Madras High Court
National Insurance Company Limited vs Pushpamary on 5 June, 2024
CMA.(MD)No.1184 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 05/06/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
CMA(MD)No.1184 of 2021
and
CMP(MD)No.11392 of 2021
National Insurance Company Limited,
Represented by its Branch Manager,
No.11, Jerome Building,
1st Floor, Fort Station Road,
Trichy-2. : Appellant/2nd Respondent
Vs.
1.Pushpamary
2.A.U.Charista Judy
Respondents both are
represented by their
Power Agent M.Balthasar : Respondents 1 and 2/
Petitioners
3.C.Muthaiah : 3rd Respondent/1st Respondent
PRAYER:-Civil Miscellaneous Appeal is filed under
Section 173 of the Motor Vehicles Act, to set aside the
judgment and decree in MCOP No.1820 of 2021, dated
30/04/2021 on the file of the Motor Accident Claims
Tribunal, 1st Additional District and Sessions Court
(PCR), Tiruchirappalli.
For Appellant : Mr.J.S.Murali
For R1 and R2 : Mr.C.Vakeeswaran
For 3rd Respondent : No appearance
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CMA.(MD)No.1184 of 2021
J U D G M E N T
This Civil Miscellaneous Appeal is filed seeking an
order to set aside the the judgment and decree passed in
MCOP No.1820 of 2021, dated 30/04/2021 by the Motor
Accident Claims Tribunal/1st Additional District and
Sessions Court (PCR), Tiruchirappalli.
2.The facts in brief:-
On 25/01/2012 at about 09.00 am, the deceased
Arulandham was crossing the Trichy-Tanjore Highways Road
near Sakthinager Bus stand on the pedestrian way. At that
time, he was hit by a two wheeler bearing registration
No.TN-48-R-3058 driven by the first respondent driver in
a rash and negligent manner. He was taken to the
hospital, underwent surgery, but did not recover from the
accidental injuries. He died on 11/02/2012. At the time
of the occurrence, he was doing real estate business and
earning a sum of Rs.15,000/- per month. He was an ex-
employee of BHEL. The dependents claiming compensation of
Rs.10,00,000/- filed the claim petition.
3.That was resisted by the appellant by filing
counter stating that the deceased carelessly without
observing the traffic, suddenly crossed the road and
invited the accident.
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4.Before the Tribunal on the side of the claimants,
4 witnesses examined and 14 documents marked. On the side
of the Insurance Company, 2 witnesses examined and no
document marked. Apart from that, 6 documents marked
through the witnesses as Exs.X1 to X6.
5.At the conclusion of the trial process, regarding
the negligence, the Tribunal recorded a finding that it
occurred due to rash and negligent driving on the part of
the first respondent vehicle driver.
6.Regarding the compensation amount, considering the
age as well as the working capacity of the deceased, it
assessed the monthly income at Rs.9,000/-. By adopting
the multiplier 7, it arrived at the compensation under
the head of loss of income as Rs.5,04,000/-. To that,
conventional amounts were added and finally, it arrived
at Rs.9,43,000/- as per the tabulation given hereunder:-
Loss of Income Rs.5,04,000/-
Funeral expenses Rs. 15,000/-
Loss of consortium, Love and Rs. 40,000/-
affection for the 1st petitioner
Loss of love and affection for Rs. 40,000/-
the 2nd petitioner
Loss of estate Rs. 15,000/-
Medical bills (Ex.X3, X4) Rs.3,07,233/-
Attender expenses (17 days) Rs. 17,000/-
Transportation expenses Rs. 5,000/-
Total Rs.9,43,233/-
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7.Against which, this appeal is preferred.
8.Heard both sides.
9.Regarding the negligent aspect, it is submitted by
the appellant that when there was sudden crossing by the
deceased, naturally contributory negligence ought to have
been fixed. Having recorded a finding by the Tribunal
that the deceased was crossing the road, fixation of the
entire responsibility upon the first respondent vehicle
is not proper. It is in evidence to say that the deceased
was crossing the road, at that time, it appears that the
occurrence said to have been taken place.
10.The learned counsel appearing for the respondents
1 and 2 by relying upon the judgment of this court in
Pallavan Transport Corporation Ltd., rep. by Managing
Director, Pallavan Salai, Madras-600 002 Vs. Dhanalakshmi
and another [2004(2) TN MAC 99 (DB) would contend that
simply because the deceased was crossing the road, no
conclusion can be reached that he also contributed to
the occurrence.
11.The manner of the occurrence must be taken into
account while deciding the negligent aspect. Here the
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first respondent remained ex-parte. Only the rider of
the first respondent is competent to speak about whether
there was sudden crossing or not.
12.Reading of the FIR shows that the deceased was
crossing the road in pedestrian area. PW1 is stated to be
the eye witness. Against this oral evidence, as mentioned
above, the rider of the two wheeler was not examined on
the side of the appellant. In the absence of any such
evidence on the side of the appellant, no other witness
was examined.
13.The rough sketch drawn by the Investigating
Officer during the course of the investigation also
indicates that in the mud portion of the road the
occurrence said to have taken place. So, it is seen that
the deceased crossing the road in the pedestrian zebra
crossing. At that time, the first respondent vehicle
driver without notice the crossing, dashed against the
deceased. So the manner in which the occurrence took
place clearly indicates that the first respondent vehicle
was responsible for the occurrence. The first respondent
vehicle driver was acquitted in the criminal case. But no
documentary evidence is produced to show the same. Even
if it is so that he was acquitted it will not bind the
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Tribunal to arrive at the correct conclusion on the basis
of the evidence on record. So this ground is not
available to the appellant.
14.Regarding the assessment of monthly income, it is
submitted that the age of the deceased was about 65
years, multiplier adopted was 7. Regarding the income,
notional income was taken into account as Rs.9,000/-
considering the working capacity of the deceased. I find
absolutely no reason to interfere into that aspect. After
following the proper procedure, the total Loss of Income
was arrived at Rs.5,04,000/-. To that, loss of
consortium, being the wife, loss of love and affection
for the second petitioner was assessed at Rs.40,000/-
each. Actually, it should not termed as love and
affection and it should be termed as parental
consortium. I find that the amount also requires no
interference.
15.The further argument on the side of the appellant
is that the medical expenses were calculated without
proper proof. He would submit that only Xerox copies
have been produced and it bears no seal of the concerned
hospital.
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16.Per contra, the learned counsel appearing for the
respondents 1 and 2 would submit that to prove the
medical expenses, PW2 was examined. He has also verified
and confirmed the bills. So it is seen that the medical
expenses have also been properly proved by the claimants.
On that aspect also, it requires no interference.
17.The award amount has been fixed in a just and
reasonable manner, it requires no interference.
18.In the result, this Civil Miscellaneous Appeal is
dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
05/06/2024
Index:Yes/No
Internet:Yes/No
er
To,
1.The Motor Accident Claims Tribunal/
1st Additional District and Sessions Judge,
(PCR), Tiruchirappalli.
2.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
05/06/2024
https://www.mhc.tn.gov.in/judis
