Madras High Court
The Oriental Insurance Company Ltd vs T.R.Subramani (Died) on 6 November, 2012
Author: P.Devadass
Bench: K.N.Basha, P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/11/2012 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE P.DEVADASS C.M.A. (MD) No.1329 of 2012 and M.P.(MD) No.1 of 2012 The Oriental Insurance Company Ltd., P.L.A. Building, 1st Floor, No.12-A, Covai Road, Karur - 2. ... Appellant/2nd Respondent vs T.R.Subramani (Died) Chinnapillai @ Chinnammal (Died) 1.Rajeswari 2.R.Meenakshi Ammal 3.Ramasamy ... Respondents 1 to 3/Petitioners 1 to 3 4.S.Sakthivel ... 4th Respondent/1st Respondent 5.S.Vevekanandan ... 5th Respondent/3rd Respondent 6.United India Insurance Co. Ltd., P.L.A. Building, 12-A, Covai Raod, Karur. ... 6th Respondent/4th Respondent PRAYER Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, praying to set aside the Award passed in M.C.O.P.No.274 of 2009, on 19.03.2012, by the Motor Accidents Claims Tribunal (District Judge), Karur. !For Appellant ... Mr.K.Bhaskaran ^For respondents 1, 2 and 5... Mr.K.Balasubramani :JUDGMENT
P.DEVADASS, J.
1. The appellant, the insurer of 4th respondent's vehicle challenges quantum of compensation awarded to the dependants of deceased T.R.Subramani.
2. On 19.02.2009, T.R.Subramani, came riding his two-wheeler, on the Thalavapalayam - Moorthipalayam branch Road, from South. At that time, the 4th respondent came driven his Car from west. The car dashed against the bike. Accident took place. In this, Subramani sustained multiple grievous injuries. Subsequently, on 30.11.2009, he died.
3. Originally, while alive, Subramani claimed compensation in M.C.O.P.No.274 of 2009. On his death, by way of amendment, his dependants/ respondents 1 to 3 were brought on record. The Tribunal concluded that Subramani died due to the injuries sustained by him in the road accident. The deceased was 60 years old. In assessing the compensation, the Tribunal took the multiplier '7', took his income at Rs.4,000/- per month, deducted Rs.1,500/- from it towards his personal expenses and took the balance Rs.3,000/- as his contribution to his family and calculated the loss of dependency accordingly. Besides that it had also allowed the entire medical expenses and thus totally awarded them Rs.14,23,000/-.
4. As the issue involved is very narrow, we have decided to dispose of the appeal itself today and the learned counsel for the appellant also readily argued the matter.
5. The learned counsel for the appellant contended that at the time of accident the deceased was not holding a driving licence, thus, he has also contributed to the accident. However, the Tribunal did not consider this aspect. The learned counsel also contended that the deceased did not die due to the injuries sustained by him in the road accident. Personal action dies with the person. However, the insurance company is ready to reimburse the entire medical expenses incurred in connection with his treatment.
6. We have carefully considered the submissions of the learned counsel for the appellant, perused the materials on record and also went through the impugned award of the Tribunal.
7. 'Contributory negligence' implies contribution of a material act - a reckless act - which is also responsible for the road accident. Contributory negligence cannot be assumed or presumed. It must be proved like any other fact. It must be established by relevant evidence. There must be positive evidence to show that the accident had occurred also due to the reckless act of late Subramani.
8. Earlier, the view of the Courts is that by the mere fact of the victim not possessing the driving licence while driving the vehicle, it was construed as an act of negligence. Now, the present position is that merely on account of the victim of road accident not possessing the driving licence, the Court cannot come to the conclusion that he also contributed to the accident, since contributory negligence must be established by positive evidence.
9. In this case, there is no evidence to show that at the time of accident T.M.Subramani drove the bike in a rash and negligent manner. In the circumstances, the arguments as to contributory negligence cannot be sustained. The Tribunal has rightly held that the accident was due to the rash and negligent driving of the Car by the 4th respondent.
10. On 19.02.2009, T.R.Subramani sustained multiple injuries. There were injuries on his left femur and right clavicle region. He had head injuries also. He died on 30.11.2009. The claimants must establish that he died due to the injuries sustained by him in the road accident.
11. Till his death, Subramani underwent continuous treatment in more than one hospital. He underwent treatment in Amaravathi Hospital, Karur. Then in K.G.Hospital, Coimbatore and in Ganga Hospital, Coimbatore. He took treatment for the multiple grievous injuries sustained by him in the road accident. More than eleven lakh has been spent towards medical expenses. It is also an indication of the nature and extent of the injuries sustained by him. Ofcourse, there is a passing remark by the Tribunal that he also underwent treatment for jaundice. But that is not the main cause for his death. Cause of his injuries is the road accident, it is due to the negligent driving of the 4th respondent. Effect of the injuries is his death, ofcourse deferred death.
12. He suffered death after 9 months of accident, but during the 9 months he battled for his life due to the injuries sustained by him in the road accident. In such circumstances, the maxim 'actio personalis moritur cum persona' (personal action dies with the death of Subramani) will not apply to this fatal accident case.
13. In view of the above, we concur with the view of the Tribunal that death of Subramani was due to the fatal injuries sustained by him in the road accident.
14. As regards quantum, the Tribunal had taken into account a bare minimum income, applied the correct multiplier and calculated the compensation amount accordingly. It is neither less nor more but reasonable.
15. In the result, this Civil Miscellaneous Appeal is dismissed. The award of the Tribunal is confirmed. The appellant shall deposit the entire compensation amount within eight weeks from the date of receipt of a copy of this judgment, less amount, if any already deposited. On deposit, the claimants shall be permitted to withdraw their respective share of compensation amount, less amount, if any already withdrawn. No costs. Consequently, connected M.P.(MD) No.1 of 2012 is dismissed.
To (1) The Motor Accident Claims Tribunal, (The District Judge), Karur.