Madras High Court
Vasantha vs P.Balaraman on 28 August, 2018
Bench: Pushpa Sathyanarayana, T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 28.08.2018
Date of Reservation
09.08.2018
Date of Judgment
28.08.2018
CORAM
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
C.M.A(MD)No.160 of 2009
and
Cross Objection (MD)No.32 of 2010
C.M.A(MD)No.160 of 2009:-
1.Vasantha
2.Minor Sivarnjani
3.Minor Arunpandian
(Minors represented through
their mother and guardian
1st appellant)
4.Rajamani
5.Sivanandi Thevar : Appellants/Claimants
Vs.
1.P.Balaraman
2.United India Insurance Company Limited,
through its Divisional Manager,
7A, West Veli Street,
Madurai. :
Respondents/Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988 against the award of the tribunal passed in MCOP No.838 of
2006 by the Motor Accident Claims Tribunal (1st Additional District Judge),
Madurai, dated 21.04.2008.
For Appellants : Mr.A.Liaket Ali
For 1st Respondent : No appearance
For 2nd Respondent : Mr.G.Prabhu Rajadurai
2.Cross Objection (MD)No.32 of 2010:-
The United India Insurance Company Limited,
through its Divisional Manager,
7A, West Veli Street, Madurai. : Cross Objector/2nd respondent
Vs.
1.Vasantha
2.Minor Sivaranjani
3.Minor Arun Pandian
(Minors represented through their
mother and guardian Vasantha)
4.Rajamani
5.Sivanandi Thevar : R1 to R5/Claimants
6.P.Balaraman : 6th respondent/1st
respondent
Prayer : Cross Objection filed under Order XLI Rule 22 of Code of Civil
Procedure to enhance the award, dated 21.04.2008 passed in MCOP No.838 of
2006 on the file of the Motor Accident Claims Tribunal (1st Additional
District Judge), Madurai.
For Cross Objector : Mr.G.Prabhu Rajadurai
For R1 to 5 : Mr.A.Liaket Ali
For 6th Respondent : No appearance
:COMMON JUDGMENT
[Judgment of the Court was delivered by T.KRISHNAVALLI, J] Dissatisfied with the award of the tribunal made in MCOP No.838 of 2016, dated 21.04.2008 on the file of the Motor Accident Claims Tribunal (1st Additional District Judge), Madurai, the claimants have preferred this appeal, whereas aggrieved by the award of the tribunal, the United India Insurance Company has filed Cross Objection.
2.The brief facts of the case are that on 21.10.2005 at about 8.15 pm, while the deceased was riding his motor cycle bearing registration No.TN-57- J-3902 along with his sister Mangaleswari and her son Balamurugan on Gandhigramam-Madurai Road near Paravai Velmurugan Petrol Bunk, it dashed against the lorry bearing registration No.TN-39-V-3606, which was parked on the road without putting any indicator. In that process, the deceased and others were thrown away and the deceased died on the spot, while two others sustained injury and they were taken to Vadamalayam Hospital for treatment. In this regard, the Inspector of Police attached to Samayanallur Police Station had registered a case in Crime No.476 of 2005 under Sections 279, 337 and 304(A) IPC. The wife, daughter, son and parents of the deceased filed a claim petition claiming compensation of Rs.36,09,500/- .
3.Before the tribunal, on the side of the claimants, 4 witnesses were examined as PW1 to PW4 and marked 29 documents. On the side of the Insurance Company, two witnesses were examined as RW1 and RW2 and 2 documents were marked.
4.The Tribunal, on consideration of oral and documentary evidence adduced by the parties, came to the conclusion that the both the driver of the lorry and the deceased, who was riding the two wheeler, are contributory negligent for the accident and awarded compensation of Rs.13,94,800/-. Challenging the award, both the claimants and Insurance Company are before this court.
5.The learned counsel for the claimants submitted that the tribunal erred in awarding lesser quantum of compensation to the claimants and failed to award a fair compensation. The tribunal ought to have adopted higher multiplier and erred in not taking into account the future monetary benefits and erred in arriving at the lesser monthly income for the deceased and committed a grave error in halving it because of contributory negligence and the award of the tribunal under the conventional heads are also on the lower side, hence, the award of the tribunal has to be enhanced. It is further submitted that to prove the contributory negligence, there must be cogent evidence and in the absence of any cogent evidence to prove the plea of contributory negligence, the doctrine of common law cannot be applied to the case on hand. For that, the learned counsel has relied upon the following rulings:-
1.2018(1) TN MAC 544(SC) (Archit Saini and another Vs. Oriental Insurance Company Limited and others); and
2.CDJ 2014 SC 192 (Meera Devi and another Vs. H.R.T.C and others)
6.On the other hand, the learned counsel appearing for the Insurance Company submitted that the accident took place due to the sole negligence of the deceased himself and the claimants have suppressed the best evidence on their side by not examining the sister of the deceased though she was the 1st informant and an eye witness to the accident and the accident took place on the highway and had the deceased exercised little caution, the accident could have been averted and the tribunal had erred in fixing the monthly income of Rs.23,130/- without considering the statutory deductions and other deductions towards personal expenditure and income tax. The tribunal had erred in applying the multiplier of 15, particularly when the age of the deceased was 42 years at the time of the accident and hence, the award of the tribunal has to be reduced. It is further submitted that the tribunal having found both the lorry driver and the deceased equally negligent, contributory negligence to an extent of 50% attributed on part of the deceased. In support of his contention, the learned counsel appearing for the Insurance Company has relied upon the following rulings:-
1.2009(1) TN MAC 638(SC) (Raj Rani and others vs. Oriental Insurance Company Limited and others);
2.2013(1) TN MAC 631 (DB) (New India Assurance Company Limited vs. L.Agnes and others);
3.2017(1) TN MAC 5 (DB) (S.Manjula Devi vs, Brijpal Singh)
7.Heard both sides and perused the materials available on record.
8.In this case, the offending vehicle was parked on the left side of the road. It is stated on the side of the Insurance Company that the offending vehicle was parked with proper signal and only due to the negligence on the part of the rider of the two wheeler (deceased), the accident took place, hence, they are not liable to pay compensation to the claimants.
9.Per contra, on the side of the claimants, Rules 15 and 22 of the Motor Vehicles Act were relied on. Sections 15 and 22 of the Rules of Road Regulations, 1989 reads as follows:-
15.Parking of the vehicle.-(1)Every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and if the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner.
(2)A driver of a motor vehicle shall not park his vehicle-
(i)at or near a road crossing, a bend, top of a hill or a humpbacked bridge;
(ii)on a foot-path;
(iii)near a traffic light or pedestrian crossing;
(iv)in a main road or one carrying fast traffic;
(v)opposite another parked vehicle or as obstruction to other vehicle;
(vi)alongside another parked vehicle;
(vii)on roads or at places or roads where there is a continuous white line with or without a broken line;
(viii)near a bus stop, school or hospital entrance or blocking a traffic sign or entrance to a premises or a fire hydrant;
(ix)on the wrong side of the road;
(x)where parking in prohibited;
(xi)away from the edge of the footpath.
22.Traffic sign and Traffic Police:-A driver of a motor vehicle and every other person using the road shall obey:-
(a)every direction given, whether by signal or otherwise, by a police officer or any authorised person for the time being in-charge of the regulation of traffic;
(b)any direction applicable to him and indicated on or by notice traffic sign or signal fixed or operated by automatic signalling devices fixed at road intersections.
10.In this case, the rough sketch was perused. On perusal of the rough sketch, it is seen that the offending vehicle was parked on the left side of the road and it was not parked straight. It was parked diagonally. Hence, it is possible to see the signal of the offending vehicle. But PW2 during her cross examination stated that at the time of accident, no vehicle came from the opposite direction. Therefore, there is no possibility of dazzling light from the opposite direction.
11.Further, it is to be noted that the deceased vehicle is a two wheeler and in the two wheeler, three persons had travelled. The two wheeler is designed to travel by two persons. There was no vehicle coming from the opposite side. Hence, it is possible for the rider of the two wheeler to see the parking of the vehicle through light of his vehicle, since it was night time.
12.Further, on the side of the Insurance Company to prove that the offending vehicle was parked with proper signal, the driver of the offending vehicle was not examined. However, contended that a duty is cast upon the rider of the two wheeler to see through the light of his vehicle, whether any vehicle is parked or not and it was not done by the rider of the two wheeler. As per Section 15 of the Rules of the Road Regulations, 1989, a vehicle should be parked with proper signal in order to avoid accident. In the absence of any evidence that the offending vehicle was parked with the parking lamps on and on the left side of the road, the contention of the Insurance Company has to be rejected. Hence, it is held that the driver of the offending vehicle parked the vehicle without proper signal in violation of the Road Regulations.
13.On perusal of the ruling reported in 2017(1) TN MAC 5 (DB) (S.Manjula Devi vs. Brijpal Singh), submitted by the learned counsel for the Insurance Company, the offending vehicle was parked near centre median of road without parking lighting/indicator and it is possible for the deceased to see the vehicle. Hence, in that case, the negligence was fixed at 50:50. But in the case on hand, the offending vehicle was parked on the left side of the road diagonally. Hence, it is not possible for the deceased to see the vehicle at once. In the light of the above facts, this court is of the considered view that negligence is fixed at 20% on the deceased and 80% on the driver of the parking lorry in modification of the finding of the tribunal in this regard.
14.As regards quantum, it is not in dispute that the deceased was working as 'Reader' in Gandhi Gramam University and his monthly salary was Rs.23,130/-, which is evident from PW3 and Exs.P7 to P9. It is also not in dispute that the deceased died at the age of 42 years.
15.It is seen from the records that on the side of the claimants, a calculation memo has been filed calculating the quantum of compensation, for which the Insurance Company has no objection to work out the quantum of compensation as per the calculation memo filed by the claimants side. Hence, this court is inclined to work out the income of the deceased as per the calculation filed by the claimants side. Therefore, this court has fixed the income of the deceased at Rs.23,130/- and after deducting Rs.4,578/- towards income tax and professional tax, the monthly income of the deceased is arrived at Rs.19,152/-. By adding 30% towards future prospects, calculated the total income at Rs.24,897/- (Rs.19,152/- + Rs.5,745/-) and after deducting 1/4th towards personal and living expenses, the loss of contribution to the family was taken as Rs.18,673/-. By applying multiplier 14, the tribunal has calculated the annual loss of income to the family of the deceased at Rs.31,37,064/- (Rs.18,673/- x 12 x 14).
16.As per the decision of the the Hon'ble Supreme Court in the case of Pranay Sethi, wife is entitled to Rs.40,000/- towards loss of consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards transportation and funeral expenses. In total, the claimants are entitled for compensation of Rs.32,07,064/- along with interest @ 7.5% p.a.
17.With regard to contributory negligence, it is pertinent to mention here that already this court has fixed the negligence on the part of the driver of the lorry @ 80% and 20% on the part of the deceased. Hence, the claimants would be entitled to Rs.25,65,651/- together with interest @ 7.5% p.a.
18.The United India Insurance Company is directed to deposit the modified award amount of Rs.25,65,651/- along with accrued interest and costs within a period of six weeks from the date of receipt of a copy of this Judgement. Out of the compensation amount, the first claimant being the wife of the deceased is entitled to Rs.8,65,651/-, the minor claimants 2 and 3 are each entitled to Rs.7,00,000/- and the claimants 4 and 5 are each entitled to Rs.1,50,000/- together with accrued interest and costs from the date of petition till the date of realization. It is represented on the side of the claimants that the claimants 2 and 3 now attained majority. Hence, all the claimants are permitted to withdraw their respective share as per the apportionment of this court.
19.With the above modification, the Civil Miscellaneous Appeal and the Cross Objection are disposed of. No costs.
To, The 1st Additional District Judge, Motor Accident Claims Tribunal, Madurai.
Copy to: The Record Keeper, V.R. Section, Maadurai Bench of Madras High Court, Madurai.
.