that the rider of the two-wheeler travelled with a convoy of 8
other two-wheelers and since they have travelled in a convoy, they rode the
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C.M.A.Nos.2287 & 2289 of 2021
two-wheeler in high speed which resulted in accident. Hence, there was a
contributory negligence on the part of the rider as well as the pillion rider
hence prays to fix the contributory negligence on the deceased in this case.
10. The learned counsel for the claimants submitted that the
evidences placed on record to show that the bus was parked in darkness of
the road, which resulted in accident. The driver of the bus has rightly held as
a tortfeasor and there is no contributory negligence on the part of the
deceased herein hence prays to confirm the negligence fixed on the driver of
the bus. He further submitted that the compensation awarded to them more
particularly, the notional income fixed is also not in accordance with the
norms followed by this Court and even though there are evidences placed on
record to show the income and the same was not properly appreciated by the
Tribunal. Hence prays to enhance the compensation awarded.
11. I have considered the rival submissions made on both sides
and also perused the records.
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C.M.A.Nos.2287 & 2289 of 2021
12. As far as the negligence is concerned, the claimants have
examined P.W.3, who is a person, travelled in the road, had an occasion to
witness to the occurrence. He has stated that the bus was parked on the left-
hand side of the road and there was darkness. There was no parking lights
illuminating in the bus which resulted in the accident. In the cross
examination, he further elaborated that the bus was parked in the big road
200 feet width and he has also asserted that there was no lighting in that
area. The bus was parked just 60 feet opposite to the tea shop.
13. It is the evidence of R.W.1 that the driver of the bus has
parked the bus on the left-hand side of the road and thereafter he went for
drinking tea in the opposite tea shop. According to him, since the bus was a
new bus, he had switched on the indicator and also the parking lights. He
further stated that totally 9 bikes each carrying 2 persons was crossing the
road and one bike was hit on the Iron Barrycade used as speed breaker, and
another bike hit on the bus which resulted in accident.
14. This fact was stated for the first time before the Tribunal and
it is not the case of the respondents that the convey was crossing the bus in
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which, one vehicle hit on the bus. In the cross-examination R.W.3 has stated
that he had heard the fall of the bike and seen the second bike hitting on the
bus. According to him, he starts the bus at about 5.00 p.m., and thereafter,
stopped the bus at the tea shop for taking tea at that time.
15. The evidence of P.W.3 and reading of the First Information
Report shows that the accident had taken place in the early morning which
is between 5.00 to 5.30 hours. There is no clear evidence whether there was
sufficient light at the time of accident. It is also not clear whether the parking
indicator of the bus was switched on or not. Even though, R.W.1 states that
he switched on the parking lights whereas, the other witnesses claims that
there were no indicator lights switched on.
16. As far as the standard of proof requires for proving the
accident is concerned, the claimants have to prove their case on the standard
of the preponderance of probabilities as held by the Apex Court in Bimla
Devi and Others vs. Himachal Road Transport Corporation and Others
[2009 (13) SCC 530 : MANU/SC/0577/2009] and reiterating also various
subsequent Judgments. In this case, the evidence placed on record shows
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that the accident had taken place in the early morning. It was a parked
vehicle, in the road. It is not the case of the respondent that the bus was
parked in the safest place to avoid the accident. Admittedly, the bus was
parked in the road and according to the eyewitness that since the occurrence
had taken place in the road. Even it is accepted that the bus was parked after
switching of parking indicators, the evidence of Driver of bus shows that,
there was Iron Barrycade speed breaker and while negotiating the same, one
of the convoy of bikes hit o n the bus. This only probablise that, the place
where speed breaker has put up, the bus was parked and while negotiating
the speed breaker the accident had taken place. This Court is of the view
that the evidence placed on record on behalf of the claimants has to be
accepted since the same is more probable than the evidence of R.W.1.
Accordingly, this Court accepts the case of the claimants that the bus was
parked negligently in the road which resulted in accident.
17. As far as the quantum of compensation is concerned, the
Tribunal has accepted that the Deceased No.1 namely Arun kumar was
working as a cook as per his ID card-Ex.21. As far as the Deceased No.2
Raja is concerned Ex.P13-ID Card showing that he was working as a
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delivery boy. Both the ID card shows that they were working in a Private
Bakery. Based on the same, their notional income was fixed at Rs.15,000/-
for the deceased Arun Kumar and Rs.10,000/- for the deceased Raja.
However, there was no income proof or any other evidence produced to
show their avocation. Based on the nature of work carried on by them and
age, the Tribunal has fixed the notional income. This Court is of the view
that, notional income fixed by the Tribunal is proper and no need for
interference of this Court.
18. The Tribunal while fixing the future prospects fixed 50% of
the award which is not in accordance with the Apex Court Judgment in
National Insurance Co. Ltd., vs. Pranay Sethi and other reported in
[2017(2) TN MAC 609 (SC): 2017 (16) SCC 680] and eligible
compensation under the head future prospects is only 40%. Accordingly,
future prospects is modified. As per the Apex Court Judgment in Sarla
Verma and others Vs. Delhi Transport Corporation and others [2009
ACJ 1298 SC : 2009 (6) SCC 121], the multiplier is fixed as '18' by
considering the age of the deceased at the time of the accident. Since the
deceased is a bachelor 50% deducted towards his personal expenses.
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Accordingly, the following calculations have been made to calculate the loss
of income for the deceased Arun Kumar is concerned: [15,000 + 6000 (40%
of 15000) x 12 x 18 x 1/2 = Rs.22,68,000/-]. Accordingly, the following
calculations have been made to calculate the loss of income for the deceased
Raja: [10,000 + 4000 (40% of 10000) x 12 x 18 x 1/2 = Rs.15,12,000/-].
19. Similarly, while awarding compensation under the head loss
of love and affection and Filial Consortium is not in accordance with the
Judgment of the Apex Court in Magma General Insurance Co. Ltd., vs.
Nanu Ram and Others [2018 (18 SCC 130 : MANU/SC/1012/2018] and
United India Insurance Co., Limited vs. Satinder Kaur and Ors.
[MANU/SC/0500/2020 : (2021) 11 SCC 780]. Hence, the compensation
awarded under the head love and affection and Filial Consortium is modified
and each claimants are entitled for Rs.40,000/- under the head loss of
consortium. As far as the other conventional heads such as funeral and loss
of estate is concerned, the same are reasonable and the same are hereby
confirmed.
20. Accordingly, the Award passed by the Tribunal under various
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heads in C.M.A.No.2287 of 2021 are hereby modified as follows:
S. Description Amount Amount Award
No awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) reduced
1. Loss of dependency Rs.24,30,000/- Rs.22,68,000/- Reduced
2. Loss of love and Rs.1,00,000/- --- Modified
affection
3. Filial consortium/loss of Rs.2,00,000/- Rs.2,40,000/- Enhanced
consortium
4. Loss of estate Rs.15,000/- Rs.15,000/- Confirmed
5 Funeral Expenses Rs.15,000/- Rs.15,000/- Confirmed
Total Compensation Rs.27,60,000/- Rs.25,38,000/- Reduced by
Rs.2,22,000/-
21. Accordingly, the Award passed by the Tribunal under various
heads in C.M.A.No.2289 of 2021 are hereby modified as follows:
S. Description Amount Amount Award
No awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) reduced
1. Loss of dependency Rs.16,20,000/- Rs.15,12,000/- Reduced
2. Filial consortium/loss of Rs.2,00,000/- Rs.80,000/- Modified
consortium
3. Medical Expenses Rs.15,000/- Rs.15,000/- Confirmed
4. Loss of estate Rs.15,000/- Rs.15,000/- Confirmed
5 Funeral Expenses Rs.15,000/- Rs.15,000/- Confirmed
Total Compensation Rs.18,65,000/- Rs.16,37,000/- Reduced by
Rs.2,28,000/-
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22. In the result,
(i) C.M.A.No.2287 of 2021 is partly allowed and the
compensation awarded by the Tribunal at Rs.27,60,800/- is hereby reduced
to Rs.25,38,000/- [Rupees Twenty Five Lakhs and Thirty Eight Thousand
only] along with interest at the rate of 7.5% per annum from the date of
filing of Claim Petition till the date of deposit, excluding the default period,
if any.
(ii) C.M.A.No.2289 of 2021 is partly allowed and the
compensation awarded by the Tribunal at Rs.18,65,000/- is hereby reduced
to Rs.16,37,000/- [Rupees Sixteen Lakhs and Thirty Seven Thousand only]
along with interest at the rate of 7.5% per annum from the date of filing of
Claim Petition till the date of deposit, excluding the default period, if any.
(iii) The Appellant - Insurance Company is directed to deposit
the amount now awarded by this Court along with interest and costs, less
the amount already deposited, if any, within a period of six weeks from the
date of receipt of a copy of this judgment to the credit of respective
M.C.O.P.Nos.3351 & 3353 of 2016 on the file of the Motor Accidents
Claims Tribunal, II Judge, Small Causes Court, Chennai. On such deposit,
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C.M.A.Nos.2287 & 2289 of 2021
the appellants are permitted to withdraw the award amount now determined
by this Court along with interest and costs, less the amount if any, already
withdrawn, as per the apportionment fixed by the Tribunal. The Tribunal
shall disburse the amount now awarded by this Court by directly giving
credit to the Savings Bank Account of the claimant. The appellant-Insurance
Company is permitted to withdraw the amount if any lying in the credit of
respective M.C.O.P.Nos.3351 & 3353 of 2016 on the file of the Motor
Accidents Claims Tribunal, II Judge, Small Causes Court, Chennai. There
shall be no order as to costs in the present appeal.
03.01.2024
ssi
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
K. RAJASEKAR, J.
ssi
To:
1. The II Judge, Small Causes Court,
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C.M.A.Nos.2287 & 2289 of 2021
Motor Accident Claims Tribunal,
Chennai.
2. The Section Officer,
V.R.Section,
High Court,
Chennai.
C.M.A.Nos.2287 & 2289 of 2021
03.01.2024
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