Madras High Court

Branch Manager vs Nathiya on 9 January, 2024

                                                                           CMA.No.3508 of 2021

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 09.01.2024

                              CORAM: THE HON'BLE MR.JUSTICE K.RAJASEKAR

                                             CMA.No.3508 of 2021
                                            & CMP.No.20313 of 2021

                     Branch Manager,
                     United India Insurance Company Ltd.,
                     No.123 A, No-2, Road,
                     Mayiladuthurai.                                           ... Appellant

                                                       -Vs-

                     1.Nathiya
                     2.Minor Naveen
                     3.Minor Mukesh
                     (minor claimants 2 & 3 are rep by their
                     mother and Guardian Nathiya)
                     4.Malathi
                     5.Balakrishnan                                          ...Respondents


                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, 1988, against the award and decree dated 8-4-2021 made
                     in M.C.O.P.No.181 of 2014 on the file of the Motor Accidents Claims
                     Tribunal (Principal Subordinate Judge), Mayiladuthurai.


                                  For Appellant       : Mr.D.Bhaskaran
                                  For RR1 to 3        : M/s.M.R.Franklin
                                  For R4              : Dispensed with



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                                                                                 CMA.No.3508 of 2021


                                                        JUDGMENT

The Appellant/insurance company has come forward this appeal

challenging the liability to pay compensation and the quantum of

compensation awarded in MCOP.No.181 of 2014 on the file of the Motor

Accident Claims Tribunal (Principal Subordinate Judge),

Mayiladuthurai.

2.The facts leading to the filing of this appeal is as follows; the

claimants are the dependents of the deceased namely Selvam. The third

respondent is the father of the deceased. On 17.08.2013, the deceased

Selvam was riding his two wheeler along with two pillion passengers on

the Sirgazhi-Tharagambadi main road, while they reached near

N.N.Chavadi, a TATA ACE Goods Vehicle bearing Regn.No.TN 51 B

8697 came in the opposite direction in a rash and negligent manner and

dashed against the two wheeler, which resulted in causing severe injuries

to the deceased. Subsequently, he succumbed to the injuries. The Police

have also registered criminal case in Crime No.241 of 2013 under

Section 279, 237, 304A on the file of Poraiyar Police Station.

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3.The first respondent is the owner of the goods vehicle and the

second respondent is the insurer of the goods vehicle. The first

respondent has not come forward to contest the claim petition. The

second respondent filed his counter and contented that the accident

occurred due to the negligent driving of the deceased and the accident

was head-on-collision. Since three persons were traveled in the vehicle, it

is a violation of the policy condition and also the deceased has lost the

control of the vehicle, which resulted in the accident. They have also

disputed the age, income, avocation of the victim of the accident and the

dependency of the third respondent. The third respondent, who is the

father of the deceased filed a counter stating that he is 60 years old and

that he was a dependent on the deceased Selvam.

4.The Tribunal based on the evidence placed on record has held

that the driver of the goods vehicle belongs to the first respondent, who

is the tortfeasor. It also quantified the compensation and awarded

Rs.21,96,000/- to be paid by the first and second respondents to the

claimants and respondent no.3. Aggrieved over the liability fixed on the

insurance company to pay the compensation and also challenging the

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quantum of compensation, this appeal has been filed.

5.The learned counsel for the insurance company submitted that it

is an admitted case of the complainant that three persons traveled in the

two wheeler driven by the deceased. Due to the impact, the deceased lost

control and hit on the goods vehicle in the middle of the road. He has

also stated that none of the persons were wearing headgear to protect

themselves. He would further submit that the Tribunal has not properly

appreciated the fact that the third respondent is not a dependent and the

compensation awarded under other heads is also on the higher side.

Hence, prays to set aside the above findings and modify the award.

6.Per contra, the learned counsel for the claimants submitted that it

is true that three persons traveled in the two wheeler but, the same should

not be a ground to hold that the deceased is a tortfeaser. There is no

evidence placed on record to show that due to the impact of three persons

traveled in the vehicle, the accident had taken place. He would further

submit that based on the evidence on record, the Tribunal had held that

the driver of the goods vehicle alone is responsible for the accident and

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the compensation awarded is also in accordance with the norms followed

and hence, prays to confirm the award.

7.This Court considered the submissions made by both sides and

perused the award of the Tribunal.

8.To prove the negligence on the part of the driver of the goods

vehicle, the claimants have examined, P.W.2, who is the pillion rider and

was traveling along with the deceased at the time of the accident. He has

stated that on 17.08.2018 at about 9.00 p.m. he along with one Kanagaraj

and the deceased Selvam traveled in the two wheeler from

Tharangambadi to Thalanjankadu. The deceased Selvam was riding the

two wheeler and others were traveling as the pillion riders, near

N.N.Chavadi opposite to the Ambedkar Nagar on the south to north

direction by observing due care and caution. At the time, TATA ASE

Goods vehicle came in the opposite direction in high speed and

negligently dashed on the two wheeler, which has resulted in the

accident.

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9.In the cross-examination of PW2, it reiterated that three persons

were traveling in the two wheeler and the two wheeler was coming from

south to north direction and the TATA ASE Goods Vehicle came from

north to south direction. He admits that the place where the accident took

place is heavy traffic zone and he denied that the deceased Selvam has

not ridden the vehicle with due care and caution, which resulted in the

accident.

10.The evidence of P.W.2 shows that he admits that three persons

traveled in the vehicle.

11.On the side of the respondents, no eyewitness was examined to

depose about the manner in which the accident had taken place. They

have examined the official of the insurance company as RW1. By relying

on the evidence recorded in the cross-examination of the official of the

insurance company, the learned counsel for the insurance company draws

the attention of this Court to impress upon the fact that the accident was

head-on-collision. Further, RW1 in his cross-examination has stated that

the road in which the accident has taken place was a straight road and

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that three persons traveled in the vehicle.

12.Except this evidence, there is no other evidence produced to

show that the accident was head on collision.

13.The Apex Court in Mohammed Siddique Vs. National

Insurance Company Ltd.[2020 (1) TNMAC 161 (SC)] has held that

three persons traveling in a two wheeler will only attract criminal offence

and the same alone is not sufficient to hold that the rider has acted

negligently and contributed to the accident. There must be some evidence

to show that, due to the impact of three persons traveled in the vehicle,

the accident had taken place. In this case, there is no evidence placed on

record to show that due to three persons traveled, the rider has lost the

balance and he was not in a position to ride the two wheeler efficiently in

order to avoid the accident.

14.While the evidence of PW2 is that the two wheeler was driven

with due care and caution on the left hand side of the road from south to

north direction, the goods vehicle came from the opposite direction and

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hit on the two wheeler. The standard of proof required in the case of this

nature is preponderance of probability. Evidence of P.W.2 has not been

dis-credited by any contra evidence by the respondent/insurance

company. The Tribunal has rightly held that the driver of the goods

vehicle alone is responsible for the accident since no contra evidence

placed on record. This Court confirms the above finding of the Tribunal

and no interference of this Court is warranted.

15.With regard to the quantum of compensation, even though the

claimants have claimed that the victim of the accident was a driver by

profession, no proof of income has been produced. The Tribunal has

fixed the monthly income of the victim of the accident notionally at

Rs.10,000/-. Considering the age of the deceased as 32 years and by

adding 40% as future prospects, the Tribunal has awarded the

compensation. The Tribunal had also deducted 1/4th of the income as the

personal expenditure of the victim, by adding the third respondent as one

of the dependents of the deceased.

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16.Admittedly, the third respondent herein has not adduced any

evidence to prove his dependency. The claimants have added him as one

of the respondents and they have also not pleaded that he is also a

dependent on the income of the deceased. Proceedings of the Tribunal

shows that after recording evidence, in the year 2018 the third

respondent, the father of the victim is impleaded as one of the

respondents. Since the third respondent has not adduced any evidence,

and there is no evidence on record to prove that he is one of the

dependents, awarding compensation to the third respondent is not

appropriate. Awarding compensation to the respondent no.3, without

proof of dependency is liable to be set aside.

17.It is also stated by the insurance company that the

compensation awarded under various heads is exorbitant, this Court is

unable to appreciate the same, since the notional income fixed by the

Tribunal is within the norms followed by this Court. Accordingly, the

notional income fixed by the Tribunal at Rs.10,000 per month is hereby

confirmed. After adding the future prospects and after deducting 1/3 rd,

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towards personal expenses of the deceased, the multiplicand and

compensation ordered towards loss of income is summed as follows;

The applicable multiplier for the deceased as per Sarala Varma

Vs. Delhi Transport Corporation & another [(2009) 6 SCC 121]

is 16.

[10,000+40% (10,000)] x 12 = 1,68,000 Deduction of 1/3 = 56,000/-

Multiplicand = 1,12,000

Multiplicand x 16 = 1,12,000 x 16 = 17,92,000/-

18.The Tribunal had separately awarded Rs.50,000/- under the

head of loss of love and affection to the first petitioner, Rs.30,000/- to

the second and third petitioners and the third respondent.

19.The Apex Court in United India Insurance Co. Limited V.

Satinder Kaur and Ors. [MANU/SC/0500/2020: (2021) 11 SCC 780]

and Sriram General Ins. Co. Ltd. Vs. Bhagat Singh Rawat and others

[2023 ACJ 2330] held that the consortium includes loss of love and

affection, care and companionship. In this case, as stated supra the third

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respondent has not been accepted as a dependent on the deceased.

Accordingly, he is not entitled for compensation under the head of loss

of consortium. However, the other claimants 1 to 3 are entitled for

consortium of Rs.40,000/- each, as per the Apex Court Judgment stated

supra. As far as other conventional heads are concerned, Rs.15,000/-

awarded each under the head of loss of estate and funeral expenses stand

confirmed. Accordingly, the compensation is quantified as below;

                            Sl. Description         Amount       Amount           Award
                            No                     awarded by    awarded       confirmed or
                                                    Tribunal      by this      enhanced or
                                                      (Rs)        Court          granted
                                                                   (Rs)
                            1. Loss of Income      20,16,000/-   17,92,000/      Reduced
                                                                     -
                            2. Loss of love and     50,000/-      40,000/-       Reduced
                               affection –
                               modified as Loss
                               of Consortium for
                               the 1st claimant
                            3. Loss of love and     60,000/-      80,000/-       Enhanced
                               affection –
                               modified as Loss
                               of Consortium to
                               the 2nd and 3rd
                               claimants




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                            4. Loss of love and        30,000/-       Nil          Canceled
                               affection to the
                               third respondent
                            5. Funeral expenses        15,000/-     15,000/-      Confirmed
                            6. Transport               10,000/-     10,000-       Confirmed
                               expenses
                            7. Loss of estate          15,000/-     15,000/-      Confirmed
                                                     21,96,000/-   19,52,000/     Reduced by
                                       Total
                                                                       -           244,000/-

20.The Tribunal has also adopted the principal of 'Pay and

Recover', since it was proved that the driver of the goods vehicle was not

having valid license at the time of the accident. Applying the principle of

pay and recover in terms of the Apex Court Judgment in National

Insurance Co.Ltd Vs. Swaran Singh & Ors.[2004(3) SCC 297], is

hereby confirmed.

21.To conclude, this appeal is partly allowed and the

compensation amount is decreased from Rs.21,96,000/- to Rs.19,52,000/,

together with interest at 7.5% per annum, from the date of petition till the

date of deposit excluding default period, if any. The appellant is now

required to deposit the entire compensation amount now determined by

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