Madras High Court
Royal Sundaram Alliance Insurance Co. ... vs Latha on 23 November, 2020
Author: V.Bharathidasan
Bench: V.Bharathidasan
C.M.A.No.3578 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2020
CORAM
THE HON'BLE MR.JUSTICE V.BHARATHIDASAN
C.M.A.No.3578 of 2019
and
CMP.No.20742 of 2019
Royal Sundaram Alliance Insurance Co. Ltd.,
4-A, 3rd floor, Thirumalai Towers,
423, Avanashi Road, Coimbatore ... Appellant
Vs.
1. Latha
2. S.Senthurpandi ... Respondents
PRAYER:- Civil Miscellaneous Appeal preferred under Section 173
of Motor Vehicles Act, 1988, against the judgment and decree made in
MCOP No.700 of 2014 on the file of the Motor Accidents Claims Tribunal,
II Additional District Court, Tirupur, dated 23.03.2018.
For Appellant : Mr. M. Krishnamoorthy
For Respondent : Mr. Mylsamy, for R1
R2- exparte
1/13
https://www.mhc.tn.gov.in/judis/
C.M.A.3578 of 2019
JUDGMENT
Feeling aggrieved with the award passed by the tribunal, the appellant/Insurance Company is before this Court with this appeal.
2. The case of the claimant in brief is as follows:-
The claimant is the mother of the deceased. According to her, on 09.03.2014 at about 9.30 a.m., while the deceased was riding a motorcycle from Mettupalayam to Ooty Main Road, a lorry owned by the first respondent, which was insured with the second respondent/Insurance Company, came from Ooty to Mettupalayam, came in a rash and negligent manner and dashed against the motorcycle, in which, the deceased sustained serious injuries and he was admitted in the Kuppusamy Naidu Hospital, Coimbatore and thereafter admitted in Coimbatore Medical College Hospital, however , he succumbed to injuries. At the time of accident, the deceased was 22 years old and doing a computer service business and earning a sum of Rs.10,000/- per month. The appellant, who is the sole legal representative, filed a claim petition seeking compensation of Rs.15 lakhs.
2/13
https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019
3. The first respondent, owner of the offending lorry, remained exparte. The second respondent/Insurance Company, contested the claim petition on the ground that the accident has taken place due to the rash and negligent act of the deceased and while the deceased was riding motorcycle from Mettupalayam to Ooty, where as, the lorry came in an opposite direction. The deceased while overtaking a bus, without noticing the on coming lorry, dashed against the lorry and sustained injuries. The lorry driver after noticing the motorcycle suddenly applied the brake and due to which, the lorry also turned to the left hand side, However, the ridder of the motorcycle, who came in aa high speed, could not control his vehicle and dashed against the lorry and hence, the entire negligence is on the part of the deceased. Hence, the respondents are not liable to pay the compensation. So far as the quantum of compensation is concerned, since there is no proof for the monthly income of the deceased, the compensation claimed by the claimant, being mother of the deceased is highly excessive.
3/13 https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019
4. In order to prove the case, before the Tribunal, the claimant examined herself as PW.1 and marked as many 6 documents. On the side of the respondents, the driver of the lorry was examined as RW.1. The official of the Insurance Company was examined as RW2 and marked as many as 5 documents.
5. The Tribunal after considering the materials available on record has held that there is contributory negligence on the part of the deceased and fixed the contributory negligence at 20% on the part of the deceased and 80% on the driver of the lorry. In respect of quantum of compensation, the tribunal fixed the monthly income at 9000/- and adding 50% towards future prospects and deducting 1/2 towards personal expenses, fixed the notional income of the deceased at Rs.6750/- and and applying multiplier of 18, arrived at a loss of dependency at Rs.14,58,000/-. In respect of other heads, the Tribunal has awarded a sum of Rs.40,000/- towards love and affection, a sum of Rs.25,000/- towards funeral expenses, a sum of Rs.15,000/- towards transportation expenses and Rs.1,06,250/- towards medical expenses and in total a sum of Rs.16,44,250/- was awarded by the 4/13 https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019 Tribunal towards compensation. Now, aggrieved over the same, the Insurance Company is before this Court with this appeal.
6. The learned counsel appearing for the appellant/Insurance Company submitted that it is clear that the accident has taken place due to the rash and negligent driving of the deceased and the Tribunal wrongly fixed the negligence at 20% only on the deceased. According to him, the driver of the lorry was examined as RW1 and only the driver of the lorry has lodged the first Information Report, which is marked as Ex.P1 and the Rough Sketch and the final Report filed by the police were also marked as Ex.R1 and Ex.R3. From the evidence of RW1 and the Rough Sketch Marked as Ex.R2, it is very clear that the accident has taken place only due to the negligent driving of the deceased. Even though the Tribunal has accepted the same, fixed the liability at 20% only on the deceased. According to the learned counsel, the tribunal fixed the monthly income at Rs.9000/- without any evidence whatsoever and added 50% towards his future prospects. As per the judgment of the Hon'ble Supreme Court reported in 2017(2) TNMAC 609 (SC) in the case of National Insurance 5/13 https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019 Company Limited/vs/ Pranay Sethi, 40% has to be added towards future prospects.
7. Per contra, the learned counsel for the first respondent/claimant would vehemently contend that RW1 driver of the lorry is the interested witness and his evidence cannot be taken into consideration. That apart as the deceased was seriously injured in the hospital and immediately taken to hospital and the claimant, mother was living at Ooty and hence, she is not in a position to file the complaint immediately. However, according to them, since the driver of the lorry filed the First Information Report against the deceased, the negligence cannot be fixed on the deceased. However, without considering the same, the Tribunal fixed 20% negligence on the deceased, which is also not correct. He would further contend that the deceased was young man, aged about 22 years and he was doing computer service and earning Rs.10000/- per month and the Tribunal arbitrarily fixed the monthly income at Rs.9000/- and added 50% towards future prospects and there is no error in it and the quantum awarded by the Tribunal is just and equitable.
6/13 https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019
8. I have considered the rival submissions and perused the materials available on records.
9. The primordial contention of the learned counsel for the appellant is that only due to the negligent driving of the deceased the accident has taken place and RW1 , who is the driver of the lorry was examined to prove the same. From the evidence of RW1, it could be seen that while the deceased was riding his motorcycle from Mettupalayam to Ooty in a ghat road, the offending lorry came in the opposite direction. According to RW1 when the deceased was overtaking a bus without noticing the on coming lorry, he suddenly applied the brake after seeing the motorcycle and he has also turned the lorry towards the extreme left to avoid the accident. Due to the same, the lorry tilted on the left hand side. The deceased could not controlled the bike and he dashed against the lorry and sustained serious injuries. Chief examination of the driver reads as follows :
** rk;gtj;jpd; nghJ ehd; TlY}hpypUe;J brd;idf;F FUkpsF nyhL Vw;wpf; bfhz;L yhhpapy; ngha;f bfhz;oUe;njd;/ fy;yhW mUnf te;J bfhz;oUe;jnghJ vjpnu muRg; ngUe;J te;jJ/ mg;nghJ ngUe;jpd; gpd;g[wk; te;j igf; ngUe;ij Xth;nlf; vLj;J te;jnghJ 7/13 https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019 ehd; nkhjhky; ,Uf;f ,lJ g[wkhf XJf;fpanghJ yhhp rhpe;Jtpl;lJ. vd; yhhpiag; ghh;j;J gae;J igf;fpd; gpnuf;if gpoj;jjhy; gpd;dhy; ,Ue;jth; bjwpj;J tpGe;J tpl;lhh;/ Xl;oath; nuhl;oy; tpGe;J tpl;lhh; vd;Wk; tpgj;jpw;F jhd; fhuzky;y vd;Wk; ;rhl;rpak; mspj;Js;shh;/ The said evidence was not rebutted in the cross examination. That apart, immediately after accident , the driver of the lorry also had given a First Information Report against the deceased. Thereafter, an investigation was conducted and final report has also been filed by the police against the deceased and closed the case as abated. The Rough Sketch filed by the police has been marked as Ex.R1. From the Rough sketch , it could be seen that the accident has taken place on the extreme right side of the ghat road. The tribunal also accepted the evidence of RW2 and held that the lorry being a heavy vehicle should be liable and fixed 80% negligence on the lorry. It is a serious contention of the appellant that in the absence of an evidence to show that the accident has taken place due to the negligence of the driver of the lorry, the Tribunal fixed 80% negligence on the lorry. However, considering the fact that the accident took place in the ghat road between Mettupalayam and OOty when the two wheeler, in which, the 8/13 https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019 deceased was travelling, without noticing the upcoming lorry, which was coming down from ooty. Hence, the driver of the lorry ought to have drive the lorry looking for the upcoming vehicle.
Considering the materials, as the accident took place during the extreme right of the dhat road, when the deceased overtaking the vehiclewithout looking into the ..down coming vehicle, he is also .. both of them are equally contributed to the accident. In this circumstances, this Court is of the view that the negligence to be fixed on the driver of the lorry as well as the deceased instead of the negligence at 80% fixed on the driver of the lorry and 20% on the deceased.
In respect of quantum of compensation, the Tribunal after considering the materials, fixed the monthly income of the deceased at Rs.9000/- . However, 50% of the salary has been added towards future prospects. As the deceased was a self employee, as per Salaravama 40% of the monthly income should be added towards future prospects. Hence, after adding 40%towards his personal expenses, it comes to 12600(9000+3600) and aftr deducting 50% towards future propspects, the notional monthly incomes 9/13 https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019 comes to Rs.6300/-, which is rounded upto Rs.6500. After applying the multiplier of 18, the loss of dependency comes to Rs.14,04,000 (6500 x 12 x 18). Towards loss of estate a sum of Rs.10,000/-, towards love and affection Rs.40,000/- , towards funeral expenses Rs.15,000/-, towards transportation expenses Rs.10,000/- and towards medical expenses Rs.10,06,250/- , in total a sum of Rs.15,85,250/- is awarded towards compensation. Since 50% liability is fixed on the deceased, a sum of Rs.7,92,625/-, rounded to Rs.8,00,000/- is granted towards compensation.
9. Considering all the above circumstances, the award passed by the Tribunal modified as follows:-
Sl. Headings Amount Amount Award
No. Awarded awarded confirmed
by the by this or
Tribunal Court enhanced
Rs.
1 Loss of dependency 14,58,000 14,04,000 reduced
2 Loss of estate 10,000
3 Love and affection 40,000 40,000 --
3 Funeral expenses 25,000 15,000 confirmed
4 Transportation 15,000 10,000 reduced
10/13
https://www.mhc.tn.gov.in/judis/
C.M.A.3578 of 2019
Sl. Headings Amount Amount Award
No. Awarded awarded confirmed
by the by this or
Tribunal Court enhanced
Rs.
expenses
5 Loss of love and 1,50,000 -
affection
6 Transportation 5,000 5,000 confirmed
expenses
Total 14,70,200 16,85,800 enhanced
10. In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.14,70,200/- is hereby enhanced to Rs.16,85,800/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The appellants are directed to pay necessary Court fee, if any, on the enhanced compensation.
The respondent/Transport Corporation is directed to deposit the enhanced award amount now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the appellants are permitted to withdraw the enhanced award amount along with 11/13 https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019 interest and costs as apportioned by the Tribunal. No costs.
23.11.2020 mrp To:
The Motor Accidents Claims Tribunal, IV Court of Small Causes Court, Chennai.
Index : yes /no Internet : yes/no Speaking order/ non speaking order 12/13 https://www.mhc.tn.gov.in/judis/ C.M.A.3578 of 2019 V. BHARATHIDASAN, J., mrp C.M.A.No.3578 of 2019 23.11.2020 13/13 https://www.mhc.tn.gov.in/judis/