Madras High Court
The Divisional Manager vs K.Gnanaraj on 16 September, 2019
Author: K.K.Sasidharan
Bench: K.K.Sasidharan, Abdul Quddhose
C.M.A.No.1298 of 2019
and
C.M.P.No.3591 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.09.2019
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
and
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.1298 of 2019
and
C.M.P.No.3591 of 2019
The Divisional Manager,
National Insurance Company Ltd.,
Having Office at LRN Colony,
Asthampatti, Salem. ... Appellant
vs.
1.K.Gnanaraj
2.G.Eliizabad
3.G.John Robinson
4.G.Belsia Merlin
5.R.Sigamani ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and decree dated 31.08.2017
and made in MCOP.No.893 of 2016 on the file of the Special District
Court, Motor Accident Claims Tribunal, Salem.
For Appellant : Mr.S.Vadivel
For Respondents 1 to 4 : Mr.P.Veeraraghavan
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http://www.judis.nic.in
C.M.A.No.1298 of 2019
and
C.M.P.No.3591 of 2019
JUDGMENT
[Judgment of the Court was made by ABDUL QUDDHOSE, J.] This appeal has been filed by the insurance company challenging the award dated 31.08.2017 passed by the Special District Court, Motor Accident Claims Tribunal, Salem in MCOP.No.893 of 2016. Brief facts leading to the filing of the instant appeal:
2. A person by name Kingston Rajesh died on 04.10.2015 as a result of an accident caused by a Hero Honda Bike bearing registration No.TN36 3805 owned by the fifth respondent and insured with the Appellant. The accident happened when the deceased was riding in a Honda Shine bike bearing registration No.TN36 R 3033, when the Hero Honda Bike bearing registration No. TN36 3805 which was coming in the opposite direction and dashed against his motor cycle and Kingston Rajesh was thrown out of his vehicle and he sustained fatal injuries which resulted in his death.
3. The parents of the deceased namely K.Gnanaraj and G.Elizabeth, his brother G.John Rabinson and his sister Belsia Merlin 2/10 http://www.judis.nic.in C.M.A.No.1298 of 2019 and C.M.P.No.3591 of 2019 preferred a claim for the death of Kingston Rajesh, before the Special District Court, Motor Accident Claims Tribunal, Salem in MCOP.No.893 of 2016 against the fifth respondent as well as the Appellant, insurance company seeking a compensation of Rs.56,65,000/- which was restricted by the claimants to Rs.50,00,000/-.
4. By an award dated 31.08.2017 passed in MCOP.No.893 of 2016, the Motor Accident Claims Tribunal directed the Appellant insurance company to pay the claimants a sum of 27,36,600/- together withh interest at the rate of 7.5% per annum from the date of claim till the date of realisation. Out of the total compensation, the Tribunal determined the compensation payable to the first respondent at Rs.8,00,000/-, the second respondent at Rs.13,36,000/- and the third and fourth respondents, a sum of Rs.3,00,000/- each.
5. Aggrieved by the award dated 31.08.2017 passed in MCOP.No.893 of 2016 by the Motor Accident claims Tribunal, the insurance company has preferred this appeal.
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6. Heard Mr.S.Vadivel, learned counsel appearing for the Appellant-Insurance company and Mr.P.Veeraraghavan, learned counsel appearing for the respondents 1 to 4.
Discussion:
7. The Appellant insurance company has challenged the impugned award on the ground that the entire negligence ought not to have been fastened on the insured vehicle as the deceased was also responsible for the accident. They have also challenged the quantum of compensation assessed by the Tribunal, in particular, they challenged the assessment of the notional monthly income of the deceased and the loss of future prospects assessed by the Tribunal.
8. This Court has perused and examined the impugned award as well as the materials and evidence available on record.
9. Before the Tribunal, the claimants have produced 17 documents which were marked as Ex.A1 to A17 and two witnesses were 4/10 http://www.judis.nic.in C.M.A.No.1298 of 2019 and C.M.P.No.3591 of 2019 examined on his side viz., PW1- the father of the deceased who is the first respondent herein and PW2 – an eye-witness to the accident. On the side of the fifth respondent as well as the Appellant, seven documents were marked as Ex.B1, Ex.X1 to Ex.X6 and three witnesses were examined viz., RW1- rider of the offending two wheeler, RW2 - Elango, Inspector of Police, Bhavani Police Station and RW3 – an official of Insurance Company.
10. Admittedly, Ex.P1-FIR was registered only against the deceased based on the complaint given by the rider of the offending two wheeler bearing registration No.TN 36 3805. As seen from the evidence, Rangasamy, the rider of the offending two wheeler bearing registration No.TN 36 3805 was the person who took the deceased to the hospital after the accident. The police have closed the criminal case as abated, due to the death of Kingston Rajesh.
11. Before the Tribunal, PW2-the eye-witness has deposed that the accident happened when he was walking near All Women Police 5/10 http://www.judis.nic.in C.M.A.No.1298 of 2019 and C.M.P.No.3591 of 2019 Station in Bhavani – Andhiyur Main Road, when the two wheeler bearing registration No.TN 36 R 3033 was going in front of him at a distance of 10 feet and at that time, a two wheeler bearing registration No. TN36 3805 which came through cross road in a rash and negligent manner, hit the two wheeler bearing registration No.TN36 R 3033 and due to the said accident, Kingston Rajesh who has driving the two wheeler bearing registration No.TN36 R 3033 fell down and due to head injuries, he died on the spot.
12. However, the Tribunal under the impugned award accepted the evidence of PW1 that the accident had happened only due to the rash and negligent driving by the rider of the offending vehicle (insured vehicle) and directed the Appellant insurance company who is the insurer of the two wheeler bearing registration No.TN36 3805 to pay the entire compensation amount without attributing any negligence on the part of the deceased.
13. Since the FIR was registered only against the deceased, We are of the considered view that the Tribunal ought to have apportioned 6/10 http://www.judis.nic.in C.M.A.No.1298 of 2019 and C.M.P.No.3591 of 2019 the contributory negligence between the rider of the offending two wheeler as well as the deceased who was the rider in the other two wheeler. Considering the same, we apportion the contributory negligence between the rider of the offending two wheeler bearing registration No.TN36 3805 and the deceased who was rider in the two wheeler bearing registration No.TN36 R 3033 in the ratio of 75 : 25 and the Appellant is liable to pay only 75 % of compensation amount i.e., Rs.20,52,450/- by deducting 25% towards contributory negligence on the part of the deceased.
14. Before the Tribunal, the claimants had claimed that the deceased was running a shop in the name of Nellai Store and earning a sum of Rs.20,000/- per month. The Tribunal assessed the monthly notional income of the deceased as 17,200/- by calculating the average of three years Income Tax statements which were marked as Ex.P13 to Ex.P15. We are of the considered view that the notional monthly income of the deceased assessed by the Tribunal is a correct assessment. 7/10 http://www.judis.nic.in C.M.A.No.1298 of 2019 and C.M.P.No.3591 of 2019
15. The age of the deceased was 30 years which has been proved by Ex.A17-Driving licence of the deceased. Considering the age of the deceased, the Tribunal added 50% to the monthly notional income of the deceased for loss of future prospects which in our considered view is a correct assessment as the deceased was earning regular income through his shop.
16. The deceased being a bachelor, the Tribunal has rightly deducted 50% towards personal expenses and has also rightly applied 17 multiplier as the age of the deceased was 30 years at the time of the accident. We do not find any infirmity in the same.
17. Insofar as the compensation awarded under various other heads are concerned, we also do not find any infirmity in the same and therefore, the same does not call for any interference.
18. Since the third and fourth respondents are the brother and sister of the deceased, they are not entitled to any compensation as awarded by the Tribunal. Further, no evidence was also produced by the third and fourth respondents to show that they are dependents of the deceased, despite their parents being alive. 8/10 http://www.judis.nic.in C.M.A.No.1298 of 2019 and C.M.P.No.3591 of 2019 Conclusion:
19. For the foregoing reasons, the Appeal is partly allowed and the Appellant is directed to deposit a sum Rs.20,52,450/- along with interest and costs after deducting the amount, if any already deposited, to the credit of MCOP.No.893 of 2016 within a period of four weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the Tribunal is directed to transfer the amount lying to the credit of MCOP.No.893 of 2016 to the first and second respondents equally through RTGS within a period of four weeks thereafter. No costs. Consequently, connected miscellaneous petition is closed.
[K.K.SASIDHARAN, J.] [ABDUL QUDDHOSE, J.] 16 SEPTEMBER 2019 nl Index:Yes/No Internet:Yes/No Speaking/Non-speaking orders 9/10 http://www.judis.nic.in C.M.A.No.1298 of 2019 and C.M.P.No.3591 of 2019 K.K.SASIDHARAN, J.
AND ABDUL QUDDHOSE, J.
nl To
1.The Special District Court, Motor Accident Claims Tribunal, Salem.
2.The Section Officer, VR Section, High Court, Chennai.
C.M.A.No.1298 of 2019
16.09.2019 10/10 http://www.judis.nic.in