Madras High Court

M.Malathi vs S.Dan Deva Kumar (Deceased) on 1 March, 2024

Author: P.Velmurugan

Bench: P.Velmurugan

                                                                           C.M.A.No.804 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                     RESERVED ON              :     21.07.2023
                                     PRONOUNCED ON            :     01.03.2024

                                                     CORAM:

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                               C.M.A.No.804 of 2018

                        1. M.Malathi
                        2. M.Saravanan (Minor)
                        3. M.Nandhini (Minor)
                     (Minors 2 & 3 are represented by their mother and
                     next friend the first petitioner herein)

                          4. Jothi Ammal                                          ...Appellants
                                                        Vs.

                     S.Dan Deva Kumar (deceased)

                          1. The New India Assurance Co.Ltd.,
                             No.45, 2nd Line Beach Moore Street,
                             Chennai – 600 001.
                             Now at : Door No.232 NSC Bose Road,
                             Bombay Mutual Building, Chennai – 1.

                          2. Amaly Swanzy Marry                                  ...Respondents


                     Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
                     Vehicles Act, 1988, challenging the fair and decreetal order dated
                     14.12.2017 in M.C.O.P.No.902 of 2011 by the learned Motor Accidents
                     Claims Tribunal, II Judge, Small Causes Court, Chennai.

                     1/13


https://www.mhc.tn.gov.in/judis
                                                                                  C.M.A.No.804 of 2018


                                            For Appellant      : Mrs.Ramya Rao

                                            For Respondents : Mrs.A.Salomi for R1
                                                          *****


                                                        JUDGMENT

The claimants have filed the appeal against the dismissal of the

claim petition filed by them before the Tribunal.

2 The appellants are claimants, who filed the claim petition

claiming compensation of Rs.35,00,000/- for the death of one Amalraj @

Mahendran caused in the accident that occurred on 16.05.2010. According

to the appellants/claimants on 16.05.2010, when the deceased was riding as

pillion rider in the vehicle bearing Reg.No.TN 22 AD 0622 from south to

east in GST Road, the rider of the vehicle suddenly turned right side without

indication in a rash and negligent manner and endangering public safety and

dashed against the Car bearing Reg.No.TN 07 L 3144. In the said accident,

the deceased sustained fatal injuries and the said accident has occurred only

due to rash and negligence of the rider of the two wheel in which the

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deceased travelled as a pillion rider. Hence the appellants filed claim

petition.

3 The claim petition was contested by the second

respondent/Insurance company and they filed detailed counter denying all

the allegations apart from disputing the liability.

4 Before the claims Tribunal, On the side of the claimant P.Ws.1

and 2 were examined and Exs.P1 to P10 were marked. On the side of the

respondents, no oral or documentary evidence was let in.

5 The Tribunal, on an assessment of the entire evidence on

record, mad a finding that the claimants failed to prove the negligence on

the part of the rider of the two wheeler in which the deceased was travelling

as a pillion rider and there is no evidence on record to support the claim of

the claimants and dismissed the claim petition. Aggrieved against the

dismissal, the claimants are before this Court.

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6 Learned counsel appearing for the appellants/claimants would

submit that the claimants are the legal heirs of the deceased. In this case eye

witness to the accident was examined as P.W.2, who has clearly stated the

manner in which the accident took place. Even though in the FIR it is stated

that the due to rash and negligence of the driver of the Car the accident had

occurred, the Tribunal has failed to consider the fact that the deceased was a

pillion rider in the two wheeler and since there is involvement of two

vehicles, the claimants can proceed either of the vehicle and further in this

case due to involvement of two vehicles, theory of composite negligence

would arise.

6.1 FIR is only a document which shows the factum of accident

and the Tribunal relying on the only document i.e. FIR, dismissed the claim

petition, without even looking into the other aspects, which is against the

law. The Tribunal failed to note that this Court and the Hon'ble Supreme

Court time and again held that FIR is not a gospel. The Tribunal ought to

have atleast taken contributory negligence as there was involvement of two

vehicles and the Tribunal also failed to observe the ratio laid down by the

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Hon'ble Supreme Court and dismissed the entire claim of the appellants on

the ground that the claimants are not proved negligence on the part of the

rider of the two wheeler.

6.2 Further the Tribunal erred in observing that the deceased

himself was driving the vehicle, but, in the document i.e. FIR, which was

relied on by the Tribunal, itself it is stated that the deceased was travelling

as pillion rider. Therefore the finding of the Tribunal is not sustainable.

Further P.W.2, who is the eye witness has clearly stated that the accident

had occurred only due to the rash and negligence of the driver of the Car. To

support his contentions, the learned counsel appearing for the appellants

relied on the decisions of the Hon'ble Supreme Court reported in 2015 (1)

TN MAC 801 (SC), 2021 (2) tn mac 449 (SC). Therefore the claimants,

who are the dependents of the deceased are entitled for just and reasonable

compensation and the first respondent is liable to pay the compensation.

7 Learned counsel appearing for the first respondent/Insurance

Company would submit that the entire accident had occurred only due to the

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negligence of the driver of the Car bearing Reg.No.TN 07 L 3144, which

dashed against the two wheeler and caused the fatal injuries both to the rider

and the pillion rider of the vehicle. FIR was registered against the driver of

the Car and charge sheet was also laid against him only. From the FIR it is

clear that the rider of the two wheeler rode the vehicle slowly and carefully,

crossed the GST Road at the place provided for it, proceeded three fourth of

the road and when he had gone to eastern end of the road, the Airport

prepaid Taxi came with reckless speed and dashed against the two wheeler,

which caused the fatal injuries to both rider and pillion rider of the two

wheeler.

7.1 The learned counsel would further submit that the evidence of

alleged eye witness P.W.2 could not be acceptable, since he neither lodged

the complaint nor taken the deceased to the hospital. Therefore the Tribunal

rightly held that since the the accident had occurred due to the rash and

negligent driving of the Taxi, which was not validly insured, the claimants

had filed the claim petition against the owner and insurer of the two

wheeler, which was insured with the first respondent. The Tribunal has

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rightly appreciated all the material evidence and dismissed the claim

petition. Therefore there is no merit in the appeal and the same is liable to

be dismissed.

8 Heard the learned counsel appearing for the

appellants/claimants and the learned counsel appearing for the first

respondent/Insurance Company and perused the materials available on

record.

9 According to the appellants/claimants the accident had

occurred due to rash and negligent driving of the driver of the two wheeler,

in which the husband of the first appellant was riding as pillion rider, in

which he sustained grievous injuries and succumbed to the injuries. The

deceased at the time of accident, was 38 years and was working as Load

Man and he also possessed valid Driving License and was earning

Rs.8000/- p.m.

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10 The first appellant is wife, 2nd and 3rd appellants are minor

children and 4th appellant is mother of the deceased. The accident and the

fact that the appellants are the legal heirs of the deceased are not in dispute.

Even though in the FIR it is stated that the accident had occurred only due

to the negligence of the Driver of the Car and the Tribunal also based on the

same made a finding that there is no negligence on the part of the rider of

the two wheeler, but it is settled proposition of law that FIR is not an

encyclopedia. The Tribunal ought to have assessed the entire materials

independently with the available records and the Tribunal cannot decide the

matter solely based on the materials collected in the criminal case during

investigation.

11 Admittedly two vehicles were involved in the accident. P.W.1

during the cross examination has stated that her husband was driving the

two wheeler, but, in the FIR no where it is stated that the deceased was

riding the vehicle. Even though it is contended by the learned counsel for

the first respondent/Insurance Company that P.W.2 neither had given the

complaint nor taken the deceased to the Hospital, but, however, the

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evidence of P.W.2 shows that he was working and residing in that area and

the deceased and he are known to each other. At the time of accident, he

was in the Tea shop and saw the accident and he further stated that the

deceased was traveling as pillion rider and the accident had occurred only

due to the rash and negligence of the rider of the two wheeler.

12 Even otherwise, there is no concrete proof to show that at the

time of accident, the deceased was only riding the vehicle, except the one

word mentioned by P.W.1 during the cross examination that her husband

was driving the vehicle, but she is not an eye witness. The first

respondent/Insurance Company did not examine any witness or the Driver

of the Car to prove the contents of the FIR.

13 Therefore it is clear that the deceased at the time of accident

was traveling in the two wheeler as pillion rider. In the instant case, two

vehicles were involved in the accident and as contended by the learned

counsel for the appellant that both the rider of the two wheeler and the

Driver of the Car contributed their negligence. Even though the Taxi was

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not insured with any Insurance Company, however, the two wheeler was

insured with the firs respondent/Insurance Company.

14 This Court as an appellate Court, while re-appreciating the

evidence on record comes to the conclusion that the claimants are entitled to

the compensation and the second respondent/Insurance Company is liable to

pay the 50% of the amount.

15 Even though the claimants have stated that the deceased at the

time of accident was earning Rs.8,000/- p.m., as Loadman, but, there is no

valid proof for the same and hence this Court fix notional income at

Rs.5000/-. It is claimed that the deceased at the time of accident was aged

about 38 years. Since there is no contra evidence to disprove the same, the

age of the deceased is 38 years and the multiplier is 15. Thus Loss of

dependency is calculated as follows:

                                  Notional income                            =     Rs.5,000/-

                                  30% addition towards future prospects      = (+)Rs.1,500/-
                                                                             =     Rs.6,500/-





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                                  After deduction of 1/3 towards personal
                                                                 expenses          = (-) Rs.4,333/-
                                  Loss of dependency = 4333 x 12 x 18              =     Rs.7,79,940/-

                       Sl.                        Name of the Head                     Award Amount
                       No.                                                                  Rs.
                         1        Loss of dependency                                              779940.00
                         2        Love and Affection for appellants 2 to 4 (each                  150000.00
                                  Rs.50,000/-)
                         3        Loss of consortium to fist appellant                             40000.00
                         4        Funeral expenses                                                 15000.00
                                  Total                                                           984940.00



                                  16      The first respondent/Insurance Company is directed to deposit

the 50% award amount i.e. Rs.4,92,470/- along with interest @ 7.5@ p.a

from the date of claim petition till the date of realisation, within a period of

three months from the date of receipt of a copy of this order before the

Tribunal. The first appellant/wife is entitled to Rs.1,92,470/- and the

appellants 2 to 4 are entitled to Rs.1.00 each, if the fourth appellant is not

alive, her share shall be paid to the first appellant/wife. On such deposit

being made the Tribunal is directed to pay the same directly to the account

of the first and fourth appellants/claimants as per the decision of the

Division Bench of this Court reported in 2016 (2) LW 561 (The Divisional

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Manager, The Oriental Insurance Company Limited, Kannur, Vs. Rajesh

and Others). The shares of the Minor claimants shall be deposited in any