Madras High Court
Thirumathi.S.Rajakumari vs C.Boopalan on 16 August, 2022
Author: P.T.Asha
Bench: P.T.Asha
CMA.Nos.716 of 2017 & 1298 of 2018 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.08.2022 CORAM THE HONOURABLE MS. JUSTICE P.T.ASHA CMA.Nos.716 of 2017 & 1298 of 2018 and C.M.P.No.4235 of 2018 [CMA.No.716 of 2017] [Thiru Krishnakumar (died)]
1.Thirumathi.S.Rajakumari
2.Selvi Malathy
3.Selvi. Nisha
4.Selvan Padmanaban ... Appellants / Petitioners Vs.
1.C.Boopalan
2.M/s.Chola MS General Insurance Co.Ltd. No.1, College Road, Reshmi Towers, Nungambakkam, Chennai - 600034.
... Respondents / Respondents 1/10 https://www.mhc.tn.gov.in/judis CMA.Nos.716 of 2017 & 1298 of 2018 [CMA.No.1298 of 2018] M/s.Chola MS General Insurance Co.Ltd. No.1, College Road, Reshmi Towers, Nungambakkam, Chennai - 600034.
... Appellant/ 2nd Respondent Vs. [Thiru Krishnakumar (died)]
1.Tmt.S.Rajakumari
2.Selvi. Malathy
3.Selvi. Nisha
4.Selvan. Padmanaban ...Respondents 1 to 4/Petitioners
5.Thiru C.Boopalan ... 5th Respondent/ 1st Respondent PRAYER in CMA.No.716 of 2017 : Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Judgement and Decree dated 01.011.2016 made in MACT. OP. No.898 of 2012, on the file of the III Additional District Judge, Thiruvallur at Poonamallee ( Motor Accident Claims Tribunal).
For Petitioner : Mr.K.Suryanarayanan For Respondent : M/s.Harini for M/s.M.B.Gopalan Associates [R.2] : Exparte [R.1] 2/10 https://www.mhc.tn.gov.in/judis CMA.Nos.716 of 2017 & 1298 of 2018 PRAYER in CMA.No.1298 of 2018 : Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Judgement and Decree made in MCOP. No.898 of 2012, dated 01.011.2016 on the file of the Motor Accident Claims Tribunal, III Additional District Court, Thiruvallur at Poonamallee For Petitioner : M/s.Harini for M/s.M.B.Gopalan Associates For Respondent : Mr.K.Suryanarayanan [R.1 to R.4] (Vide order dated 05.07.2022) COMMON JUDGEMENT The insurance company as well as the petitioners have filed appeals against the award passed by the Motor Accidents Claims Tribunal, III Additional District Court, Thiruvallur at Poonamallee in MCOP.No.898 of 2012.
2. The claimants/petitioners have filed CMA.No.716 of 2017 seeking an enhancement of the award passed particularly with reference to the fastening of contributory negligence of 50% on the deceased. 3/10 https://www.mhc.tn.gov.in/judis CMA.Nos.716 of 2017 & 1298 of 2018
3. CMA.No.1298 of 2018 has been filed by the insurance company challenging the very liability to pay compensation, since the vehicle that had caused the accident was an unknown vehicle and the vehicle belonging to the 1st respondent was in no way involved in the accident.
4. The facts in brief are as follows and the parties are referred to in the same ranking as before the Tribunal below.
5. The original petitioner Krishna Kumar (deceased) had filed MCOP.No.898 of 2012 before the Motor Accidents Claim Tribunal, III Additional District Court, Thiruvallur at Poonamallee claiming a compensation of a sum of Rs.20,00,000/- for the injuries sustained by him in a road accident. It is his case that he is working as a Village Administrative Officer at Porur, Chennai and aged about 54 years. He would submit that on 27.10.2011 at about 2:30 p.m. when he was riding his Motorcycle bearing Registration. No.TN-20-AR-8623 from Tambaram to Ambattur and proceeding on the Maduravoil by-pass Road, an unknown car driven in a rash and negligent manner coming in the same direction hit the petitioner and sped away. By reason of this impact, the motorcycle went and dashed 4/10 https://www.mhc.tn.gov.in/judis CMA.Nos.716 of 2017 & 1298 of 2018 against the Lorry which was parked on the left side of the road. By reason of the hit on the Lorry, the petitioner had sustained grievous injuries to the head region. Pending the petition he had passed away and his legal representatives were brought on record.
6. The 1st respondent remained ex parte and the 2nd respondent/ insurance company had filed a counter inter alia contending that the Lorry which is insured with them was neither involved in the accident nor was the Lorry in use at that relevant point of time. The accident admittedly is caused by an unknown vehicle, therefore the 2nd respondent cannot be made liable to compensate the petitioners.
7. The 2nd respondent/insurance company has further put the petitioners to strict proof that the deceased Krishna Kumar had a valid driving license. They had also questioned the quantum of compensation claimed. The 2nd respondent would contend that they cannot be made liable for the accident or to pay compensation. 5/10 https://www.mhc.tn.gov.in/judis CMA.Nos.716 of 2017 & 1298 of 2018
8. The Tribunal below on considering the evidence on record held that both the claimant as well as the 1st respondent was equally responsible for the accident and therefore apportioned the negligence at 50% each on the deceased petitioner and the 1st respondent's Lorry. Ultimately, the Tribunal has passed an award for a sum of Rs.22,27,189/- of which the insurance company was liable to pay a sum of Rs.11,13,594/-.
9. Dissatisfied with the award amount as being low, the claimants are before this Court. Since, the 2nd respondent/ insurance company has been fastened with the liability, despite the fact that the Lorry is in no way involved in the accident, the insurance company is before this Court.
10. M/s Harini, learned counsel appearing on behalf of the insurance company would submit that a very perusal of the claim petition would show that the Lorry which is insured with them had in no way contributed to the accident and on the contrary, it was an unknown vehicle which had hit the motorcycle which the petitioner was riding and on account of this impact, the deceased’s motorcycle had gone and hit the stationary Lorry which was parked on the side of the road. She would submit that since the very liability 6/10 https://www.mhc.tn.gov.in/judis CMA.Nos.716 of 2017 & 1298 of 2018 was being questioned, there is no question of quantum being enhanced.
11. Per Contra. Mr.K.Suryanarayanan, learned counsel appearing on behalf of the petitioners would submit that the Tribunal has erred in fastening 50% contributory negligence on the petitioners totally overlooking the fact that the Lorry was parked at a place not allocated for parking of vehicles and that part, there is no indicator to show its presence. He would therefore submit that the entire income has to be taken into consideration for calculating the loss of income.
12. Heard the counsels.
13. The deceased/petitioner who had originally filed the claim petition and who was the eye witness to his own accident has clearly stated that it was an unknown vehicle that had hit him from behind and by reason of this impact the motorcycle in which the deceased/petitioner was travelling hit the stationary Lorry. Therefore, from the very narration it is clear that the accident was not caused by the Lorry and the Lorry was only stationary and parked on the side of the road.
7/10 https://www.mhc.tn.gov.in/judis CMA.Nos.716 of 2017 & 1298 of 2018
14. The petitioners at best would be entitled to a sum of Rs.1,00,000/- under the no-fault liability, since it is clear that the stationary Lorry was in no way responsible for the accident. Therefore, the Civil Miscellaneous Appeals are partly allowed. The order of the Tribunal below is set aside and a sum of Rs.1,00,000/- alone is granted to the claimants/petitioners under the head of no-fault liability. In all other respects the award of the Tribunal is set aside..
15. The 2nd respondent/insurance company is directed to deposit the said amount (Rs.1,00,000 /-) to the credit of M.C.O.P.No.898 of 2012 on the file of the Motor Accident Claims Tribunal, III Additional District Court, Thiruvallur at Poonamallee less, the amount, if any already deposited, within a period of six weeks from the date of receipt of a copy of this Judgement. On such deposit being made, the petitioners are permitted to withdraw the award amount now determined by this Court. The Insurance Company if it has deposited a higher amount is permitted to withdraw the excess amount lying in the deposit to the credit of M.C.O.P.No.898 of 2012 on the file of the Motor Accident Claims Tribunal, III Additional District Court, 8/10 https://www.mhc.tn.gov.in/judis CMA.Nos.716 of 2017 & 1298 of 2018 Thiruvallur at Poonamallee. No costs. Consequently, the connected Miscellaneous Petition is closed.
16.08.2022 Index : Yes/No Internet: Yes/No shr To
1. The Motor Accident Claims Tribunal, III Additional District Court, Thiruvallur at Poonamallee.
2.The Section Officer, V.R.Section, High Court, Madras.
9/10 https://www.mhc.tn.gov.in/judis CMA.Nos.716 of 2017 & 1298 of 2018 P.T. ASHA, J, shr CMA.Nos.932 & 1108 of 2018 and C.M.P.Nos.7639 & 1075 of 2018 16.08.2022 10/10 https://www.mhc.tn.gov.in/judis