Madras High Court
Royal Sundaram Alliance Insurance Co. ... vs Suthanthira on 1 July, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.392 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.07.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.392 of 2020
and
C.M.P.No.2437 2020
Royal Sundaram Alliance Insurance Co. Ltd.,
Sundaram Towers, 45 & 46, Whites Road,
Royapettah, Chennai 600 014 ... Appellant
Vs.
1. Suthanthira
2. Minor Purushothaman
3. Minor Vetri
4. Venkatammal
5. S.N.Taj ... Respondents
(R5 remained exparte/ before the Tribunal,
hence, notice to R5 has been dispensed with)
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https://www.mhc.tn.gov.in/judis
C.M.A.No.392 of 2020
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, to set aside the judgment and decree in M.C.O.P.No.409 of
2013 dated 09.03.2018 on the file of Motor Accident Claims Tribunal,
Special District Court, Krishnagiri.
For Appellant : Mr. M. Krishnamoorthy
For R1 to R4 : Mr.M.Selvam
For R5 : Exparte
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI,J.) This Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company against the judgment and decree dated 09.03.2018 made in M.C.O.P.No.409 of 2013 on the file of Motor Accident Claims Tribunal, Special District Court, Krishnagiri.
2. The appellant/Insurance Company is the 2nd respondent in M.C.O.P.No.409 of 2013 on the file of Motor Accident Claims Tribunal, Special District Court, Krishnagiri. The respondents 1 to 4 have filed the said 2/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 claim petition claiming a sum of Rs.20,00,000/- as compensation for the death of one Perumal, who died in the accident that took place on 17.05.2012.
3.According to the respondents 1 to 4, on the date of accident i.e., on 17.05.2012, at about 20.15 hours, while the deceased Perumal was riding his TVS 50 bearing Registration No.TN 29 R 1316 along with his 2 minor sons, near the Government girls Hostel at Rajaveedhi in Krishnagiri Town, the driver of the lorry, belonging to the 5th respondent bearing Registration No. KA 01 AB 9695, who was coming in the opposite direction, drove the same in a rash and negligent manner and dashed against the motorcycle. In the accident, the said Perumal died on the spot. Therefore, the respondents 1 to 4 filed the above claim petition claiming compensation for the death of said Perumal against the 5th respondent, owner of the lorry and appellant/Insurance Company, insurer of the said lorry.
4.The 5th respondent, owner of the lorry remained exparte before the Tribunal.
5. The appellant/Insurance Company filed counter statement and denied the averments made in the claim petition and stated that driver of the lorry belonging to the 5th respondent drove the same with due care and 3/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 caution. The deceased Perumal alone rode the motorcycle without observing the rules, who while nearing the curves lost his control, hit the right side rear wheel and invited the accident. The deceased Perumal did not possess valid driving license, which is in violation of policy condition and he was not wearing the helmet at the time of accident. The appellant/Insurance Company has also denied the age, avocation and income of the deceased. In any event, the compensation claimed by the respondents 1 to 4 is excessive and prayed for dismissal of the claim petition.
6. Before the Tribunal, the 1st respondent, wife of the deceased, examined herself as P.W.1, one Kumar, eye-witness to the accident was examined as P.W.2 and 16 documents were marked as Exs.P1 to P16. On the side of the appellant/Insurance Company, one Abbas, driver of the lorry was examined as R.W.1 and one Sivaguru, employee of the Krishnagiri RTO was examined as RW2 and 2 documents were marked as Ex.R.1 & Ex.R2.
7. The Tribunal, considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the lorry belonging to the 5th respondent and directed the 2nd respondent/Insurance Company being insurer of the said lorry to pay a 4/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 sum of Rs.43,94,860/- as compensation to the respondents 1 to 4.
8. Against the said award dated 09.03.2018 made in M.C.O.P.No.409 of 2013, the appellant/Insurance Company has come out with the present appeal.
9. The learned counsel appearing for the appellant/Insurance Company contended that the deceased alone was responsible for the accident and the Tribunal ought to have fixed entire negligence on the deceased. The Tribunal, failed to appreciate that the deceased did not possess valid driving license at the time of accident. The deceased was riding the TVS 50 with two persons as pillion riders, lost his control and dashed on the right side rear wheel mudguard and fell down, sustained injuries and died. The Tribunal erred in rejecting the evidence of RW1, driver of the lorry. The learned counsel further contended that the Tribunal failed to appreciate the fact that the damages to the lorry is on the right side mudguard which clearly shows that the accident occurred only due to the negligence of the rider of the TVS 50/deceased.
10. The learned counsel further contended that even though as per Ex.P.5., Last drawn salary of the deceased, he was getting only a sum of Rs.21,367/-, the respondents 1 to 4 did not file income tax return. In the 5/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 absence of any valid documents, the monthly income of Rs.21,367/- fixed by the Tribunal is excessive. At the time of accident, the deceased did not wear helmet and only due to the head injury, he died. The Tribunal ought to have fixed contributory negligence on the part of the deceased. The amounts awarded by the Tribunal under different heads are excessive and prayed for setting aside the award of the Tribunal.
11. Per contra, the learned counsel appearing for the respondents 1 to 4 contended that the accident has occurred only due to rash and negligent driving by the driver of the lorry belonging to the 5th respondent. The respondents 1 to 4 examined the eye-witness to the accident as P.W.2 and marked the F.I.R., which was registered against the driver of the lorry as Ex.P1 and proved the negligence on the part of the driver of lorry. The learned counsel for R1 to R4 further contended that the deceased was working as Havildhar (Army Personnel) and was earning a sum of Rs.21,367/- per month. The respondents 1 to 4 marked the salary certificate of the deceased as Ex.P5 and proved the avocation and income of the deceased. The total compensation awarded by the Tribunal is not excessive and prayed for dismissal of the appeal.
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12. Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents 1 to 4 and perused the entire materials on record.
13. It is the case of the respondents 1 to 4 that the driver of the lorry belonging to the 5th respondent drove the same in a rash and negligent manner and caused the accident. In the accident, deceased Perumal sustained injuries and died. To substantiate their contention, the 1st respondent examined herself as P.W.1 and one Kumar, eye-witness to the accident, was examined as P.W.2 and marked F.I.R., which was registered against the driver of the lorry as Ex.P1. P.W.2 deposed that accident has occurred only due to rash and negligent driving by the driver of the lorry belonging to the 5th respondent.
14. On the other hand, it is the case of the appellant/Insurance Company that there was no negligence on the part of the driver of the lorry and he was not responsible for the accident. The deceased alone rode the motorcycle in a rash and negligent manner, dashed on the lorry and invited the accident. According to the appellant, at the time of accident, the deceased was riding TVS 50 with two pillion riders, lost his control and dashed on the 7/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 right rear side mudguard of the lorry. The deceased did not wear helmet and did not possess valid driving license at the time of accident. Hence, the entire negligence has to be fixed on the deceased. To substantiate their case, the appellant examined the driver of the lorry as RW1, who deposed as that of the averments in the counter statement. The appellant also examined one Sivaguru, an official from RTO office, Krishnagiri as RW2 and marked the Motor Vehicle Inspection Report as Ex.R2. According to appellant, the damage to the lorry is on the back right hand side mudguard and wheels, which shows that accident occurred only due to negligence on the part of the deceased.
15. From the evidence of P.W.2., an eye witness it is seen, P.W.2 deposed that accident occurred only due to rash and negligent driving by driver of lorry. Further, the contents of the First Information Report, Ex.P.1, also supports the case of the respondents 1 to 4. RW1 also deposed that he surrendered before the police after the accident and he did not give any complaint as against the deceased. He deposed that mudguard was protruding from the side of the lorry and did not depose where TVS 50 hit the lorry. Learned counsel for the appellant relied on MVI report to fix the negligence 8/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 on the deceased. RW.1, the driver of the lorry has not stated the place of lorry, where the deceased hit. On the other hand he admitted that he did not give any complaint against the deceased but surrendered before police. The evidence of RW1 does not advance the case of the appellant. The Tribunal, appreciating the oral and documentary evidence of P.W.2, RW1 and RW2, rightly held that the accident occurred only due to the rash and negligent driving by the driver of the lorry and there is no error in the said findings of the Tribunal.
16. Further, it is the case of the appellant that deceased was not having driving license and did not wear helmet at the time of accident. The respondents 1 to 4 did not deny that deceased was not wearing helmet at the time of accident. It is the statutory duty on the part of the rider of two wheeler to wear helmet in order to avoid severe head injury, which in most cases result in death of rider or pillion rider of the motorcycle. The Tribunal held that accident occurred due to negligence of lorry driver. In view of not wearing helmet by the deceased at the time of accident, 15% contributory negligence is fixed on the deceased and 85% of the liability is fixed on the appellant.
9/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020
17. As far as quantum of compensation is concerned, it is the case of the respondents 1 to 4 that deceased was aged 36 years at the time of accident, he was working as Havildhar, (Army Personnel) and was earning a sum of Rs.21,367/- per month. To substantiate their case, they marked Ex.P5 Salary Certificate. The Tribunal, taking into consideration the fact that deceased was in a permanent job, granted 50 % enhancement towards future prospects and after deducting 1/4th towards personal expenses granted a sum of Rs.43,24,860/- as loss of dependency. In addition to that, the Tribunal granted a sum of Rs.40,000/- as loss of consortium, a sum of Rs.15,000/- towards loss of estate and a sum of Rs.15,000/- as Funeral expenses. The Tribunal has not awarded any amount towards loss of parental consortium and filial consortium and hence, a sum of Rs.40,000/- each is awarded to the respondents 2 and 3 towards parental consortium and Rs.40,000/- to the 4th respondent as filial consortium.
18. The Tribunal failed to deduct any amount towards income tax. The Tribunal considering Ex.P.5/Salary Certificate, fixed a sum of Rs.21,367/- as monthly income of the deceased. The accident has occurred on 17.05.2012. During the financial year 2012-2013, upto Rs.2,00,000/-, there is nil tax. 10/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 Thus, the calculation for arriving annual income is as follows :-
Monthly salary of the deceased ... Rs.21,367.00 50% enhancement towards future prospects ... Rs.10,683.05
------------------
Rs.32,050.05
------------------
Annual income (32,050.05 x 12) ... Rs.3,84,601 /-
Income Tax Slab for financial year 2012-2013
Upto Rs.2,00,000/- - Nil
From Rs.2,00,000/- to Rs.5,00,000/- (10%)
[ Rs.1,84,601/- X 10%] - Rs.18,460.00
-------------------
Annual income after deducting income tax
(Rs.3,84,601/- – Rs.18,460) - Rs.3,66,141/-
--------------------
Thus, the compensation awarded by the Tribunal towards loss of dependency is modified to Rs.41,19,086/- (Rs.3,66,141/- X 15 X 3/4). The amounts awarded by the Tribunal under all other heads are just and reasonable and hence, the same are hereby confirmed. Thus the compensation awarded by the Tribunal is modified as follows:11/15
https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 S. Description Amount Amount Award confirmed No awarded by awarded by this or enhanced or Tribunal Court granted or (Rs) (Rs) reduced
1. Loss of dependency 43,24,860 41,19,086 Reduced
2. Loss of consortium to 40,000 40,000 Confirmed 1st respondent
3. Loss of estate 15,000 15,000 Confirmed
4. Funeral expenses 15,000 15,000 Confirmed
5. Parental consortium to - 80,000 granted the respondents 2 and 3
6. Filial consortium to - 40,000 granted the 4th respondent Total 43,94,860 43,09,086 rounded off Rs.43,09,100/ 85% of the award 36,62,735 Reduced by amount Rs.7,32,125/-
(15% negligence fixed on deceased for not wearing helmet)
19. With the above modification, the Civil Miscellaneous Appeal is partly allowed. The compensation of Rs.43,94,860/- granted by the Tribunal is hereby reduced to Rs.36,62,735/- together with interest at the rate of 7.5% per annum (excluding the default period, if any) from the date of petition till the date of deposit. The appellant/Insurance Company is directed to deposit the award amount now determined by this Court along with interest and costs, 12/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 less the amount already deposited if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the respondents 1 and 4 are permitted to withdraw their respective share of the award amount, as per the apportionment fixed by the Tribunal, along with proportionate interest and costs, after adjusting the amount if any, already withdrawn. The shares of the minor respondents 2 and 3 are directed to be deposited in any one of the Nationalized Bank till the minor respondents attain majority. The first respondent being next friend/guardian mother is permitted to withdraw the interest accrued on the shares of the respective minor respondents, once in six months for the welfare and benefit of the minor respondents. The appellant/Insurance Company is permitted to withdraw the excess amount lying in the deposit to the credit of M.C.O.P.No.409 of 2013 on the file of Motor Accident Claims Tribunal, Special District Court, Krishnagiri, if the entire award amount has already been deposited by them. Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (S.S., J) 01.07.2022 mrp 13/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 To
1.The Special District Judge Motor Accident Claims Tribunal Krishnagiri.
2.The Section Officer VR Section High Court, Madras.
14/15 https://www.mhc.tn.gov.in/judis C.M.A.No.392 of 2020 V.M.VELUMANI,J.
and S.SOUNTHAR,J.
mrp C.M.A.No.392 of 2020 and C.M.P.No.2437 of 2020 01.07.2022 15/15 https://www.mhc.tn.gov.in/judis