Cholamandalam Ms General ... vs Sable Mamatha
2022 Latest Caselaw 5244 Tel

      THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                  M.A.C.M.A. No.761 of 2019

JUDGMENT:

Cholamandalam MS General Insurance Company

Limited-respondent No.3 before the Tribunal, preferred this

appeal challenging the order and decree, dated 30.11.2018,

passed in O.P. No. 515 of 2015 on the file of the Chairman,

Motor Accident Claims Tribunal-cum-Principal District and

Sessions Judge, Adilabad, on the ground that the compensation

awarded by the Tribunal is excessive and exorbitant.

2. For the sake convenience, the parties, hereinafter, will be

referred to as per their array before the Tribunal.

3. According to the pleadings in the O.P. filed by the

claimant, on 5.7.2015 the deceased Sable Kartar Singh along

with his cousin was proceeding to Gopalpet Tanda from Saingar

on his Hero splendor motorcycle and when they reached petrol

pump of Ankapur village state highway No.63 at about 3-00

p.m., one John Deere Tractor bearing No. TR.TS.01.CTR.2495

being driven by its driver came in rash and negligent manner

with high speed from opposite direction and dashed their

motorcycle, due to which both of them fell down and received

grievous injuries. Immediately after the accident, the deceased

Sable Kartar Singh was shifted to Government Hospital,

Nizamabad, but while undergoing treatment he succumbed to

the injuries. Thus, the petitioners are claiming compensation of

Rs.19,00,000/- under various heads.

4. Respondent Nos.1 and 2, who are driver and owner of the

offending tractor remained exparte; Respondent No.3 filed

counter denying the manner of accident, age, avocation and

income of the deceased.

5. On the above pleadings, the Tribunal framed the following

issues:

1. Whether the accident dated 05.07.2015 was due to the rash and negligent driving of Tractor bearing TR No.TS.01.CTR.2495 and the said accident resulted in the death of deceased Sable Kartar Singh or whether there was any contributory negligence on the part of the deceased?

2. Whether the petitioners are entitled for compensation, if so, to what amount and from whom?

3. To what relief?

6. In order to prove the issues, on behalf of the petitioners,

PWs.1 and 2 were examined and Exs.A1 to A8 got marked. On

behalf of respondents, none were examined and no document

marked.

7. On evaluation of the evidence, both oral and

documentary, the Tribunal allowed the O.P. in part and

awarded total compensation of Rs.9,23,500/- with 9% interest

per annum, holding the driver, owner and insurer of the

offending vehicle jointly and severally liable to pay the

compensation.

8. Heard both sides and perused the material available on

record.

9. The learned Counsel for the appellant-Insurance

Company contended that the Tribunal ought to have

appreciated that the alleged accident was occurred due to

negligent driving of the deceased. It is further contended that

the compensation awarded by the Tribunal including rate of

interest is excessive.

10. On the other hand, the learned counsel for the

respondent Nos.1 to 5/petitioners sought to sustain the

impugned award of the Tribunal contending that considering

the oral and documentary evidence available on record, the

learned Tribunal has awarded just and reasonable

compensation and the same needs no interference by this

Court.

11. With regard to the manner of accident, petitioner No.1

was examined as PW-1 and she reiterated the contents of the

petition. Further on behalf of the petitioners, PW-2 who was

also going along with the deceased on his motorcycle as pillion

rider was examined as eyewitness to the accident and he

categorically deposed that on 05.07.2015 while he along with

the deceased was going on the motorcycle at about 3-00 p.m.,

near petrol pump of Ankapur of Nizamabad district, a tractor

bearing No. TS.01.CTR.2495 being driven by its driver in rash

and negligent manner with high speed came in wrong side in

their opposite direction and dashed their motorcycle, due to

which both of them fell down, and the deceased died while

undergoing treatment. Therefore, considering the evidence of

PWs.1 and 2 coupled with the documentary evidence available

on record, the Tribunal rightly held that the accident occurred

due to the rash and negligent driving of the driver of Tractor.

Further there is no rebuttal evidence produced by the

respondents. Hence, there is no need to interfere with the

finding given by the Tribunal on this aspect.

12. Now coming to the quantum of compensation, according

to the evidence of PW-1, the deceased was earning Rs.10,000/-

per month through agriculture and he was also having

agricultural land of Ac.3-00 guntas in Sy.Nos.612/2 and 612/3

vide patta No.564 issued by Tahsildar of Sarangapur, but they

failed to adduce any evidence to prove the same. Hence the

Tribunal rightly taken the notional income of the deceased at

Rs.3,000/- per month under minimum wages act, and added

50% of his income towards future prospects, deducted 1/4th of

his income towards personal expenses and by applying

multiplier '17' awarded compensation of Rs.6,88,500/- towards

loss of dependency. Further the Tribunal also awarded

Rs.1,00,000/- to the petitioner No.1 towards consortium,

Rs.1,00,000/- towards loss of love and affection to petitioner

No.5, Rs.5,000/- towards transport charges, Rs.5,000/-

towards loss of estate and Rs.25,000/- towards funeral and

obsequies. Thus, in all the tribunal awarded Rs.9,23,500/-

under all counts, which is just and reasonable. Hence, there is

no need to interfere with the compensation awarded by the

tribunal.

13. Coming to the aspect of interest, considering the

prevailing rate of interest, the interest awarded by the Tribunal

is excessive. Therefore, the rate of interest is reduced from 9%

to 7.5% per annum.

14. With regard to the aspect of liability of payment of

compensation, as stated above, the alleged accident occurred

due to the rash and negligent driving of the driver of the Tractor.

Further the petitioners filed Ex.A6 copy of insurance policy,

which was in force as on the date of accident and the

respondent No.3-Insurance Company failed to produce any

rebuttal evidence to disprove the same. Considering the said

evidence, the tribunal rightly held that the respondent Nos.1 to

3 are jointly and severally liable to pay compensation awarded

to the petitioners.

15. In the result, the appeal is allowed in part to the extent of

modifying the rate of interest from 9% to 7.5% per annum. In

all other aspects, the order of the Tribunal stands confirmed.

There shall be no order as to costs.

As a sequel, the miscellaneous applications, if any

pending, shall stand closed.

_______________________________ JUSTICE M.G.PRIYADARSINI

21-10-2022 pgp