Madras High Court
Iffco Tokio General Insurance Company ... vs Muthukumar on 18 February, 2022
Author: R.Subramanian
Bench: R.Subramanian
C.M.A(MD)Nos.142 of 2022 & 793 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A(MD)Nos.142 of 2022 & 793 of 2021
C.M.A(MD)No.142 of 2022:
Iffco Tokio General Insurance Company Ltd.,
Through its Branch Manager
No.5/132C, Sundaram Street,
Indusind Bank Upstairs,
Opposite to New Bus Stand,
Avinashi - 641 654. ... Appellant
Vs.
1.Muthukumar
2.Sakthikani
3.Balumadhan
4.K.Shanmugasundaram
5.The Oriental Insurance Company Limited,
Through its Branch Manager,
No.6A, Great Cotton Road,
Tuticorin – 628 001. ... Respondents
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C.M.A(MD)Nos.142 of 2022 & 793 of 2021
C.M.A(MD)No.793 of 2021:
1.Muthukumar
2.Sakthikani ... Appellants
Vs.
1.Balumadhan
2.Iffco Tokio General Insurance Company Ltd.,
Through its Branch Manager
No.5/132C, Sundaram Street,
Indusind Bank Upstairs,
Opposite to New Bus Stand,
Avinashi - 641 654.
4.K.Shanmuga Sundaram
5.The Oriental Insurance Company Limited,
Through its Branch Manager,
No.6A, Great Cotton Road,
Tuticorin – 628 001. ... Respondents
COMMON PRAYER: These Civil Miscellaneous Appeals filed under
Section 173 of the Motor Vehicles Act praying this Court to set aside the
judgment and decree made in M.C.O.P.No.358 of 2017, dated
17.04.2021, on the file of the Principal District Court, Motor Accidents
Claims Tribunal, Tirunelveli.
For Appellant in C.M.A.(MD) No.142 of 2022 & Mr.V.Sakthivel
2nd respondent in C.M.A.(MD) No.793 of 2021
For Appellants in C.M.A.(MD) No.793 of 2021 & Mr.G.Prabhu
respondents 1 & 2 in C.M.A.(MD) No.142 of 2022 Rajadurai
For 4th respondent in C.M.A.(MD) No.793 of 2021 Mr.C.Karthik
& 5th respondent in C.M.A.(MD) No.142 of 2022
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C.M.A(MD)Nos.142 of 2022 & 793 of 2021
COMMON JUDGMENT
[Judgment of the Court was delivered by R.SUBRAMANIAN, J.] These two Civil Miscellaneous Appeals arise out of M.C.O.P.No.358 of 2017, a claim petition lodged by the respondents 1 and 2 herein seeking compensation for the death of their 19 year old son Andi Shanmugavel, who was the student of Engineering.
2. According to the petitioners, the deceased Andi Shanmugavel was travelling as a pillion rider in a two-wheeler bearing Registration No.TN-59-BB-5355, which was driven by his friend and as they were about to enter the college, which was on the right side of the four lane Highway, Madurai - Aruppukottai road, the car bearing Registration No.TN-39-AT-6565 which came in the opposite direction driven by its driver in a rash and negligent manner, dashed against the two wheeler, as a result of which, the deceased Andi Shanmugam was thrown off the bike, suffered head injury and died on the spot.
3. The car was insured with the appellant in C.M.A(MD) No.142 of 2022. As the insurer of the car, the claim was made against the 3/15 https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.142 of 2022 & 793 of 2021 appellant in C.M.A.(MD) No.142 of 2022. The owner of the two-wheeler and insurer of the two-wheeler were also made parties as respondents 4 and 5/respondents 3 and 4. The driver cum owner of the car was the third respondent / first respondent.
4. The insurer of the car, namely, the second respondent resisted the claim contending that the accident did not occur in the manner suggested by the claimants. It was contended that the negligence on the part of the rider of the two-wheeler, caused the accident. According to the second respondent - insurance company, the two- wheeler took a sudden turn to enter the College in a four lane road and hit the car.
5. The insurer of the two-wheeler, namely, the fourth respondent before the Tribunal would contend that it was the negligence on the part of the driver of the car, which caused the accident. Both the insurance companies contended that the quantum of compensation claimed at Rs.1,50,00,000/- (Rupees One Crore Fifty Lakh only) is excessive.
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6. At trial, the first claimant was examined as P.W.1 and one Karthik, son of Rajendran, an eye witness was examined as P.W.2. Exs.P.1 to P.16 were marked. On the side of the respondents, one Karthik, son of Murugan was examined as R.W.1 and one Shanmugasundaram and Rajasimman were examined as R.W.2 and R.W.3. Exs.R.1 and R.2 were marked.
7. The Tribunal on consideration of the evidence found that it was the negligence on the part of the driver of the car that caused the accident. In coming to the said conclusion, the Tribunal relied upon the First Information Report (FIR) and the final report that was filed against the driver of the car.
8. On quantum, the Tribunal took the monthly total income of the deceased at Rs.9,000/- (Rupees Nine Thousand only), added 50% towards future prospects, deducted 50% towards personal expenses, the deceased being a bachelor, applied the multiplier of 18 and arrived at a sum of Rs.14,58,000/- (Rupees Fourteen Lakh Fifty Eight Thousand only) as loss of dependency. It also awarded the conventional damages as follows :
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1. Loss of Estate Rs.15,000/-
2. Loss of love and affection Rs.50,000/-
3. Funeral expenses Rs.15,000/-
4. Transport expenses Rs.10,000/-
In all, the Tribunal awarded a sum of Rs.15,48,000/- (Rupees Fifteen Lakh and Fourty Eight Thousand only) as compensation.
9. Terming the quantum of compensation as meagre, the claimants are on appeal seeking enhancement in C.M.A(MD)No.793 of 2021. The second respondent-insurance company has come up with the appeal in C.M.A(MD) No.142 of 2022, contending that the Tribunal ought not to have fixed the entire negligence on the driver of the four- wheeler.
10. We have heard Mr.G.Prabhu Rajadurai, learned counsel for the appellants in C.M.A.No.793 of 2021, Mr.V.Sakthivel, learned counsel for the appellant in C.M.A.(MD) No.142 of 2022 and Mr.C.Karthik, learned counsel for the other insurance company, namely, the insurer of the two wheeler, who is the fifth respondent in C.M.A.(MD) No.142 of 2022.
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11. Mr.G.Prabhu Rajadurai, learned counsel for the appellants in C.M.A.No.793 of 2021, would submit that the fixation of Rs.9,000/- (Rupees Nine Thousand only) as monthly notional income is too low.
12. Drawing our attention to the judgment of the Division Bench of this Court in Bharanidharan Vs. The Managing Director, TNSTC. (VPM) Ltd., Villupuram, in C.M.A.No.3271 of 2019 dated 29.08.2019, Mr.G.Prabhu Rajadurai, learned counsel for the appellants in C.M.A.No.793 of 2021, would submit that for an Engineering student, the Division Bench of this Court had taken the notional income at Rs.20,000/- (Rupees Twenty Thousand only) for the accident that occurred in the year 2016. It is also pointed out that the Division Bench in the above case relied upon the earlier judgment of this Court in Balamanohari and another Vs. Sri Venkateswara College of Engineering and others reported in 2018 (2) TNMAC - 81.
13. Mr.V.Sakthivel and Mr.Karthik, learned counsel appearing for the insurance companies would submit that the quantum of notional income would be fixed taking into account various factors and 7/15 https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.142 of 2022 & 793 of 2021 there cannot be a straight jacket formula. According to them, the fixation of Rs.9,000/- (Rupees Nine Thousand only) by the Tribunal, is just and proper.
14. We have considered the submissions of the learned counsel on either side.
15. The fixation of Rs.9,000/- (Rupees Nine Thousand only) as notional income for an Engineering student during the year 2016, in our opinion, is too low. We are in entire agreement with the judgment of the Division Bench of this Court, referred to supra and we find that fixation of Rs.20,000/- (Rupees Twenty Thousand only) per month would be just and proper. Therefore, the compensation has to be reworked, taking the monthly income at Rs.20,000/- (Rupees Twenty Thousand only).
16. If the monthly income is taken to be Rs.20,000/- (Rupees Twenty Thousand only) and after adding 50% towards future prospects, the monthly income would be Rs.30,000/- (Rupees Thirty Thousand only) and the annual income would be Rs.3,60,000/- (Rupees 8/15 https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.142 of 2022 & 793 of 2021 Three Lakh Sixty Thousand only). If we deduct 50% towards personal expenses, the annual loss of dependency would be Rs.1,80,000/- (Rupees One Lakh Eighty Thousand only), applying the multiplier of 18, the loss of dependency would be Rs.32,40,000/- (Rupees Thirty Two Lakh Forty Thousand only). We do not see any reason to interfere with the quantum of conventional damages of Rs.90,000/- (Rupees Ninety Thousand only) awarded by the Tribunal on other heads. Therefore, the compensation payable is enhanced and fixed at Rs.33,30,000/- (Rupees Thirty Three Lakh and Thirty Thousand only) and the award of the Tribunal is modified to the extent indicated above.
17. Adverting to the negligence, Mr.V.Sakthivel, learned counsel appearing for the insurer of the car would draw our attention to the sketch and the evidence of the driver of the four-wheeler. Relying upon the fact that the accident had occurred very near the median on the right hand side of the road. Mr.V.Sakthivel, learned counsel would submit that it is the sudden intrusion of the two-wheeler, which caused the accident. He would also point out that the driver of the four-wheeler has been examined and he had spoken to the fact that the two-wheeler came into the other side of the road though through the opening in the 9/15 https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.142 of 2022 & 793 of 2021 road, suddenly and therefore, he was unable to stop the car in time to avoid the collision.
18. Contending contra, Mr.C.Karthik, learned counsel appearing for the insurer of the two-wheeler would submit that when there is an Educational Institution and an opening in the road for vehicle to cut across, the driver of the four-wheeler should have been more careful and should have slowed down the vehicle. If only he had slowed down the vehicle, he could have avoided the accident.
19. We have considered the submissions on the learned counsel on either side.
20. We find that the contention of Mr.V.Sakthivel, learned counsel appearing for the appellant in C.M.A(MD) No.142 of 2022 has some force in it.
21. Ex.R.2 - Plan shows that the place of impact is almost immediately after the median on the right side of the road. That would lead to the presumption that the two-wheeler had just entered the other 10/15 https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.142 of 2022 & 793 of 2021 side of the road through the opening in the road suddenly and impact had occurred since the car driver could not control the speed. Mere fact that the car was driven at a good speed particularly, on a highway, cannot be a ground to fix the entire negligence on the driver of the car.
22. The evidence of P.W.2 the alleged eyewitness is not very inspiring, inasmuch as the reading of the entire evidence creates a doubt as to his very presence in the scene of occurrence. R.W.1, the car driver had deposed cogently as to the nature of the accident. It is also seen that he was travelling with his family. Therefore, it can be easily assumed that he was not travelling at a break-neck speed.
23. Mr.C.Karthik, learned counsel appearing for the insurer of the two-wheeler would submit that the very manner, in which, the accident had occurred and the fact that the two-wheeler was dragged for a good distance, after the impact, would show that the negligence was on the car driver. We are unable to accept the submissions of the learned counsel that the entire negligence should be fixed on the car driver. No doubt, in an area where there are educational institutions and where there is an opening in the road to enable the vehicles to get on to the 11/15 https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.142 of 2022 & 793 of 2021 other side, the driver of a vehicle particularly, a four-wheeler is expected to slow down and drive consciously. But at the same time, certain amount of care is also expected on the part of the driver of the vehicle, which attempts to get on to the right side of the road, particularly, on a highway where vehicles generally, go at a good speed. We are, therefore, of the opinion that the Tribunal could have done well to have apportioned the negligence between the two vehicles.
24. Considering the overall circumstances, we find that certain percentage of negligence should be attributed to the rider of the two-wheeler also. From the evidence available and from the Plan, we find that the major portion of negligence is on the four-wheeler and rider of the two-wheeler had contributed to a certain extent to that. We fix the percentage of contributory negligence at 75% on the four-wheeler namely, the car and 25% on the rider of the two wheeler. Therefore, the finding of the Tribunal that the entire negligence was on the part of the driver of the four wheeler alone is set aside and the insurance companies are required to share the compensation at 75% and 25% respectively. 12/15 https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.142 of 2022 & 793 of 2021
25. Accordingly, these Civil Miscellaneous Appeals are partly allowed and the award of the Tribunal is modified. The quantum of compensation is enhanced from Rs.15,48,000/- to Rs.33,30,000/- (Rupees Thirty Three Lakh Thirty Thousand only). The insurer of the car / appellant in C.M.A.(MD) No.142 of 2022 is directed to pay 75% of the said compensation and the insurer of the two wheeler namely, the fifth respondent in C.M.A.(MD) No.142 of 2022 is directed to pay 25% of the compensation. The apportionment of the compensation amongst the claimants as made by the Tribunal and interest awarded by the Tribunal are confirmed. The insurance companies are directed to deposit the enhanced compensation, less any amount already deposited, within a period of six weeks from the date of receipt of a copy of this judgment. There shall be no order as to costs in these appeals.
[R.S.M.,J.] [N.S.K.,J.]
18.02.2022
Index:Yes/No
Internet:Yes/No
rm
Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. 13/15 https://www.mhc.tn.gov.in/judis C.M.A(MD)Nos.142 of 2022 & 793 of 2021 To
1.The Principal District Court, Motor Accidents Claims Tribunal, Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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AND N.SATHISH KUMAR,J.
rm COMMON JUDGMENT DELIVERED IN C.M.A(MD)Nos.142 of 2022 & 793 of 2021 18.02.2022 15/15 https://www.mhc.tn.gov.in/judis