Madras High Court
The Branch Manager vs Veerachinnan on 10 September, 2024
C.M.A.(MD) Nos.1029 & 1030 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.09.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) Nos.1029 & 1030 of 2011
and
M.P.Nos.1 & 1 of 2011
In C.M.A.(MD)No.1029 of 2011
The Branch Manager,
United India Insurance Company Ltd.,
S.N.Complex, Near Telephone Exchange,
L.P.Road, Adyar,
Chennai – 600 020. ... Appellant
Vs.
1.Veerachinnan,
2.Valliammal,
3.S.Sakthivel. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the common fair and executable order dated
29.07.2008 passed in M.A.C.O.P.No.166 of 2007 on the file of the
Additional District and Sessions cum Fast Track Court of Dindigul.
For Appellant : Mr.N.Dilip Kumar
For Respondents : No appearance
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C.M.A.(MD) Nos.1029 & 1030 of 2011
In C.M.A.(MD)No.1030 of 2011
The Branch Manager,
United India Insurance Company Ltd.,
S.N.Complex, Near Telephone Exchange,
L.P.Road, Adyar,
Chennai – 600 020. ... Appellant
Vs.
1.Jothi,
2.Minor. Mahalakshmi,
3.Minor.Magudeeswaran,
4.Minor Krishnan @ Krishnakumar,
5.Palanichamy,
6.Muniammal,
7.S.Sakthivel.
(Respondents 2, 3 & 4 represented through their
mother and natural guardian/1st respondent) ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the common fair and executable order dated
29.07.2008 passed in M.A.C.O.P.No.154 of 2007 on the file of the
Additional District and Sessions cum Fast Track Court of Dindigul.
For Appellant : Mr.N.Dilip Kumar
For Respondents: No appearance
*****
COMMON JUDGMENT
These appeals have been filed challenging the finding on
negligence and the quantum of compensation awarded to the respondents
in two different claim petitions filed by the legal representatives of the
deceased, who died in the same accident.
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C.M.A.(MD) Nos.1029 & 1030 of 2011
2. Since these appeals arise out of the a common award in the claim
petitions filed by the claimants, these appeals are taken up together.
3. The claimants in both the appeals filed two separate claim
petitions stating that while the deceased were riding their TVS 50, a
tempo van insured with the appellant came in a rash and negligent manner
and dashed against the two wheeler, as a result of which both persons
sustained fatal injuries.
4. The owner of the vehicle remained ex parte before the Tribunal.
5. The appellant filed a counter stating that the accident took place
only due to the negligence of the rider of the two wheeler, since three
persons travelled in the two wheeler and a minor was riding the said two
wheeler.
6. Before the Tribunal, the claimants examined four witnesses as
P.W.1 to P.W.4 and marked Exs.P1 to P12. The appellant examined two
witnesses as R.W.1 and R.W.2 and marked Exs.R1 to R5.
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C.M.A.(MD) Nos.1029 & 1030 of 2011
7. The Tribunal, after taking into consideration the oral and
documentary evidence, awarded the compensation of Rs.2,81,750/-, after
deducting 30% towards contributory negligence on the rider, to the
claimants in M.C.O.P.No.154 of 2007 (C.M.A.(MD)No.1030 of 2011)
and Rs.1,12,000/-, after deducting 30% towards contributory negligence
on the rider, to the claimants in M.C.O.P.No.166 of 2007 (C.M.A.
(MD)No.1029 of 2011).
8. The learned counsel for the appellant/Insurance Company
submitted that the vehicle was ridden by a minor; that since three persons
travelled in the two wheeler, the contributory negligence fixed on the rider
of the two wheeler has to be enhanced and the compensation awarded by
the Tribunal is excessive.
9. Notice to the respondents in both appeals is not necessary in view
of the orders this Court proposes to pass.
10. The points for consideration in the instant appeal are as follows:
‘a. Whether the finding on negligence is justified?
b. Whether the quantum of compensation of the Tribunal is just and
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C.M.A.(MD) Nos.1029 & 1030 of 2011
reasonable?’
11. As regards the first question, it is seen that the claimants
examined P.W.3 and P.W.4/the eyewitnesses to the occurrence besides
marking Ex.P1-FIR to corroborate the version of the eyewitnesses
regarding the accident. The appellant had not examined the driver of the
insured vehicle. In the absence of any evidence contrary to the evidence
produced on the side of the claimants, this Court is of the view that the
finding of the Tribunal that the accident predominantly took place due to
the rash and negligent driving of the insured vehicle cannot be faulted.
However, it is seen that admittedly, the three persons were riding in the
two wheeler, in which, the deceased travelled and the two wheeler was
ridden by a minor. In such circumstances, the contributory negligence
fixed on the two wheeler riders cannot be faulted. Therefore, the finding
of the Tribunal is just and reasonable. The point No.1 is answered
accordingly.
12. As regards the quantum of compensation, the learned counsel
for the appellant is unable to point out any infirmity in the award of the
compensation except for stating that it is excessive. Since there is no
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C.M.A.(MD) Nos.1029 & 1030 of 2011
infirmity in the quantum of compensation, this Court is of the view that
the same has to be confirmed. Hence, these appeals are liable to be
dismissed.
13. The appellant/Insurance Company shall deposit the
compensation amount of Rs.2,81,750/- for the claimants in C.M.A.
(MD)No.1030 of 2011 (M.C.O.P.No.154 of 2007) and Rs.1,12,000/- for
the claimant in C.M.A.(MD)No.1029 of 2011 (M.C.O.P.No.166 of 2007)
with accrued interest at 7.5% p.a., from the date of the claim petition till
the date of realization (excluding the period of dismissal for default if
any) and costs, less the amount already deposited, if any, within a period
of four (4) weeks from the date of receipt of a copy of this order.
14. On such deposit, the claimants in both appeals are entitled to
withdraw their respective shares, as per the apportionment fixed by the
Tribunal, together with proportionate interest and costs, less the amount
already withdrawn, if any, by filing appropriate application before the
Tribunal.
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C.M.A.(MD) Nos.1029 & 1030 of 2011
15. The respondents 2 to 4 in C.M.A.(MD)No.1030 of
2011/claimants were minors when the claim petition was filed in the year
2007. They would have attained majority now. Hence, they are permitted
to file appropriate application for recording their majority and to withdraw
their share.
16. In the result, both these Civil Miscellaneous Appeals are
dismissed. No costs. Consequently, connected miscellaneous petitions are
closed.
Index: Yes/ No 10.09.2024
NCC: Yes / No (2/2)
Speaking Order / Non-Speaking Order
apd
To:
1.The Additional District and Sessions Judge,
Fast Track Court, Dindigul.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.1029 & 1030 of 2011
SUNDER MOHAN, J.
apd
C.M.A.(MD) Nos.1029 & 1030 of 2011
10.09.2024
(2/2)
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