Madras High Court
United India Insurance Company Limited vs Samy Duraichi on 5 January, 2024
C.M.A.(MD).No.887 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 13.12.2023
PRONOUNCED ON : 05.01.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.887 of 2012
and
M.P.(MD)No.2 of 2012
United India Insurance Company Limited,
Through its Branch Manager,
Mattappa Street, Tenkasi. ... Appellant
Vs.
1.Samy Duraichi
2.A.Raju
3.Royal Sundaram Alliance Insurance Company Ltd.,
46, Whites Road, Chennai – 14.
4.Mani
5.S.Sudalaimuthu ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to set aside the order and decree dated 12.04.2011
passed in M.A.C.O.P.No.142 of 2009 on the file of the Motor Accident
Claims Tribunal, Additional Sub Court, Tenkasi.
For Appellant : Mr.I.Suthakaran
For 3rd Respondent : Mr.S.Srinivasa Raghavan
1/8
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C.M.A.(MD).No.887 of 2012
For 1st Respondent : Mr.M.Saravanan
For 5th Respondent : Mr.Ananth C.Rajesh
For R2 : No Appearance
For R4 : Died
JUDGMENT
This Civil Miscellaneous Appeal is directed as against the
judgment and decree on certain counts passed by the Motor Accident
Claims Tribunal, Additional Sub Court, Tenkasi, in M.A.C.O.P.No.142 of
2009 dated 12.04.2011 by the appellant/5th respondent/insurance
company.
2.For the sake of convenience, the parties are addressed herein as
per the rank in M.A.C.O.P.No.142 of 2009.
3.The brief facts leading to the filing of the Civil Miscellaneous
Appeal is as follows:-
This is the fatal case. The petitioner is the legal heir of the
deceased Krishnammal. On 08.04.2009, at about 12.15 p.m, in Quilon to
Tirumangalam National Highways Road, in the western side of
Chockampatti O.P. Police Station which is 5 kms north east to
Kadayanallur Police Station, the deceased Krishnammal and her family
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went to Sastha Temple for the Panguni Uthira Festival in an auto bearing
registration No.TN-76-B-0046. While so a Maruti Omni car bearing
registration No.TN-76-Y-8143 travelling from opposite dashed directly
hit against the auto. The deceased Krishnammal sustained injuries and
died on the way to the hospital. Kadayanallur Police registered a casein
Crime No.113 of 2009 against the first respondent. Seeking
compensation of Rs.10,00,000/- for the death, the claim petition has been
filed by the petitioner.
4.The first respondent is the owner of the Maruti car, the second
respondent is the insurance company with which the said Maruti car was
insured and the third respondent is the driver of the auto and the fourth
respondent is the owner of the auto. The fifth respondent is the insurance
company with which the auto was insured. The fifth respondent had filed
a counter refuting each and every allegations in the claim petition and an
additional counter was also filed by the second respondent pleading that
the auto was overloaded at the time of accident. The total number of
eight persons travelled in the said auto. As the result of which, the driver
lost control and had caused the accident. Hence, it is not necessary for
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the insurance company to indemnify the insurer. The fifth respondent has
further pleaded that instead of four persons nine persons travelled in the
auto and thus resulted in the accident.
5.The learned Tribunal has framed three issues. Four witnesses
P.W.1 to P.W.4 were examined on the side of the petitioners and 23
documents Ex.P1 to Ex.P23 were marked. Four witnesses R.W.1 to R.W.
4 were examined on the side of the respondents and six documents Ex.R1
to Ex.R6 were marked. The respondents 1, 3 and 4 were called absent
and set exparte. On the basis of oral and documentary evidence and on
the basis of arguments submitted by respective parties, the learned
Tribunal proceeded to conclude that the accident had happened due to
rash and negligent driving of both the vehicles and the contributory
negligence is fixed on both the vehicles I.e. Auto and Maruti car. The
learned Tribunal directed the respondents 2 and 5 to pay the
compensation equally on 50%-50% basis. The deceased was earning Rs.
6,000/- per month. The learned Tribunal has fixed notional income of Rs.
3,000/- per month and the age of the deceased was taken as 55 years as
per Ex.P5 post morterm report and the relevant factor '11' was adopted.
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The loss of dependency was calculated as Rs.3,96,000/- (Rs.
3,000x12x11). Further the Tribunal had passed the award under
following heads:-
Head Compensation awarded
(I)Loss of Dependency: Rs.3,96,000/-
(ii)Loss of Love and affection Rs.10,000/-
for the petitioner :
(iii)Funeral Expenses: Rs.10,000/-
Total compensation awarded: Rs.4,16,000/- with interest @
7.5 % from the date of the claim
until the realization and costs.
6.Challenging the same, the appellant/fifth respondent/insurance
company has been filed this Civil Miscellaneous Appeal.
7.A critical perusal of materials available on record would prove
that the learned Tribunal had gone well into the fact and passed the award
by fixing the contributory negligence on both the drivers and directed the
respondents 2 and 5 to pay the compensation amount equally 50% - 50%
basis to the petitioners.
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8.However, at the time of arguments, the learned counsel for the
seventh respondent submitted that already the entire 50% of
compensation amount was deposited before the learned Tribunal.
9.In view of the same, this Court is not inclined to interfere in the
award passed by the learned Tribunal. Accordingly, the Civil
Miscellaneous Appeal stands dismissed. There shall be no order as to
costs. Consequently, connected miscellaneous petition is closed.
05.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
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To
1.The Motor Accident Claims Tribunal, Additional Sub Judge,
Tenkasi.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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L.VICTORIA GOWRI, J.
Mrn
05.01.2024
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