Madras High Court
The Branch Manager vs Vinotha on 2 January, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
C.M.A.(MD)No.1067 of 2018
Cross Obj.(MD)No.3 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.01.2024
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
and
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.M.A.(MD)No.1067 of 2018
and
C.M.P.(MD)No.11058 of 2018
and
Cross Obj.(MD)No.3 of 2019
C.M.A.(MD)No.1067 of 2018:-
The Branch Manager,
Reliance General Insurance Co. Ltd.,
Plot No.HIG 55, I Floor, Meenakshi Plaza,
Anna Nagar 80 Feet Road,
Madurai. ... Appellant
vs.
1.Vinotha, W/o.Late.Chandran
2.Minor Sanjana, D/o.Late.Chandran
3.Ayyappan, S/o.Late.Palani
4.Lalitha, W/o.Ayyappan
1/13
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.1067 of 2018
Cross Obj.(MD)No.3 of 2019
5.The Proprietor,
Solaimalai Enterprise,
No.7, Mangayarkarasi College Road,
Vadipatti, Paravai, Madurai.
6.Sharfuddin
7.The Branch Manager,
The New India Assurance Co. Ltd.,
Kannara Street, Madappuram,
Tiruvarur. ... Respondents
Prayer :- Civil Miscellaneous Appeal filed under Section 173 of
the Motor Vehicles Act, 1988, against the fair and decreetal order dated
28.06.2017, made in M.C.O.P.No.188 of 2015, on the file of the Motor
Accident Claims Tribunal [Chief Judicial Magistrate], Thanjavur at
Kumbakonam.
For Appellant : Mr.S.Srinivasa Raghavan
For R1 to R4 : Mr.A.S.Mathialagan
For R5 and R6 : No Appearance
For R7 : Mr.J.S.Murali
Cross Obj.(MD)No.3 of 2019:-
1.Vinotha, W/o.Late.Chandran
2.Minor Sanjana, D/o.Late.Chandran
3.Ayyappan, S/o.Late.Palani
2/13
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.1067 of 2018
Cross Obj.(MD)No.3 of 2019
4.Lalitha, W/o.Ayyappan ... Cross Appellants
vs.
1.The Branch Manager,
Reliance General Insurance Co. Ltd.,
Plot No.HIG 55, I Floor, Meenakshi Plaza,
Anna Nagar 80 Feet Road,
Madurai.
2.The Proprietor,
Solaimalai Enterprise,
No.7, Mangayarkarasi College Road,
Vadipatti, Paravai, Madurai.
3.Sharfuddin
4.The Branch Manager,
The New India Assurance Co. Ltd.,
Kannara Street, Madappuram,
Tiruvarur. ... Respondents
Prayer :- Cross Objection filed under Order 41 Rule 22 of C.P.C.
read with Section 173 of the Motor Vehicles Act, 1988, against the
judgment and decree dated 28.06.2017, made in M.C.O.P.No.188 of
2015, on the file of the Motor Accident Claims Tribunal [Chief Judicial
Magistrate], Thanjavur at Kumbakonam.
3/13
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.1067 of 2018
Cross Obj.(MD)No.3 of 2019
For Appellants : Mr.A.S.Mathialagan
For R1 : Mr.S.Srinivasa Raghavan
For R2 and R3 : No Appearance
For R4 : Mr.J.S.Murali
COMMON JUDGMENT
DR.G.JAYACHANDRAN, J.
and
C.KUMARAPPAN, J.
The Civil Miscellaneous Appeal is preferred by the Insurance
Company aggrieved by the quantum of compensation awarded by the
Motor Accident Claims Tribunal on the claim petition filed by the
dependants of the deceased Chandran. While the Insurance Company has
preferred the above Appeal on the ground of contributory negligence and
excessive quantum, the claimants have preferred Cross Objection,
seeking enhancement of compensation on the ground that the Tribunal
has failed to take note of future prospects of the accident victim.
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2. The brief facts leading to the Civil Miscellaneous Appeal
and the Cross Objection are as below:-
On 12.04.2014 at about 01.00 p.m. on the Manancheri Main
Road, opposite to Lotus Pond, a Mahindra Van bearing Registration
No.TN-50-F-0813, owned by Royal Distributor, carrying groceries,
driven by the said Chandran, was hit by Eicher Lorry bearing
Registration No.TN-59-ASB-5106 driven by one Santhanam. According
to the F.I.R., the accident occurred while the deceased Chandran took his
right side to avoid hitting goats crossing the road. In the said accident,
Chandran sustained severe injuries and he was taken to the Kumbakonam
Government Hospital in an Ambulance. After first aid, he was shifted to
Meenakshi Mission Hospital, Thanjavur. After a couple of days,
Chandran succumbed to injuries. Claim Petition was filed by his wife,
minor daughter and parents against the insurers of both the vehicles and
the owner of the Eicher Lorry. Though the claimants have sought for
Rs.40,00,000/- with 12% interest as compensation, the Tribunal after
considering the evidence, has awarded a sum of Rs.25,46,797/- with
7.5% interest and also apportioned the award amount among the
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claimants as under:-
Rank before the Relationship with Amount
Tribunal the deceased
1st petitioner Wife Rs.9,96,797/- with 7.5% interest
2nd petitioner Minor daughter Rs.8,50,000/- with 7.5% interest
3rd and 4th Father and mother Rs.3,50,000/- each with 7.5%
petitioners interest
Total Rs.25,46,797/- with 7.5% interest
3. The Branch Manager of the Insurance Company, which has
insured the Eicher Lorry, has preferred C.M.A.(MD)No.1067 of 2018 on
the ground that the accident took place solely on account of the
negligence on the part of the deceased driver and admittedly, he had
turned to the right side without noticing the upcoming Eicher Lorry in
order to avoid hitting goats crossing the road. Therefore, when the
victim is the cause for the accident, the dependants of the victim are not
entitled for compensation. That apart, the monthly income of the
deceased has been fixed by the Tribunal as Rs.13,000/- without any proof
of income.
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4. Per contra, the Cross Objection has been filed by the
claimants stating that the Tribunal ought to have awarded 40% towards
future prospects and the compensation for the medical expenses has to be
enhanced.
5. The learned counsel for the appellant Insurance Company
submitted that the negligence on the part of the deceased is seen from the
F.I.R. [Ex.P.1] as well as the testimony of P.W.2 Muthukumar, who was
the co-occupant in the Mahindra Van driven by the deceased.
6. The learned counsel for the claimants in response to the
above submissions submitted that the Trial Court has considered this
point and has found that there is no evidence to show that the accident
occurred due to the negligence of the deceased and in the absence of
rough sketch, it cannot be presumed that due to rash and negligent
driving of the deceased, the accident occurred. That apart, P.W.2 witness
to the occurrence and co-occupant, has categorically deposed that the
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offending Eicher Lorry came rashly and negligently. Therefore,
negligence is not a fact for presumption. Relying upon the monthly
income of the deceased fixed at Rs.13,000/-, the learned counsel for the
claimants submitted that the deceased was 21 years old at the time of
accident and a qualified professional driver having a valid driving
licence [Ex.P.17] and had future prospects of earning more as a skilled
person.
7. Heard the learned counsels and perused the records.
8. There is no dispute about the accident and the avocation of
the deceased, since he sustained injuries while driving the vehicle and
died two days after the accident in the hospital. The vehicle driven by
the deceased as well as the offending vehicle were duly insured under the
respondents 2 and 4 in the claim petition, respectively. The claimants
being the wife, child and parents are dependants of the deceased and
there is no dispute about the relationship. Relying upon the testimony of
P.W.3 Mohamed Faizal and also the salary certificate, which is marked as
Ex.P.20, the Tribunal has fixed the monthly income of the deceased as
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Rs.13,000/-. The age of the deceased was 21 years and accordingly,
multiplier factor '18' applied and loss of income was fixed as
Rs.28,08,000/-. After deducting 1/4th for his personal expenses, the
Tribunal has awarded a sum of Rs.21,06,000/- for loss of income.
Further, the Tribunal has awarded a sum of Rs.25,000/- towards funeral
expenses; Rs.10,000/- towards loss of estate; Rs.1,00,000/- towards loss
of love and affection; Rs.1,00,000/- towards loss of consortium;
Rs.1,95,797/- towards medical expenses; and Rs.10,000/- towards
transport expenses and totally, a sum of Rs.25,46,797/- with 7.5%
interest from the date of claim petition till the date of realization was
awarded by the Tribunal as compensation.
9. The assessment of loss of compensation by and large is in
tune with the dictum laid down by the Hon'ble Supreme Court except
omission to award future prospects. As pointed out by the learned
counsel for the claimants, the Tribunal ought to have awarded 40%
towards future prospects. To that extent, the Cross Objection filed by the
claimants is allowed.
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10. Regarding the negligence, it is true that the Insurance
Company has not taken any steps to produce the rough sketch. However,
the testimony of P.W.2 read together with the F.I.R. [Ex.P.1], the report
regarding alteration of charges [Ex.P.18] and the final report [Ex.P.8]
indicates that the goods vehicle driven by the deceased, had turned to the
right side of the road to avoid hitting goats crossing the road. Therefore,
it is not sole negligence of the driver of the offending vehicle, namely,
Eicher Lorry. The elements of negligence and rashness on the part of the
deceased is spoken implicitly by P.W.2, eyewitness to the occurrence.
For the said rash and negligent driving, the deceased has to be held
responsible and this Court holds that for the contributory negligence,
10% of the award to be reduced. Accordingly, the compensation awarded
by the Tribunal is modified as follows:-
Sl. Head Amount
No.
1. Loss of income [Rs.13,000 + Rs.5,200 Rs.29,48,400/-
(40% future prospects) x 12 x 18
(multiplier) – ¼ (personal expenses,
Rs.9,82,800/-)]
2. Funeral expenses Rs. 25,000/-
3. Loss of estate Rs. 10,000/-
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4. Loss of love and affection Rs. 1,00,000/-
5. Loss of consortium Rs. 1,00,000/-
6. Medical expenses Rs. 1,95,797/-
7. Transport expenses Rs. 10,000/-
Grand Total Rs.33,89,197/-
Less:- 10% towards contributory Rs. 3,38,920/-
negligence of the deceased
Total Rs.30,50,277/-
The above award amount is to be paid with interest at 7.5% p.a. from the
date of filing the claim petition till the date of realization. The learned
counsel for the appellant Insurance Company submitted that the Tribunal
award amount has already been deposited and the balance amount as
enhanced by this Court along with 7.5% interest will be deposited within
a period of four weeks.
11. In view of the above, the appellant / Reliance General
Insurance Company Limited is hereby directed to deposit the entire
balance award amount with interest within a period of four weeks from
the date of receipt of a copy of this judgment. From the award amount,
the father and mother of the deceased are entitled to Rs.4,00,000/- each
with accrued interest and the balance award amount with accrued interest
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shall be equally apportioned between the wife and the minor daughter of
the deceased. The Tribunal is directed to deposit the share of the minor
daughter in a Fixed Deposit in any one of the Nationalized Banks,
renewable periodically until she attains majority. The mother of the
minor/wife of the deceased is permitted to withdraw the interest amount
once in six months, till the minor attains the majority.
12. In the result, the Civil Miscellaneous Appeal is disposed of
and the Cross Objection is partly allowed. No costs. Consequently,
connected Miscellaneous Petition is closed.
NCC : Yes / No [G.J., J.] [C.K., J.]
Index : Yes / No 02.01.2024
Internet : Yes / No
SMN2
To
1.The Motor Accident Claims Tribunal [Chief Judicial Magistrate],
Thanjavur at Kumbakonam.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
DR.G.JAYACHANDRAN, J.
and
C.KUMARAPPAN, J.
SMN2
PRE-DELIVERY COMMON JUDGMENT MADE IN
C.M.A.(MD)No.1067 of 2018 and Cross Obj.(MD)No.3 of 2019
02.01.2024
https://www.mhc.tn.gov.in/judis
