Madras High Court
The Branch Manager vs Chitra on 29 August, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.1199 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.1199 of 2020
and
C.M.P.No.7468 of 2020
The Branch Manager,
United India Insurance Co. Ltd.,
No.2, Dr.Sankaran Road,
Namakkal District. .. Appellant
Vs.
1.Chitra
2.Thiyagarajan
3.M/s.M.K.Ek Traders,
No.149/66, Thuraiyur Road,
Lotus Complex, Opp. to New Palace,
Namakkal District. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 24.08.2018, made in
M.C.O.P.No.461 of 2012, on the file of the Motor Accident Claims Tribunal, Sub
Court, Sangagiri.
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C.M.A.No.1199 of 2020
For Appellant : Mr.J.Chandran
For RR 1 & 2 : Mr.T.S.Arthanareeswaran
for Mr.C.Paraneedharan
For R3 : Left
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 24.08.2018, made in M.C.O.P.No.461 of 2012, on the file of the Motor Accident Claims Tribunal, Sub Court, Sangagiri.
2.The appellant is the 2nd respondent in M.C.O.P.No.461 of 2012, on the file of the Motor Accident Claims Tribunal, Sub Court, Sangagiri. The respondents 1 & 2/claimants filed the said claim petition, claiming a sum of Rs.25,00,000/- as compensation for the death of their son Sankaranarayanan, who died in the accident that took place on 04.01.2012.
3.According to the respondents 1 & 2, on 04.01.2012 at about 03.15 P.M., while their son Vijayakumar was riding the motorcycle bearing Registration No.TN 2/13 https://www.mhc.tn.gov.in/judis C.M.A.No.1199 of 2020 30 AK 1694 on the Tiruchengodu – Erode Main Road near Rajakavandampalayam Weigh Bridge, the driver of the lorry bearing Registration No.TN 28 AF 1551 belonging to 3rd respondent drove the same in a rash and negligent manner, dashed on the backside of the motorcycle driven by the said Sankaranarayanan and caused the accident. Due to the said impact, the said Sankaranarayanan fell down on the ground, sustained injuries on the head and died in the Hospital on 25.03.2012. Hence, the respondents 1 & 2 filed the said claim petition claiming compensation against the 3rd respondent and appellant, being the owner and insurer of the lorry respectively.
4.The 3rd respondent – owner of the lorry remained exparte before the Tribunal.
5.The appellant-Insurance Company filed counter statement and denied all the averments made by the respondents 1 & 2. The appellant denied the manner of accident as alleged by the respondents 1 & 2. According to the appellant, on the date of accident while the said Sankaranarayanan was riding the motorcycle without noticing the pit which is adjacent to the damaged water pipe, fell down in the pit, invited the accident and got injuries on his head. Only with a view to get compensation from the Insurance Company, the respondents 1 & 2 gave a false 3/13 https://www.mhc.tn.gov.in/judis C.M.A.No.1199 of 2020 complaint as the lorry bearing Registration No.TN 28 AF 1551 was involved in the accident. After investigation, the Tiruchengode Town Police closed the case as mistake of fact, since the lorry belonging to 3rd respondent was not involved in the accident. There is no damages in both the vehicles and this shows that the lorry belonging to 3rd respondent was not involved in the accident. The accident has not occurred due to the negligence on the part of the driver of the lorry belonging to 3 rd respondent. The respondents 1 & 2 have to prove that they are the legal heirs of the deceased by producing legal heir certificate issued by the concerned Tahsildar. The appellant denied the age, avocation and income of the deceased. In any event, the quantum of compensation claimed by the respondents 1 & 2 are highly excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1, one K.Vijay, co-worker of the deceased Sankaranarayanan was examined as P.W.2, one Subramani @ Mani, eyewitness to the accident was examined as P.W.3, Dr.Prabu Ramnath was examined as P.W.4 and 18 documents were marked as Exs.P1 to P18. The appellant examined one Nadhan, Administrative Officer as R.W.1 and Barathi Mohan, Police Inspector, Tiruchengode Town Police Station as R.W.2 and two documents were marked as Exs.R1 & R2.
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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 3rd respondent and directed the appellant to pay a sum of Rs.24,60,000/- as compensation to the respondents 1 to 2.
8.Challenging the liability fastened on them and questioning the quantum of compensation granted by the Tribunal in the award dated 24.08.2018, made in M.C.O.P.No.461 of 2012, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant contended that the Tribunal failed to consider the evidence of R.W.1 and R.W.2 and the fact that FIR was lodged after delay of 2 days from the date of accident and the charge sheet was closed as mistake of fact as the deceased drove the motorcycle without helmet in a rash and negligent manner over a water damaged pit, fell down himself and invited the accident. The Tribunal ought to have dismissed the claim petition as against the appellant as there was no damage on the part of the lorry as per Motor Vehicle Inspector's Report. The Tribunal in the absence of any proof of employment of the deceased like Attendance Register, Pay Register, Employees Provident Fund and statement of account from Bank, fixed excessive amount of Rs.13,000/- as monthly 5/13 https://www.mhc.tn.gov.in/judis C.M.A.No.1199 of 2020 income of the deceased as against the claim of the respondents 1 & 2 that the deceased was earning a sum of Rs.10,000/- per month. The multiplier '18' adopted and 40% enhancement granted towards future prospects are on the higher side. The amounts awarded by the Tribunal under pain and sufferings and loss of love and affection are highly excessive. The total compensation awarded by the Tribunal is excessive and prayed for setting aside the award passed by the Tribunal.
10.The learned counsel appearing for the respondents 1 & 2 submitted that the driver of the lorry belonging to 3rd respondent only drove the same in a rash and negligent manner and dashed against the motorcycle driven by the deceased Sankaranarayanan and caused the accident. There is no negligence on the part of the deceased and the Tribunal considering the evidence of P.W.3 / eyewitness, has rightly fixed the negligence on the part of the driver of the lorry belonging to 3rd respondent. According to respondents 1 & 2, at the time of accident, the deceased was aged 21 years, working as Customer Care Executive at Spanco BPO Services Ltd., and was earning a sum of Rs.10,000/- per month. To prove the said contention, the respondents 1 & 2 marked the letter issued by the Spanco as Ex.P11 and examined one K.Vijay, who is the co-worker of the deceased as P.W.2. P.W.2 deposed that the deceased was earning more than Rs.15,500/- per month. But, the 6/13 https://www.mhc.tn.gov.in/judis C.M.A.No.1199 of 2020 Tribunal has fixed a sum of Rs.13,000/- as monthly income of the deceased and awarded compensation towards loss of dependency. After the accident, the deceased Sankaranarayanan has taken treatment in the Hospital till 24.03.2012. Hence, the amounts awarded by the Tribunal towards pain and sufferings and medical expenses are not excessive. The total compensation awarded by the Tribunal is not excessive and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents 1 & 2 and perused the entire materials on record.
12.From the materials on record, it is seen that it is the case of the respondents 1 & 2 that while their son Sankaranarayanan was riding the motorcycle on the Tiruchengodu – Erode Main Road near Rajakavandampalayam Weigh Bridge, the driver of the lorry belonging to 3rd respondent drove the same in a rash and negligent manner and dashed on the backside of the motorcycle driven by the said Sankaranarayanan and caused the accident. Due to the said impact, the said Sankaranarayanan sustained injuries on the head and died in the Hospital on 25.03.2012. To substantiate their case, the 1st respondent examined herself as 7/13 https://www.mhc.tn.gov.in/judis C.M.A.No.1199 of 2020 P.W.1 and examined one Subramani @ Mani, eyewitness to the accident as P.W.3 and marked F.I.R., which was registered against the driver of the lorry as Ex.P1. P.W.3 / eyewitness deposed that the driver of the lorry drove the same in a rash and negligent manner and dashed on the backside of the motorcycle driven by the deceased and tried to run away from the place of occurrence. The public after 50 feet from the place of occurrence, prevented the driver of the lorry from proceeding further and stopped the lorry and the driver of the lorry informed his name as Prabu. P.W.3 and others made arrangement to take the victim in Ambulance to the Government Hospital, Tiruchengode. From the details found in the Identity Card of the deceased, one Sivakumar informed the family members of the deceased Sankaranarayanan over phone. P.W.3 withstood the cross examination by the counsel for the appellant. Nothing favourable to the appellant was elucidated from P.W.3.
12(a). On the other hand, it is the case of the appellant that the lorry belonging to 3rd respondent was not involved in the accident and the accident has not occurred due to rash and negligent driving by the driver of the lorry belonging to 3rd respondent. The deceased without seeing the pit in the road, drove the two wheeler into the pit, fell down and sustained injuries. The Police after 8/13 https://www.mhc.tn.gov.in/judis C.M.A.No.1199 of 2020 investigation, closed the case as mistake of fact. To substantiate their case, the appellant examined their Administrative Officer as R.W.1. R.W.1 is not an eyewitness to the accident. The appellant also examined the Inspector of Police, Tiruchengode Town Police Station as R.W.2. R.W.2 deposed based on the records available and stated that the place of occurrence as per the rough sketch is a straight road. He admitted in cross examination that there is no document to show the persons who were enquired into, final report being sent to the concerned Magistrate and order accepting the final report. The learned Judge considering the evidence of R.W.2, opined that the case was not properly investigated and closed the case as mistake of fact. The learned Judge did not accept the final report. The appellant did not examine the driver of the lorry or any eyewitness to prove their case. Considering the evidence of P.W.3, F.I.R. and in the absence of any contra evidence to the evidence of P.W.3, the learned Judge held that the accident occurred only due to rash and negligent driving by the driver of the lorry belonging to 3rd respondent. There is no error in the said finding of the Tribunal.
13.As far as quantum of compensation is concerned, it is the case of the respondents 1 & 2 that their son was working as Customer Care Executive at Spanco BPO Services Ltd., and was earning a sum of Rs.15,500/- per month. To 9/13 https://www.mhc.tn.gov.in/judis C.M.A.No.1199 of 2020 substantiate their case, they examined one K.Vijay as P.W.2, who is the co-worker of the deceased. P.W.2 deposed that both he and deceased were working as Customer Care Executive at Spanco BPO Services Ltd., and he was getting a sum of Rs.15,000/- per month as salary and the deceased was earning a sum of Rs.15,500/- per month as salary. P.W.2 did not file any document to substantiate the income of the deceased. In the absence of document with regard to income of the deceased, the Tribunal did not accept the amount mentioned by P.W.2. The Tribunal observing the demur of P.W.2 and his evidence, fixed a sum of Rs.13,000/- per month as notional income of the deceased stating that even if Rs.500/- was paid to the deceased per day for 26 days, he would have earned a sum of Rs.13,000/- per month. The accident is of the year 2012. The notional income fixed by the Tribunal is not excessive. The Tribunal has awarded a sum of Rs.1,00,000/- towards pain and sufferings for which the respondents 1 & 2 are not entitled to. Hence, the amount awarded by the Tribunal towards pain and sufferings is liable to be set aside and it is hereby set aside. The Tribunal has awarded excessive amount of Rs.2,00,000/- towards loss of love and affection to the respondents 1 & 2 who are the parents of the deceased and the same is modified as the respondents 1 & 2 are entitled to a sum of Rs.40,000/- each towards filial consortium as they have lost their son at young age. The amounts awarded by the 10/13 https://www.mhc.tn.gov.in/judis C.M.A.No.1199 of 2020 Tribunal under other heads are just and reasonable and hence, the same are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows:
S. Description Amount awarded Amount Award
No by Tribunal awarded by this confirmed or
(Rs) Court enhanced or
(Rs) granted
1. Loss of dependency 19,70,000/- 19,70,000/- Confirmed
2. Loss of love and affection 2,00,000/- - Set aside
to respondents 1 & 2
3. Pain and sufferings 1,00,000/- - Set aside
4. Medical expenses 1,50,000/- 1,50,000/- Confirmed
5. Transportation 10,000/- 10,000/- Confirmed
6. Funeral expenses 15,000/- 15,000/- Confirmed
7. Loss of estate 15,000/- 15,000/- Confirmed
8. Filial consortium to
respondents 1 & 2 - 80,000/- Granted
Total Rs.24,60,000/- Rs.22,40,000/- Reduced by
Rs.2,20,000/-
14.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.24,60,000/- is hereby reduced to Rs.22,40,000/-. The appellant-Insurance Company is directed to deposit the award amount now determined by this Court along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of 11/13 https://www.mhc.tn.gov.in/judis C.M.A.No.1199 of 2020 this judgment, to the credit of M.C.O.P.No.461 of 2012, on the file of the Motor Accident Claims Tribunal, Sub Court, Sangagiri. On such deposit, the respondents 1 & 2 are permitted to withdraw their respective share of the award amount now determined by this Court as per the ratio of apportionment fixed by the Tribunal, along with proportionate interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The appellant is permitted to withdraw the excess amount lying in the credit of M.C.O.P.No.461 of 2012, if the entire award amount has been already deposited by them. Consequently the connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (S.S., J)
29.08.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The Subordinate Judge,
Motor Accidents Claims Tribunal,
Sangagiri.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.1199 of 2020
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
krk
C.M.A.No.1199 of 2020
29.08.2022
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