Madras High Court
The Branch Manager vs Petchiammal on 8 November, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
C.M.A(MD)Nos.209 of 2018 and 186 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 18.07.2024
Pronounced on : 08.11.2024
CORAM
JUSTICE N.SESHASAYEE
AND
JUSTICE P.VADAMALAI
C.M.A(MD)Nos.209 of 2018 and 186 of 2022
and
C.M.P(MD)No.3292 of 2018
C.M.A(MD)No.209 of 2018
The Branch Manager,
M/s.United India Insurance Co.Ltd.,
70, NSC Bose Road 3rd Floor,
Sowcarpet,
Chennai – 600 079. ... Appellant/2nd Respondent
Vs.
1.Petchiammal
2.Minor Jesibala ... Respondents 1 & 2/Claimants
(2nd respondent is represented by his mother
and guardian 1st Respondent herein)
3.M/s.Sical Logistics Ltd.,
Through its President,
88, Mount Road,
Guindy, Chennai – 600 032.
4.Jeyaraj ... 3rd & 4th Respondents/
1st & 3rd respondents
Page 1 of 19
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the fair and decreetal order, dated 23.05.2016
made in M.C.O.P.No.852 of 2013 on the file of the Motor Accident Claims
Tribunal/2nd Additional District Court (PCR), Tirunelveli.
For Appellant : Mr.B.Rajesh Saravanan
For R1 & R2 : Mr.T.Selvakumaran
For R3 : Given up
For R4 : Mr.V.Sasikumar
C.M.A(MD)No.186 of 2022
1.Petchiammal
2.Minor Josibala ... Appellants/Petitioners
(Minor 2nd appellant through her mother
and next friend Petchiammal)
Vs.
1.M/s.Sical Logistics Ltd.,
Chennai,
Through its President,
Having Office at No.88, Mount Road,
Guindy, Chennai – 600 032.
2.The Branch Manager,
United India Insurance Company Ltd.,
No.70, NSC Bose Road,
Third Floor, Sowcarpet,
Chennai – 600 079.
3.Jeyaraj ...Respondents/Respondents
Page 2 of 19
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree made in M.C.O.P.No.
852 of 2013 on the file of the Motor Accident Claims Tribunal/II Additional
District Court (PCR), Tirunelveli, dated 23.05.2016.
For Appellants : Mr.T.Selvakumaran
For R1 : Dispensed with
For R2 : Mr.B.Rajesh Saravanan
For R3 : Mr.V.Sasikumar
COMMON JUDGMENT
(Judgment of the Court was delivered by P.VADAMALAI, J.)
These Civil Miscellaneous Appeals are preferred challenging the
Award, dated 23.05.2016 passed in M.C.O.P.No.852 of 2013 by the Motor
Accident Claims Tribunal/II Additional District Court, Tirunelveli.
2. The 2nd respondent/United India Insurance Company Ltd., in
M.C.O.P.No.852 of 2013 has preferred the appeal in C.M.A(MD)No.209 of
2018 to set aside the award.
3. The petitioners/claimants in M.C.O.P.No.852 of 2013 have
preferred the appeal in C.M.A(MD)No.186 of 2022 seeking for
enhancement of compensation.
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
4. For the sake of convenience, the parties as arrayed in M.C.O.P.No.
852 of 2013 are adopted hereunder.
5. The brief facts of the case:
On 15.05.2013 at about 7.00 p.m., the deceased Balasuresh was riding
two wheeler bearing registration number TN 69 AE 5361 from the Thermal
Sea Shore to Muthiapuram along the harbour road at a moderate speed and
while reaching Sical Company, the two wheeler banged on the rear portion
of the 1st respondent’s lorry bearing registration number TN 09 AR 4617
was negligently parked on the middle of the road without any park lamps
switched on. Due to impact, the deceased Balasuresh sustained multiple
injuries and he succumbed to injuries. F.I.R. under Section 279, 337 and
304A of IPC., in Crime No.157 of 2013 was registered by the
Muthiahpuram police station against the 1st respondent’s driver. The
deceased Balasuresh was aged 25 years and working as a carpenter in
abroad i.e., in Gulf Spic Gen Trad., & Cont. Co., W.L.L. Kuwait and was
getting salary of Rs.50,000/- p.m. The 1st petitioner, who is the wife of the
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
deceased Balasuresh, carrying 2nd petitioner in her womb at the time of
accident, are depending on the income of the deceased. The 1st respondent’s
vehicle was insured with the 2nd respondent at the time of accident. Hence,
the petitioners filed the claim petition seeking compensation of
Rs.50,00,000/-.
6. The 1st respondent remained ex-parte before the Tribunal.
7. The 2nd respondent/Insurance Company objected the claim
petition by contending that the accident was not taken place due to
the 1st respondent’s lorry. As per the contents of F.I.R., four persons
including the deceased were travelling in the two wheeler TN 69 AE 5361
at the time of the accident, which is violation of Section 128 of the Motor
Vehicles Act. The deceased, who had ridden the two wheeler carrying three
others as pillion riders and who took larger responsibility, dashed into the
rear part of the parked lorry. The deceased contributed negligence on his
part for the accident. Since the policy condition is violated, the
2nd respondent is not liable to pay any compensation to the petitioners. So,
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
the petitioners are not entitled to claim from the 2nd respondent/Insurance
Company.
8. During the pendency of the claim petition, the father of the
deceased was impleaded as 3rd respondent, who filed a counter stating that
his wife, i.e., the mother of the deceased died and hence, he being the father
of the deceased is entitled to compensation.
9. The Tribunal has tried the claim petition. Both sides adduced
oral and documentary evidence. On the petitioners' side, P.W.1 and P.W.2
were examined and Ex.P.1 to Ex.P.4 were marked. On the respondents' side,
R.W.1 was examined and Ex.R.1 to Ex.R.4 were marked.
10. After hearing both sides and after considering the evidences,
the Tribunal passed the impugned order that the 1st respondent’s driver was
responsible for the accident and fixed the monthly income at Rs.20,000/-
p.m. and also took 50% future prospects and arrived at Rs.42,13,000/-
towards compensation. The Tribunal further held 20% contributory
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
negligence on the part of the deceased and awarded total compensation of
Rs.33,70,400/-.
11. Aggrieved by the said award, the 2nd respondent/Insurance
Company and the petitioners/claimants have preferred these respective Civil
Miscellaneous Appeals.
12. Heard both sides and perused the records in these Civil
Miscellaneous Appeals.
13. The learned counsel for the 2nd respondent/Insurance
Company (appellant in C.M.A(MD)No.209 of 2018) has submitted that the
deceased was riding the two wheeler, carrying three other persons as pillion
riders and hit behind the 1st respondent’s lorry and this fact was also
disclosed from the contents of F.I.R., but the claimants have not produced
that F.I.R. The Tribunal has erred in fixing contributory negligence 20% on
the deceased, it would have fixed 50%.
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
14. The learned counsel for the petitioners/claimants has
submitted that the offending vehicle was parked in the middle of the road
and there are no parked lamps switched on. The Tribunal has fixed 80% on
the driver of the offending vehicle and 20% on the deceased, which is not
correct and the contributory negligence on the part of the deceased has to be
set aside.
15. On perusal of records, it is clear that the deceased with three
persons were travelling in a motorcycle, which was ridden by the deceased.
It is the case of the petitioners/claimants that the 1st respondent’s lorry was
parked at the middle of the road without any parking lamps and since a
vehicle with head lights coming from the opposite direction, the deceased
experienced light glittering and dashed behind the parked lorry and the
accident was taken place and going by the case of the Insurance Company,
the deceased with three others lost balance and dashed behind the offending
lorry which was parked at the time of accident. Even if this version of the
accident wanted to be considered, then the issue is whether the parking
lamps were at least switched on and whether there is a person possessing
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
driving licence in the driver’s seat. At this juncture, it is appropriate to
mention here the provisions of Sections 122 and 126 of the Motor Vehicles
Act.
“122. Leaving vehicle in dangerous
position: No person in charge of a motor vehicle
shall cause or allow the vehicle or any trailer to
be abandoned or to remain at rest on any public
place in such a position or in such a condition or
in such circumstances as to cause or likely to
cause danger, obstruction or undue inconvenience
to other users of the public place or to the
passengers.
126 Stationary vehicles. No person
driving or in charge of a motor vehicle shall cause
or allow the vehicle to remain stationary in any
public place, unless there is in the drivers seat a
person duly licensed to drive the vehicle or unless
the mechanisam has been stopped and a brake or
brakes applied or such other measures taken as to
ensure that the vehicle cannot accidentally be put
in motion in the absence of the driver.”
So, under Section 122 of the Motor Vehicles Act, parking a motor vehicle in
a public road, no matter which part of the day, is considered as an
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obstruction as would cause inconvenience to the other road users and
prohibits it and Section 126 of the Act prohibits parking a motor vehicle
unless a licensed driver is there in the seat. In this case, the 1st respondent’s
lorry was parked at the middle of the road at the time of accident which took
place at about 7.00 p.m. There is no material placed by the Insurance
Company that the parking lamps were switched on. On perusal of the
records, the 1st respondent/driver of the offending lorry remained ex-parte
and the 2nd respondent/Insurance Company has not taken effective steps to
examine the driver of the offending lorry to prove the contra. Admittedly,
the driver of the lorry/1st respondent was not examined and there is no
material placed by the 2nd respondent/Insurance Company to show that there
were parking lamps switched on and there was a person duly licensed to
drive the vehicle was in the driver seat or offending lorry was stopped due
to mechanically fault. Therefore, the negligence on the part of the driver of
the offending lorry is evident and proved by the petitioners/claimants.
At the same time, it is also to be taken into account that the deceased had
ridden the two wheeler with three others as pillion riders, if so he could not
be able to balance while riding and also it would lose control while
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applying brakes in the event any urgent. In this case, the deceased dashed
behind the parked lorry and the Insurance Company filed the copy of F.I.R.
in the typed set. From the contents of F.I.R., it is also disclosed that the
deceased with three others were travelling in a motorcycle. The Tribunal
has fixed 20% contributory negligence on the part of the deceased.
However, considering the facts and circumstances, this Court is inclined to
fix 25% contributory negligence on the part of the deceased modifying the
20% fixed by the Tribunal.
16. Next, the petitioners/claimants (appellants in C.M.A(MD)No.
186 of 2022) contended that the deceased was working as a carpenter in
abroad and was earning Rs.50,000/- p.m. Even a carpenter in Tamil Nadu
is earning Rs.800/- per day, so the Tribunal ought to have fixed Rs.30,000/-
p.m. as income of the deceased. The learned counsel for the
2nd respondent/Insurance Company submitted that there is no income proof
adduced by the petitioners/claimants.
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
17. On perusal of records, there is no material produced by the
petitioners/claimants to show the income of the deceased, who was
admittedly working in a private company in Kuwait. The accident was
taken place on 15.05.2013. In the absence of any income proof, the
Tribunal fixed the monthly income as Rs.20,000/- which is on the higher
side. As per the decision of the Sarla Verma case and subsequent cost of
inflation index and also Ex.R.2 - Bank Passbook of the deceased, this Court
fixes the income of the deceased as Rs.15,000/- p.m, which meets the ends
of justice. The deceased was not a permanent employee. But, the Tribunal
added 50% as future prospectus, which is erroneous. The age of the
deceased was 29 years, which is not disputed. As per the settled proposition
of law in Pranay Sethi case reported in 2017 (2) TNMAC 609 (SC), 40%
has to be added towards future prospects in respect of nonpermanent
employees. Therefore, the Tribunal has not correctly added 50% future
prospectus. So, the future prospectus is to be added by 40%. By adding
40% the income of the deceased is fixed at Rs.21,000/-p.m. (Rs.15,000/- +
Rs.6,000/- (40% of Rs.15,000/-). Considering the age of the deceased as 29
years, the multiplier is '17' according to the settled principle in Sarla Verma
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Case. Hence, the Tribunal has correctly adopted the multiplier '17'. Thus,
the loss of income due to the death of the deceased Balasuresh would come
to Rs.21,000/- x 12 x 17 = Rs.42,84,000/-. The deceased was a family man,
who had a wife, child and father. So, as per the settled proposition 1/3 has
to be deducted towards his personal expenses. Therefore, deduction 1/3 of
Rs.42,84,000/-, the loss of income of the dependency arrived at
Rs.28,56,000/- (Rs.42,84,000/- less Rs.14,28,000/- (1/3 of Rs.42,84,000/-).
18. While considering the loss of consortium, the Tribunal has
only awarded Rs.50,000/- each to the petitioners and also Rs.20,000/-
towards loss of consortium to the 3rd respondent, father of the deceased. As
per dictum laid down by the Hon’ble Supreme Court in Pranay Sethi case
reported in (2017 (2) TNMAC 609 (SC), each dependents of the deceased
are entitled to Rs.40,000/- each towards spouse consortium, parental
consortium and filial consortium. It is not disputed by the learned counsel
for the respondents. Hence, the petitioners being the wife and child and 3rd
respondent being the father of the deceased are entitled Rs.40,000/- each
towards consortium.
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19. On perusal of the order of the Tribunal, it has awarded
Rs.5,000/- towards funeral expenses, Rs.5,000/-towards loss of estate and
Rs.3,000/- towards travel expenses. As settled in Pranay Sethi case,
Rs.15,000/- is to be awarded towards funeral expenses and loss of estate
and Rs.5,000/- towards transport. Therefore, this Court holds that the
Tribunal has not correctly awarded compensation under the heads of
consortium, funeral expenses, loss of estate and transport.
20. Thus, this Court holds that the total compensation payable to
the petitioners/claimants in M.C.O.P.No.852 of 2013 as follows:
Sl. Amount awarded
Description
No. by this Court
1. Loss of income Rs.21,000/- x 12 x 17 = Rs.28,56,000/-.
Rs.42,84,000/- Less 1/3rd Rs.14,28,000/-
towards personal expenses
2. Towards spousal consortium to the 1st Rs. 40,000/-
petitioner, being wife of the deceased.
3. Towards filial consortium for 2nd minor Rs. 40,000/-
petitioner, being child of the deceased)
4. Towards parental consortium for 3rd Rs. 40,000/-
respondent, being father of the deceased)
5. Towards funeral expenses Rs. 15,000/-
6. Towards loss of estate Rs. 15,000/-
7. Towards transport Rs. 5,000/-
Total Rs.30,11,000/-
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This Court has fixed 25% contributory negligence on the part of
the deceased for the accident. Hence, 25% has to be deducted from the
above total compensation and remaining 75%, the 2nd respondent/Insurance
Company is liable to pay. Therefore, the petitioners 1 & 2 and
3rd respondent/claimants in M.C.O.P.NO.852 of 2013 are entitled to
Rs.22,58,250/- (Rs.30,11,000/- minus Rs.7,52,750/- (25% of
Rs.30,11,000/-).
21. Therefore, to that extent, the compensation awarded by the
Tribunal is set aside and the same is modified as Rs.22,58,250/-. In respect
of apportionment, the 1st petitioner, being the wife of the deceased is
entitled to Rs.7,00,000/-, the 2nd minor petitioner being the child of the
deceased is entitled to Rs.12,00,000/- and the 3rd respondent being the father
of the deceased is entitled to Rs.3,58,250/-.
22. In view of the above discussions, the Civil Miscellaneous
Appeal in C.M.A(MD)No.209 of 2018 is to be allowed in part and
C.M.A(MD)No.186 of 2022 is to be dismissed.
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
23. In the result,
(i) The Civil Miscellaneous Appeal in C.M.A(MD)Nos.209 of
2018 is partly allowed and C.M.A(MD)No.186 of 2022 is dismissed.
No costs.
(ii) The quantum of compensation awarded by the Tribunal is
reduced from Rs.33,70,400/- (Rupees Thirty three lakhs seventy thousand
four hundred only) to Rs.22,58,250/- (Rupees Twenty two lakhs fifty eight
thousand two hundred and fifty only).
(iii) The first petitioner/wife of the deceased is entitled to receive
a sum of Rs.7,00,000/-, the 2nd minor petitioner/claimant/child of the
deceased is entitled to receive a sum of Rs.12,00,000/- and the
3rd respondent/ father of the deceased is entitled to receive a sum of
Rs.3,58,250/- with proportionate interests and costs.
(iv) The Insurance Company is directed to deposit the entire
compensation amount less, the sum already deposited, together with interest
at the rate of 7.5% per annum from the date of claim petition till the date of
deposit to the credit of M.C.O.P.No.852 of 2013 on the file of the Motor
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
Accident Claims Tribunal/II Additional District Court, Tirunelveli, within a
period of six weeks from the date of receipt of a copy of this order.
(v) On such deposit being made by the Insurance Company, the
1st petitioner/claimant and 3rd respondent in M.C.O.P.No.852 of 2013 are
permitted to withdraw their entire share amount as apportioned by this
Court with proportionate interest and cost by filing appropriate application
before the Tribunal, less the amount already withdrawn if any.
(vi) The apportioned amount with interest and cost of 2nd minor
petitioner/claimant in M.C.O.P.No.852 of 2013 shall be deposited in any
one of the Nationalized Bank till she attain majority and the first petitioner
is entitled to receive interest payable on the said deposit once in three
months. Consequently, connected Miscellaneous Petition is closed.
(N.S.S.,J.) (P.V.M.,J.)
08.11.2024
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
VSD
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
To
1.The Motor Accident Claims Tribunal/
II Additional District Court,
Tirunelveli.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)Nos.209 of 2018 and 186 of 2022
N.SESHASAYEE, J.
AND
P.VADAMALAI. J.
VSD
Pre-delivery Judgment made in
C.M.A(MD)Nos.209 of 2018 and 186 of 2022
and
08.11.2024
https://www.mhc.tn.gov.in/judis
