Madras High Court
The Oriental Insurance Co. Ltd vs V.Bhuvaneswari on 16 November, 2018
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan, N.Seshasayee
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2018
CORAM:
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
C.M.A.No.2570 of 2018 and
C.M.P.No.19518 of 2018
The Oriental Insurance Co. Ltd.,
Balaji Towers, 1st Floor, No.1,
Abdul Razak Street, Saidapet,
Chennai – 600 015. ... Appellant / Respondent-2
..Vs..
1.V.Bhuvaneswari
2.Minor V.Sairam
3.K.Kalyani
4.S.Kasi (Minor represented by the
first petitioner mother and next friend)
5.M.Pandian ... Respondents/Petitioners 1 to 4 &
Respondent-1
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the judgment and decree dated 20.01.2016
passed in M.C.O.P.No.1578 of 2010 on the file of the Motor Accident Claims
Tribunal, (Special Sub Judge No.I to deal with MCOP Cases) at Chennai.
For Appellant : M/s.J.Chandran
For Respondents : Mr.Kalaiarasan for R1 to R4
JUDGMENT
(Judgment of the Court was delivered by M.SATHYANARAYANAN, J.) The second respondent in M.C.O.P.No.1578 of 2010 on the file of the Motor Accidents Claims Tribunal (Special Sub Judge No.I to deal with MCOP Cases), is the appellant.
http://www.judis.nic.in 2. The respondents 1 to 4 had filed the abovesaid motor accidents original petition, claiming a compensation of Rs.22,00,000/- on account of the 2 death of the husband of the first respondent viz., K.Venkatesh Kumar, in a tragic accident, which took place at about 18:50 hours on 20.04.2010. It is the case of the claimants that the deceased was riding a motor cycle bearing registration No.TN07-AQ-8011 from Thiruvanmiyur to Thiruporur on the Rajiv Gandhi Salai, North to South direction near Fruit Garden Signal, Semmanchery, dashed against a van bearing registration No.TN07-AY-7881, which was parked in the main road abetting 2nd and 3rd lanes, without any indicator lights and died instantaneously on account of the fatal injuries sustained by him.
3. The second respondent / appellant herein has filed a counter statement, denying the manner of the accident and all particulars, and denied the fact that the van was insured with them and the driver was holding valid license. During the course of trial, the first respondent examined herself as P.W.1, a staff of IMPCOPS, in which the deceased was employed was examined as P.W.2, and one Mr.Anand, who was the eye witness was examined as P.W.3. Exhibits P1 to 14 were marked. On behalf of the appellant / second respondent, the legal assistant was examined as R.W.1. The authorisation letter from the insurance company was marked as Ex.R1 and the report of ABC Detective Force was marked as Ex.R2. The tribunal, on a consideration of the averments made in the claim petition and the counter statement, and on appreciation of the oral and documentary evidence, has awarded the compensation, the details of which are as follows. http://www.judis.nic.in 3
1. Loss of financial dependency to the family Rs.18,26,208/-
2. Consortium to the first petitioner Rs. 1,00,000/-
3. Loss of love and affection (for 2nd petitioner) Rs. 1,00,000/-
4. Loss of love and affection (for 3rd and 4th petitioners) (Each Rs.50,000/-) Rs. 1,00,000/-
5. Funeral and Ritual Expenses Rs. 15,000/-
6. Loss of Estate Rs. 10,000/-
TOTAL Rs. 21,51,208/-
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4. The insurance company / appellant, challenging the award of compensation, both on negligence and quantum, had filed this appeal.
5. Mr.J.Chandran, learned counsel for the appellant / insurance company made the following submissions.
a) The petition was filed quoting the wrong provision of law under Section 166 of the Motor Vehicles Act.
b) The contents of the FIR did not disclose any negligence on the part of the alleged parked van.
c) In any event, the occurrence took place at about 18:50 hours, during the summer month of April and therefore the parked vehicle would have been very much visible to the rider and since he has travelled in a rash and negligent manner, the accident had occurred. In any event, the tribunal has reduced the compensation on account of the contributory negligence on http://www.judis.nic.in the part of the rider and, prays for interference from this Court. 4
6. Per contra, Mr.Kalaiarasan, learned counsel for the respondents 1 to 4 would submit that the tribunal, on a consideration of the oral and documentary evidence, and by applying the agreed legal principle, has rightly awarded just and fair compensation and, further pointed out that though the accident took place as early as on 20.04.2010, the claimants are yet to receive the full compensation and as a consequence, they are suffering very much, and prays for dismissal of the appeal.
7. This court has carefully considered the rival submissions and also perused the materials placed before this Court in the form of typed set of papers.
8. The question that arises for consideration is as to whether the rider / deceased has contributed to the accident and that the quantum of compensation awarded by the tribunal is excessive and warrants reduction.
9. It is not in dispute about the manner of the accident and the primordial submission made by the learned counel for the appellant is that the wrong provision of law has been invoked and as such, the tribunal ought to have returned the appeal and had awarded the compensation by invoking Section 163A of the Motor Vehicles Act.
10. In the considered view of this Court, the submission made by the learned counsel for the appellant is liable to be rejected. The Motor http://www.judis.nic.in Vehicles Act is a benevolent legislation and mere applying wrong provision of 5 law will not per se reject the claim petition and this Court can mould the record by applying the correct provision of law and the submission made by the learned counsel for the appellant is liable to be rejected.
11. Coming to the question of contributory negligence, there is no material to show that the parked van was having blinking / burning warning lights and admittedly, the accident took place on the late evening hours of 20.04.2010, and therefore, it cannot be said that the deceased has also contributed to the accident as a result of his negligence.
12. Now coming to the quantum, at the time of his demise, the deceased was aged about 27 years and as per Ex.P2, copy of the driving license he was aged about 28 years as his date of birth was 09.04.1982 and therefore the tribunal has fixed the age at 28 years and applied the multiplier
17. The deceased was employed at the time of accident as unskilled worker in the service of IMPCOPS and prove the receipt of monthly salary, P.W.2 was examined and the employee ID cards were marked as Ex.P7 and Ex.P8. The income particulars were marked as Ex.P.11, copy of the service register was marked as Ex.P13 and the salary account was marked as Ex.P14. The tribunal, on a perusal of the documentary evidence, has reached the conclusion that the evidence would disclose that the last drawn salary was Rs.11,936/- and in the absence of contra evidence, it has accepted the said monthly income.
http://www.judis.nic.in 6
13. The tribunal has also applied the ratio laid down by the Apex Court in the judgment Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and Another (2009) 6 SCC 121, and concluded that 1/4th of the income of the deceased would be deducted towards his personal and living expenses and therefore the monthly contribution to the family by the deceased would be Rs.8,952/- and taking the same into account, the annual contribution was fixed at Rs.1,07,424/-. The first respondent / wife of the deceased was aged about 23 years and she had a minor son out of the wed- lock, aged about 8 months. The parents of the deceased were aged 63 years and 67 years respectively. Taking into consideration of the fact that the first respondent has become young widow and she has to bring up her minor son, the tribunal has rightly awarded a sum of Rs.1,00,000/- towards loss of consortium in favour of the first respondent, insofar as the minor is concerned, awarded a sum of Rs.1,00,000/- towards loss of love and affection, and Rs.50,000/- each to the parents of the deceased. For funeral and ritual expenses, a sum of Rs.15,000/- was awarded and for loss of estate a sum of Rs.10,000/- was awarded. The tribunal has arrived at the total compensation at Rs.21,51,208/- and interest at the rate of 7.5% per annum from the date of filing of the claim petition till the date of realisation payable by the appellant herein. In the considered opinion of this court, the tribunal, on a thorough consideration and proper appreciation of the materials including oral and documentary evidence, has rightly awarded just and fair compensation and this court, on independent application of mind, is of the considered view that there is no error or infirmity or jurisdictional error in awarding the http://www.judis.nic.in compensation and finds no merits in this appeal. 7
15. In result, the appeal is dismissed and the judgment and decree dated 20.01.2016 passed in M.C.O.P.No.1578 of 2010 on the file of the Motor Accident Claims Tribunal, (Special Sub Judge No.I to deal with MCOP Cases) at Chennai, is confirmed. No costs. Consequently, connected miscellaneous petition is closed.
(M.S.N.J.) (N.S.S.J.) 16-11-2018 Index : Yes / No Internet : Yes / No KST / GBI To
1. Special Sub Judge No.I Motor Accidents Claims Tribunal Special Sub Court I, Small Causes Court Chennai.
2. The Section Officer, V.R.Section, High Court, Madras.
http://www.judis.nic.in 8 M.SATHYANARAYANAN, J.
and N.SESHASAYEE, J.
C.M.A.No.2570 of 2018
and C.M.P.No.19518 of 2018 16.11.2018 http://www.judis.nic.in