Madras High Court
The National Insurance Company Limited vs Palaniammal on 18 June, 2014
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.06.2014 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.1725 of 2014 and M.P.No.1 of 2014 The National Insurance Company Limited, Branch office, 88F, By-pass road, Dharmapuri-636 701. ... Appellant vs. 1.Palaniammal 2.Minor Thavamani 3.Minor Thangaraj 4.Minor Thangavel (minors represented by next friend mother Palaniammal 1st respondent) 5.A.Pandian ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree, dated 31.01.2005 made in M.C.O.P.No.78 of 2004 on the file of Motor Accidents Claims Tribunal (Additional Special Judge), Krishnagiri. For Appellant : Ms.Subathra J U D G M E N T
In the accident, which occurred on 05.02.2004, husband of the 1st respondent died. According to the legal representatives of the deceased Palaniappan, wife and 3 minor children, that on 05.02.2004, about 15.50 hours, when the husband of the 1st respondent was riding a TVS 50 XL Super, bearing Registration No.TN-29E-0135, on Palacode Bypass Road, in front of Perumal Boosha Shop, an old lady suddenly crossed the road. In order to avoid the accident, sudden brakes were applied, due to which, he could not control the vehicle, fell down and sustained injuries. He was provided first aid in Government Hospital, Palacode and thereafter, referred to Government Head Quarters Hospital, Dharmapuri. For better treatment, he was sent to St. John Medical College Hospital, Bangalore. Despite treatment, he succumbed to the injuries. A case in Crime No.71 of 2004 under Sections 279 and 304(A) of IPC has been registered against him on the file of Palacode Police Station. Legal representatives, wife and three minor children, filed MCOP No.78 of 2004 on the file of Motor Accidents Claims Tribunal (Additional Special Judge), Krishnagiri, claiming compensation of Rs.3,50,000/-.
2.Though Mr.A.Pandian, owner of the vehicle, has been impleaded as respondent No.1, he has remained ex parte.
3.Opposing the claim, the Insurance Company submitted that when the deceased was riding his moped, an old lady suddenly crossed the road and to avoid the accident, he applied sudden brakes, lost his control, fell down and sustained injuries. They further contended that the deceased, being a tort-feasor, his legal representatives are not entitled to claim any compensation. Without prejudice to the above, they disputed the quantum of compensation claimed under various heads.
4.Before the Claims Tribunal, wife of the deceased examined herself as PW1 and reiterated the manner of accident. PW2 is stated to have witnessed the accident is the defacto complainant. Ex.R.1-First Information Report, Ex.P.2-Post-mortem Certificate and Ex.P.3-Insurance Policy have been marked. RW1 is the Deputy Manager of the appellant Insurance Company. Ex.R.1 is the policy.
5.On evaluation of pleadings and evidence, the Claims Tribunal held that the accident has occurred in the manner as claimed in the petition and not due to rash and negligent riding of the motor cycle, bearing Registration No.TN-29E-0135, insured with the appellant herein.
6.One aspect that has to be determined in this case is whether the eye witness had attributed rash and negligence on the part of the deceased, so as to bring the deceased under the term of tort-feasor. The legal representatives on the quantum of award have claimed that the compensation awarded by the Claims Tribunal is reasonable, considering the above, this Court deems it fit to extract the version of PW2, Murugesan, the defacto complainant as hereunder:
gHdpag;gd;. taJ 43. j/bg/bgz;zfuj;jhd; vd;w khhpag;gd;. mz;zhefh;. ghyf;nfhL. Vd;gtiu new;W 05/02/2004k; njjp mz;zhefh; ghyf;nfhl;oypUe;J fl;Lfhthapy; bfhl;lhapYs;s mtuJ mz;zhh; tPl;ow;F bry;y Ng;gh; vf;!;vy; bcwtp oa{l;o ovd;-29,X-135 vd;w tz;oapy; ghyf;nfhL iggh!; nuhl;oy; bgUkhs; g{rhf; fil Kd;ghf khiy 03/50 kzpastpy; tlf;F nehf;fp bry;Yk; nghJ. vjphpy; te;j tajhd xU K:jhl;o nuhl;od; Fwf;nf te;jbghGJ. nkw;go vdJ rpj;jg;gh gHdpag;gdpd; jiyapd; gpd;g[wk; gyj;j mog;gl;Lk; kw;Wk; ,lJ fd;dk;. tyJ fhy; ghjk; nghd;w ,l';fspy; mog;gl;L ,Ue;jtiu jfty; mwpe;J ghyf;nfhL muR kUj;Jtkidf;F mDg;gp itj;jhh;fs;/ nkw;go jh;kg[hp jiyik kUj;Jtkidapy; vdJ rpj;jg;ghit rpfpr;irf;F nrh;j;J rpfpr;irf;Fg; gpd; v';fs; tpUg;gj;jpd;nghpy; bg';fS:h; brd;/ $hd; kUj;Jtkidf;F bfhz;L brd;nwhk;/ nkw;go. bg';fS:h; kUj;Jtkidapy; rpfpr;ir mspj;Jk; buhk;g rPhprhf ,Ug;gjhft[k; gpiHf;fkhl;lhh; vd;W kUj;Jth;fs; Twpajd; nghpy; ,d;W 06/02/2004k; njjpapy; nkw;go vd; rpj;jg;ghit ghyf;nfhL bfhz;Lte;J mtuJ tPl;onyna nrh;j;jnghJ khiy 04/10 kzpastpy; nkw;go vdJ rpj;jg;gh gHdpag;gd; mtuJ ,y;yj;jpy; ,we;Jtpl;lhh;/ Oral testimony of PW2 Murugesan has been corroborated.
7.Though Ms.Subathra, learned counsel for the appellant Insurance Company submitted that the deceased was a tort-feasor and that therefore, the Insurance Company is not liable to pay compensation to the legal representatives of the tort-feasor, on the facts and circumstances of this case, more particularly, the evidence adduced by the defacto-complainant is to the effect that there was no rash and negligent driving on the part of the deceased, and the accident occurred, only when the old lady suddenly crossed the road, and in the process of avoiding the vehicle knocked down the old lady, and while applying the brakes, the rider himself lost his control, fell down, sustained injuries and died. Rashness or negligence cannot be fixed on the rider to term him as a tortfeasor.
8.In the light of the above discussion, the finding of the Claims Tribunal in awarding compensation of Rs.1,87,000/- to the legal representatives of the deceased, cannot be said to be manifestly illegal. Quantum of compensation is on the lower side. For the reasons stated supra, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
9.It is represented by the learned counsel for the appellant Insurance Company that the entire award amount with proportionate accrued interests and costs, has already been deposited to the credit of M.C.O.P.No.78 of 2004 on the file of Motor Accidents Claims Tribunal (Additional Special Judge), Krishnagiri.
Consequent to the dismissal of this appeal, the 1st respondent/claimant is permitted to withdraw the entire award amount, by making necessary applications. At the time of filing of Claim petition, in the year 2004, the respondent Nos.2 to 4, were minors, aged about 14 years, 12 years and 11 years, respectively and by this time, they would have attained the age of majority. It is open to the respondents 2 to 4, to take out necessary applications, to discharge the guardian and seek for withdrawal.
18.06.2014 Index :Yes/No Internet :Yes/No mps To The Motor Accidents Claims Tribunal (Additional Special Judge), Krishnagiri.
S. MANIKUMAR, J, mps C.M.A.No.1725 of 2014 and M.P.No.1 of 2014 18.06.2014