Madras High Court
Branch Manager vs Sasikala on 23 April, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
C.M.A.No.2212 of 2009
Branch Manager,
The National Insurance Company Limited,
No.62, T.S.R.Big Street,
Munsif Kumbakkonam Town,
Kumbakkonam Taluk ... Appellant
Versus
1.Sasikala
2.Minor Viswanathan
3.Minor Viswapriya
(Minors 2 and 3 are represented by
the first respondent)
4.N.Manickam ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree passed in MACT.OP.No.206
of 2007 dated 08.08.2008 on the file of the Motor Vehicle Accidents Claims
Tribunal, Thiruvarur.
Page 1 of 14
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2212 of 2009 and
Cros.Obj.No.134 of 2011
For Appellant : M/s.N.B.Surekha
For Respondents
For R1 to 3 : Mr.M.Thamizhavel
Cros.Obj.No.134 of 2011
1.Sasikala
2.Minor Viswanathan
3.Minor Viswapriya
(Minors 2 and 3 are represented by
the first appellant) ... Appellants
Versus
National Insurance Company Limited,
Rep. by its Branch Manager,
Kumbakonam ... Respondent
Prayer: Cross Objection filed under Order XLI Rule 22 of CPC to modify
the judgment and decree dated 08.08.2008 made in MCOP.No.206 of 2007
on the file of the Motor Accident Claims Tribunal, Tiruvarur.
For Appellants : Mr.M.Thamizhavel
For Respondent : M/s.N.B.Surekha
JUDGMENT
This appeal has been laid as against the judgment and decree dated Page 2 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 08.08.2008 made in MACT.OP.No.206 of 2007 on the file of the Motor Vehicle Accidents Claims Tribunal, Thiruvarur thereby awarded the compensation to the tune of Rs.50,000/-.
2. For the sake of convenience, the parties are referred to hereunder according to their litigative status before the Tribunal.
3. The case of the claimants is that on 01.07.2007, the deceased was riding in the motor cycle driven by the first respondent as a pillian rider, Thandalai Main Road, opposite to Lakshmi Complex. The first respondent drove the motorcycle in a rash and negligent manner and hit the speed breaker without applying brakes. Therefore, the pillion rider i.e. deceased was thrown out from the two wheeler and fell down on the road. Therefore, he sustained head injury. Immediately, he was taken to hospital and unfortunately the treatment failed and he died. Therefore, the claimant filed claim petition seeking compensation at Rs.7,00,000/-.
4. Resisting the same, the second respondent filed counter stating that only because of the negligence of the deceased, he fell down. Further, Page 3 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 the first respondent, the rider of the motor vehicle had no valid driving licence to drive the motor cycle and as such the second respondent is not at all held to be liable for any compensation and sought for dismissal of the claim petition.
5. On the side of the claimants, they examined P.W.1 and P.W.2 and marked Ex.P.1 to Ex.P.7. On the side of the respondents, they examined R.W.1 and marked Ex.R.1 to Ex.R.3. On the basis of the evidence available on records and also considering the submissions made by the learned counsel appearing on either side, the Tribunal awarded a sum of Rs.50,000/- under the head of 'No Fault Liability' under Section 140 of Motor Vehicles Act. Aggrieved by the same, the second respondent came forward with the present appeal questioning the liability. The claimants also filed cross objection for enhancement of the award.
6. The learned counsel appearing for the second respondent submitted that RW1, who is the rider of the two wheeler deposed that only on the rash and negligent driving, the pillion rider fell down from the motor Page 4 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 cycle and sustained head injury. Whereas, Ex.R2 accident register which was the first document immediately after accident revealed that two wheeler hit one four wheeler while it was coming from the opposite side, due to which the deceased fell down and sustained head injury and died. Therefore, the second respondent is not at all held to be liable for any compensation, since only because of the rash and negligent driving of the four wheeler which was coming on the opposite side, the accident took place. Even assuming that only on the rash and negligent driving of the first respondent, the accident took place, the deceased was being pillion rider, he failed to hold the bike carefully and he himself fell down from the two wheeler and sustained head injury and died. She further submitted that the first respondent had no valid licence at the time of accident. The licence of the first respondent is marked as Ex.R3. It revealed that he had valid licence only for light motor vehicle and heavy motor vehicle and not for motorcycle. Therefore, the first respondent violated the conditions of the policy and if any award passed as against the second respondent, the second respondent is entitled to recover the same from the first respondent, who is being owner of the two wheeler.
Page 5 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011
7. Per contra, the learned counsel appearing for the claimants would contend that though the accident register which is marked as Ex.R2 revealed that the accident took place only because of one four-wheeler hit the two wheeler and as such the deceased fell down and sustained head injury. The person who brought the deceased to the hospital is not an eye witness i.e. one, Baskaran, the relative of the deceased. Whereas PW2 is the eye witness, who categorically deposed that only because of the rash and negligent driving of the first respondent, he hit the speed breaker and due to which the deceased fell down and he sustained head injury. Except head injury, no other injury found in the body of the deceased. It is also duly corroborated by RW1, who is the rider of the two wheeler and admitted his guilty and also paid fine. Therefore, the Tribunal failed to fasten the entire liability on the second respondent and awarded only a sum of Rs.50,000/-, that too under 'No Fault Liability'.
8. Heard M/s.N.B.Surekha, learned counsel appearing for the respondents and Mr.M.Thamizhavel, learned counsel appearing for the appellants.
Page 6 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011
9. The deceased was the pillion rider of the motorcycle which was driven by the first respondent. On 01.07.2007, when they were travelling in Thandalai Main road, opposite to Lakshmi Complex at about 2 p.m., the first respondent without noticing the speed breaker hit the same due to which the deceased fell down from the motor cycle and sustained head injury. Immediately, he was taken to hospital and treatment failed and died. At the time of accident, the deceased was aged about 42 years and he was working as Village Assistant of Panchayat President and he was earning Rs.8,000/- per month. On the complaint lodged by the first respondent i.e. the rider of the motorcycle, FIR was registered and also charge sheeted against him. He admitted his guilt and paid fine before the jurisdictional Magistrate Court. He was examined as RW1 and deposed that only on the rash and negligent driving of RW1, the deceased fell down from the motorcycle and sustained head injury and died. There is no whisper about the four wheeler which was allegedly coming from the opposite side and hit the two wheeler. That apart, PW2 who is the eye witness to the occurrence, he categorically deposed that only on the rash and negligent driving of the first respondent, the deceased fell down from the motor cycle and sustained Page 7 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 head injury. Though the second respondent marked accident register as Ex.R2, revealed that the two wheeler was hit by one four-wheeler which was coming from the opposite side and due to which, the deceased fell down from the motorcycle. The deceased was brought by one, Baskaran, who is a relative of the deceased and whatever the person who brought the deceased said before the hospital and it was recorded in the accident register. Admittedly, the said Baskaran is not an eye witness to the occurrence and he was also not examined by the second respondent. Therefore, the Tribunal wrongly concluded that the accident took place only because of four wheeler, which was coming from the opposite side hit the two wheeler, due to which, the deceased fell down from the bike and sustained head injury and died.
10. Therefore, the accident took place only because of the rash and negligent driving of the first respondent, the deceased fell down from the bike and sustained head injury and died. Even the first respondent without noticing the speed breaker hit the speed breaker and due to which the deceased fell down and at the same time, the deceased also failed to hold the Page 8 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 bike properly and he fell down from the bike. Therefore, the contributory negligence on the part of the deceased is fixed at 65% and the contributory negligence fixed at 35% on the rash and negligent driving of the first respondent. Insofar as the licence to ride the motor cycle is concerned, on perusal of the Ex.R3 revealed that the licence was issued in favour of the first respondent only to drive light motor vehicle and heavy motor vehicle and not licenced for riding motorcycle with gear. Therefore, the first respondent violated the policy condition and as such he is held to be liable for compensation.
11. Though it is stated that the deceased was working as Village Assistant to Panchayat President and he was drawing salary of Rs.8,000/-, except oral evidence PW1, no evidence is available. Accident took place in the year 2007 and as such the salary of the deceased is fixed at Rs.5,000/- per month. At the time of accident, he was aged about 42 years as such future prospect is fixed at 25%. The personal expenditure of the deceased is deducted at 1/3 and multiplier method applied at 14. Accordingly the pecuniary loss by the claimants is calculated as follows :- Page 9 of 14
https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 = 6250 X 12 X14 = 10,50,000/-
After deducting 1/3, comes to Rs.7,00,000/-. The claimants are the wife and two minor children and they are entitled to compensation each Rs.40,000/-
under the head of love and affection and totally comes to 1,20,000/-.
Liability is fastened on the second respondent at 35% and the liability fastened on the deceased at 65% for the accident.
12. Accordingly the compensation awarded by the Tribunal stands modified as under :-
Sl.No Heads Awarded by the Awarded by this
Tribunal Court
1 Loss of income Rs.50,000/- Rs.7,00,000/-
under no fault
liability
2 Love and Affection NIL Rs.1,20,000/-
3 Funeral expenses NIL Rs.15,000/-
4 Loss of Estate NIL Rs.15,000/-
5 Transportation NIL Rs.6,000/-
Total Rs.50,000/- Rs.8,56,000/-
From the above, 35% of the entire compensation comes to Rs.2,99,600/-, Page 10 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 rounded to Rs.3,00,000/- payable by the second respondent.
13. In the result, the Civil Miscellaneous Appeal is dismissed and Cross objection is partly allowed as follows:-
(i) The award passed by the Tribunal is enhanced from Rs.50,000/- to Rs.8,56,000/-, wherein the claimants are entitled to get 35% of the said amount i.e. Rs.3,00,000/- from the second respondent.
(ii) The above amount i.e. Rs.3,00,000/- will carry the interest at the rate of 7.5% per annum from the date of the claim petition till the date of deposit.
(iii) The apportionment of Rs.3,00,000/- out of the enhanced award amount is as follows:-
1st respondent herein - Rs.1,20,000/-
2nd respondent herein - Rs.90,000/-
3rd respondent herein - Rs.90,000/-
(iv) The appellant / insurance company is directed to deposit the
35% award amount i.e. Rs.3,00,000/-, less the amount, if any, already deposited, along with accrued interest and costs within a period of six weeks from the date of receipt of copy of this Judgment. Thereafter, the appellant / insurance company is at liberty to recover the said amount from the first respondent in MCOP.No.206 of 2007 in the manner known to law.
(v) On such deposit, the claimants / respondents herein are permitted Page 11 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 to withdraw the amount awarded as above by filing proper application before the Tribunal.
(vi) The shares of the 2nd and 3rd respondents herein /minor claimants are directed to be deposited in any one of the nationalized bank till they attain majority. The 1st respondent herein /Mother of the 2nd and 3rd respondents herein is permitted to withdraw the accrued interest once in three months.
(vii) The claimants / respondents herein shall pay requisite Court fee before the receipt of the copy of the judgment for the enhanced compensation.
(viii) There shall be no order as to costs.
23.04.2021 Index:Yes/No Internet: Yes/no Speaking/Non-speaking Order lok Page 12 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 To
1.The Judge, Motor Accident Claims Tribunal, Thiruvarur.
2.The Section Officer, V.R.Section, Madras High Court, Chennai.
Page 13 of 14 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 G.K.ILANTHIRAIYAN, J.
lok C.M.A.No.2212 of 2009 and Cros.Obj.No.134 of 2011 23.04.2021 Page 14 of 14 https://www.mhc.tn.gov.in/judis/