Madras High Court
Iffco-Tokio General Insurance Company ... vs Muthurathinam on 22 March, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
CMA(MD)No.978 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.03.2024
CORAM :
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
and
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CMA(MD)No.978 of 2021
and
CMP(MD)Nos.9250 of 2021 and 1936 of 2022
Iffco-Tokio General Insurance Company Ltd.,
Through its Branch Manager,
No.5, College Road, 2nd Cross Street,
Tirupur. ... Appellant
vs.
1. Muthurathinam
2. Minor Rajtharsini
3. Minor Kavin Karthik
[Minor respondents 2 and 3 are represented through
their mother, next guardian, 1st respondent herein]
4. Premavathi
Subbiah [Died]
5. Petchiammal ... Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the award and decree dated 24.02.2021 passed in MCOP.No.380
of 2017 on the file of the Motor Accidents Claims Tribunal/I Additional
District Judge, Tirunelveli.
https://www.mhc.tn.gov.in/judis
Page No.1 of 14
CMA(MD)No.978 of 2021
For Appellant : Mr.V.Sakthivel
For R1 to R3 : Mr.T.Selvakumaran
For R5 : Mr.M.Sathiamoorthy
For R4 : No appearance
JUDGMENT
(Judgment of the Court was made by K.K.RAMAKRISHNAN, J.) This appeal has been filed by the insurance company challenging the award passed by the Motor Accident Claims Tribunal, I Additional District Judge, Tirunelveli, in M.C.O.P.No.380 of 2017, dated 24.02.2021, on the ground of fixing 100% negligence upon the appellant who insured container lorry and quantum of compensation awarded Rs.1,60,65,000/- towards the loss of income of the deceased.
2.Facts of the case:
The respondents 1 to 3 filed the claim petition in M.C.O.P.No.380 of 2017, claiming a sum of Rs.9,00,00,000/- as compensation for the death of Gandhimathinathan in the accident caused by the container lorry bearing registration No.TN-74-AB-6934 on 10.04.2016 belonged to the fourth respondent and insured by the appellant insurance company. https://www.mhc.tn.gov.in/judis Page No.2 of 14 CMA(MD)No.978 of 2021
3. According to the respondents/claimants, on 10.04.2016, about 06.15 a.m., while the deceased was travelling in a Innova Car bearing registration No.TN-09-BD-6066 from Chennai to Kulasekarapattinam, to attend a function, near the Sevalpatti Vilakku, Tuticorin-Madurai National Highways Road, the driver of the Container Lorry bearing registration No.TN-74-AB-6934 which was proceeding ahead of the Innova Car in a rash and negligent manner, applied brake suddenly without any signal or having caution lamp and Innova Car rammed the rear side of the Container Lorry and hence, the Innova car was completely damaged and in the result, the deceased sustained fatal injuries and died on the spot. Therefore, a case in Crime No.105/2016 under Sections 279, 337 and 304(A) of IPC on the file of Kariyapatti Police Station, was registered against the driver of the Container Lorry. Thereafter, the respondents/claimants filed the claim petition claiming compensation.
4. The appellant filed the counter statement and denied all the averments made in the claim petition and contended that the accident did not occur due to the rash and negligent driving of the driver of the Lorry https://www.mhc.tn.gov.in/judis Page No.3 of 14 CMA(MD)No.978 of 2021 and Innova car without following the traffic rules and maintaining sufficient distance came in the rash manner behind the lorry and dashed against the Container Lorry. Therefore, the accident happened only due to the negligence of the driver of the Innova Car and prayed for dismissal of the claim petition.
5. Before the Tribunal, the wife of the deceased examined herself as P.W.1 and two other witnesses were examined as P.W.2 and P.W.3 and 19 documents were marked as Ex.P1 to P.19. The driver of the Container Lorry was examined as R.W.1 and no document was marked on the side of the appellant. Apart from the above, Exs.X1 and X2 were also marked.
6. Finding of the Tribunal:
The Tribunal, considering the pleadings, oral and documentary evidence and arguments of the counsel for the appellant and claimants, held that the accident occurred only due to the rash and negligent driving by the driver of the Container Lorry and directed the appellant to pay a sum of Rs.1,62,45,000/- as compensation and the details are as follows:
https://www.mhc.tn.gov.in/judis Page No.4 of 14 CMA(MD)No.978 of 2021 S.No. Heads Amount in Rupees 1 Loss of Income 1,60,65,000/- 2 Loss of consortium 1,60,000/- 3 Funeral expenses 15,000/- 4 Transport expenses 5,000/-
Total 1,62,45,000/-
Aggrieved over the same, the appellant filed this appeal questioning the negligence and quantum of compensation awarded by the Tribunal.
7.Submission of the learned counsel for the appellant:
The learned counsel for the appellant submitted that without considering the evidence of RW1 and Ex.P3-rough sketch in proper perspective, the Tribunal fixed the entire negligence on the driver of the Container Lorry which is contrary to the available records coupled with the evidence of RW1. He further submitted that as per Rule 23 of the Rules of Road Regulations, 1989, the Innova Car must have maintained proper distance in order to avoid possible collision between the vehicles and as per the judgment of the Hon'ble Supreme Court reported in 2018 [1] TNMAC 745 [SC], Nishan singh and others vs. Oriental Insurance Company Limited and others, the Tribunal ought to have fixed the entire negligence on the driver of the Innova Car. Sofaras the https://www.mhc.tn.gov.in/judis Page No.5 of 14 CMA(MD)No.978 of 2021 quantum of compensation is concerned, learned counsel submitted that when the claimants themselves in their claim petition have pleaded the age of the deceased as 35 years, the Tribunal has erroneously fixed the age of the deceased as 30 years as per Ex.P2-postmortem certificate. In the said circumstances, the Tribunal ought to have adopted 16 multiplier by fixing the age of the deceased as 35 as per the claim petition. Hence, he seeks reduction on the quantum.
8. Submission of the learned counsel for the respondents 1 to 3:
The learned counsel for the respondents/claimants submitted that the FIR and the final report filed by the investigating officer is not in consonance with the submission made by the insurance company and the entire negligence is due to the sudden brake applied by the Container Lorry. Hence, the Tribunal correctly fixed the negligence upon the driver of the Container Lorry. He further submitted that as per Ex.P2- postmortem certificate, the age of the deceased was rightly taken into consideration by the Tribunal and hence, is no interference is required in the award passed by the Tribunal.
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9. This Court considered the rival submissions and also perused the records.
10. The following points arise for consideration of this appeal:
10.1.Whether the entire negligence is rightly fixed on the appellant insurance company's container lorry?
10.2.Whether the compensation granted is in accordance with law?
Discussion on negligence:
11. From the above narration of the facts, it is clear that the appellant's insured container lorry bearing registration No.TN-74- AB-6934 proceeded ahead of the Innova Car in Tuticorin-Madurai National four ways Highway road. While the said container lorry was proceeding ahead of the Innova car near K.Sevalpatti Vilakku applied sudden brake and the driver of the Innova car rammed the rear portion of the said container lorry and hence, the Innova car caught inside the lorry and therefore, the deceased sustained injury and died on the spot. R.W. 1/driver of the lorry deposed that when he was proceeding in the Tuticorin -Madurai National four ways Highway Road, near Sevalpatti Vilakku, he heard the noise and found that the Innova car dashed the rear https://www.mhc.tn.gov.in/judis Page No.7 of 14 CMA(MD)No.978 of 2021 side of his lorry. Therefore, he stopped the lorry. P.W.3 deposed that the Innova Car came in 80 Kms, speed and near the occurrence place, the lorry driver suddenly applied the brake without any signal and hence the Innova car dashed the rear side of the container lorry. From the above evidence of P.W.3 and R.W.1, it is clear that the driver of the Innova car would not have maintained sufficient distance from the on going container lorry. The following Regulation 23 of the Rules of the Road Regulations, 1989 mandate to keep the sufficient distance from the proceeding vehicle:-
''23. Distance from vehicles in front:- The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.''
12. The expression 'sufficient distance' explained by the Apex Court in Nishan Singh's case (supra) is as follows:-
''The expression 'sufficient distance' has not been defined in the Regulations or elsewhere. The thumb rule of sufficient distance is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond.'' https://www.mhc.tn.gov.in/judis Page No.8 of 14 CMA(MD)No.978 of 2021
13. Therefore, in this case, the contention of the learned counsel for the appellant that the fact that if the driver of the Innova Car had driven the same cautiously by maintaining sufficient distance, the accident could have been averted, cannot be ignored. Considering the same, the driver of the Innova car has to some extent, be held liable for his contributory negligence for the cause of accident. The learned tribunal Judge has not taken note of this important fact, while deciding the negligence and erroneously fixed the entire negligence on the part of the appellant's insured container lorry. On the assessment of the evidence of P.W.3, R.W.1 and Ex.P3(Sketch) this Court is inclined to fix the contributory negligence on the part of the driver of the Innova car at 20% while fixing the same at 80% as against the driver of the appellant's insured container lorry. Accordingly, the finding of the Tribunal is modified and the negligence is apportioned in the ratio of 20 : 80 as between the deceased and the driver of the Container Lorry.
14. Discussion on quantum
(i) It is the case of the claimants that the deceased was running a firm in the name and style of ''S.R.Agency'' dealing with cements, iron, https://www.mhc.tn.gov.in/judis Page No.9 of 14 CMA(MD)No.978 of 2021 crusher stone and was earning Rs.4,50,000/- per month. Ex.P7 is the registration certificate of Tvl.S.R.Agency and Exs.P8 to P10 are the income tax returns of the deceased for the years 2013-2014, 2014-2015 and 2015-2016 respectively. The Tribunal considering the evidence of PW2-Inspector of Income Tax and based on the income tax returns, vide Ex.X1, fixed the monthly income of the deceased as Rs.75,000/-. This Court finds no perversity in the said finding. But, this Court is unable to accept the finding of the learned tribunal Judge that the deceased was aged about 30 years for the reason that when the claimant pleaded the age of the deceased as 35 years and in Ex.P.11 (legal heirs certificate) also stated that the age of the deceased is 35. Therefore, this Court is inclined to apply the multiplier of 16 instead of 17 applied by the learned tribunal Judge and calculated the loss of income of Rs.1,51,20,000/- as under:
75,000 X 40/100 = 30,000/-
1,05,000/- X ¾ X 12 X 16 = 1,51,20,000/-
Except the above, the award under other heads are not seriously disputed. Hence the same are confirmed.
https://www.mhc.tn.gov.in/judis Page No.10 of 14 CMA(MD)No.978 of 2021
15. Conclusion
(i) In the light of the above said discussion, claimants would be entitled to claim the following amounts as compensation under the various heads enumerated hereunder:
Sl.
Compensation Amount in Rupees
No
1 Loss of Income Rs.1,51,20,000/-
2 Loss of consortium 40,000/-
3 Loss of Love and affection 1,20,000/-
3 X 40000
4 Transport expenses 5,000/-
5 Funeral Expenses 15,000/-
Total 1,53,00,000/-
(ii) In view of the fixation of negligence namely, 20 : 80 as between the deceased and RW1, after deducting the amount towards 20% liability of the deceased, the award amount payable by the appellant towards their 80% liability is computed at Rs.1,22,40,000/-. The respondent Nos.1, 2, 3 and 5 are entitled to modified compensation of Rs.
1,22,40,000/- in the following ratio of apportionment:
Sl. Rank of the Relationship of the Entitled amount Nos. claimants deceased 1 Muthurathinam/ Wife of the deceased Rs.61,20,000/-
respondent No.1 2 Minor Rajtharsini/ Daughter of the Rs.24,48,000/-
respondent No.2 deceased https://www.mhc.tn.gov.in/judis Page No.11 of 14 CMA(MD)No.978 of 2021 3 Minor Kavin Son of the deceased Rs.24,48,000/- Karthik/ respondent No.3 4 Petchiammal/ Mother of the Rs.12,24,000/- respondent No.5 deceased
(iii) The appellant insurance company is directed to deposit the modified award amount of Rs.1,22,40,000/- towards 80% liability, with 7.5% interest per annum from the date of claim petition till the date of realisation along with costs, and can deduct the amount if already deposited, within a period of eight weeks from the date of receipt of a copy of this judgment. Accordingly, the award amount of Rs.1,62,45,000/- granted in MCOP.No.380 of 2017, dated 24.02.2021, on the file of the Motor Accidents Claims Tribunal/I Additional District Court, Tirunelveli, is hereby reduced to Rs.1,53,00,000/-.
(iv) On such deposit, the respondents 1 and 5 are permitted to wi thdraw their respective shares with respective proportionate accured interest and costs. The shares of the respondents 2 and 3/minor claimants shall be deposited in a Nationalised Bank in a Fixed Deposit, renewable periodically, till they attain majority. The interest accruing on such minors' share is permitted to be withdrawn by the 1st respondent/mother of minors once in three months directly from the Bank. https://www.mhc.tn.gov.in/judis Page No.12 of 14 CMA(MD)No.978 of 2021
16. Accordingly, this Civil Miscellaneous Appeal is partly allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petitions are closed.
(V.B.S., J.) (K.K.R.K., J.)
Index : Yes / No 22.03.2024
Neutral Citation : Yes / No
bala
https://www.mhc.tn.gov.in/judis
Page No.13 of 14
CMA(MD)No.978 of 2021
V.BHAVANI SUBBAROYAN, J.
and
K.K.RAMAKRISHNAN, J.
bala
To
1. The Judge,
I Additional District Judge,
Motor Accident Claims Tribunal,
Tirunelveli.
2. The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
JUDGMENT MADE IN
CMA(MD)No.978 of 2021
DATED : 22.03.2024
https://www.mhc.tn.gov.in/judis
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