Madras High Court
National Insurance Company Limited vs Annakili on 5 August, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.3320 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.3320 of 2021
and
C.M.P.No.18880 of 2021
National Insurance Company Limited,
No.9, Infantry Road,
Near Alangar Theater, Vellore. .. Appellant
Vs.
1.Annakili
2.Perumal
3.D.Sethil .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 21.04.2021, made in
M.C.O.P.No.43 of 2018, on the file of the Motor Accident Claims Tribunal, Sub
Court, Vaniyambadi.
For Appellant : Mr.D.Bhaskaran
For RR 1 & 2 : Mrs.A.Subadra
For R3 : No appearance
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C.M.A.No.3320 of 2021
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.) This Civil Miscellaneous Appeal has been filed by the appellant / United India Insurance Company Limited against the judgment and decree dated 21.04.2021, made in M.C.O.P.No.43 of 2018, on the file of the Motor Accident Claims Tribunal, Sub Court, Vaniyambadi.
2.The appellant is the 2nd respondent in M.C.O.P.No.43 of 2018, on the file of the Motor Accident Claims Tribunal, Sub Court, Vaniyambadi. The respondents 1 & 2/claimants filed the said claim petition, claiming a sum of Rs.20,00,000/- as compensation for the death of their son Vijayakumar who died in the accident that took place on 04.01.2018.
3.According to the respondents 1 & 2, on 04.01.2018 at about 06.00 A.M., while their son Vijayakumar was riding the unregistered motorcycle towards Thiruppatur on the Thiruppatur – Vaniyambadi Main Road near thaliaruthan medu at Kalendra Village, the driver of the lorry bearing Registration No.TN 88 Z 6372 belonging to 3rd respondent drove the same in a rash and negligent manner from the opposite direction towards Vaniyambadi, dashed against their son, ran over his head 2/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021 and caused the accident. In the accident the said Vijayakumar died on the spot. Hence, the respondents 1 & 2 filed the claim petition claiming compensation against the 3rd respondent and appellant, being the owner and insurer of the lorry respectively.
4.The 3rd respondent – owner of the lorry remained exparte before the Tribunal.
5.The appellant being the insurer of the lorry filed counter statement and denied all the averments made by the respondents 1 & 2. According to the appellant, on the date of accident, the deceased Vijayakumar drove the unregistered motorcycle with the owner of the vehicle as pillion rider, at a high speed in a rash and negligent manner, overtook the ongoing unidentified lorry and dashed on the right side of the milk lorry bearing Registration No.TN 88 Z 6372 which was coming in the opposite direction belonging to 3rd respondent and invited the accident. Due to the said impact, the pillion rider Ravichandran fell on the right side of the road and the rider of the motorcycle/deceased Vijayakumar fell on the left side of the road. At that time, the right side rear tyre of the unidentified lorry ran over the said Vijayakumar's head and he died on the spot. Hence, the driver of the lorry belonging to 3 rd respondent was not responsible for the accident and therefore, the appellant is not 3/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021 liable to pay any compensation to the respondents 1 & 2. Further, the rider of the motorcycle / deceased Vijayakumar was not possessing valid driving license to ride the motorcycle on the date of accident. The accident has occurred only due to the negligent driving by the rider of the motorcycle and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1, one Ravichandran, pillion rider as well as eyewitness to the accident was examined as P.W.2 and 7 documents were marked as Exs.P1 to P7. The appellant examined one Ponnurangam, official of the appellant as R.W.1 and rough sketch was marked as Ex.R1.
7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by the driver of the lorry belonging to the 3rd respondent and directed the appellant to pay a sum of Rs.23,50,496/- as compensation to the respondents 1 to 2.
8.Challenging the liability fastened on them and questioning the quantum of compensation granted by the Tribunal in the award dated 21.04.2021, made in M.C.O.P.No.43 of 2018, the appellant has come out with the present appeal. 4/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021
9.The learned counsel appearing for the appellant contended that the accident is only a hit and run case. The respondents 1 & 2 are entitled to only solatium. They are not entitled to any compensation from the appellant. At the time of accident, the deceased Vijayakumar only drove the motorcycle in a rash and negligent manner at a high speed overtaking a foregoing unidentified lorry, dashed on the rear portion of the lorry bearing Registration No.TN 88 Z 6372 insured with the appellant and caused the accident. In the said impact, the pillion rider Ravichandran fell on the right side of the road and the rider of the motorcycle viz., the deceased Vijaykumar fell on the left side of the road. At that time, an unidentified lorry ran over the head of the said Vijaykumar and the he died in the accident. The Milk lorry bearing Registration No.TN 88 Z 6372 insured with the appellant was not involved in the accident and the driver of milk lorry is not responsible for the accident. F.I.R. was registered only based on the complaint given by P.W.2. P.W.2, who was the pillion rider of the motorcycle, gave a complaint that the accident occurred only due to rash and negligent driving by the rider of the motorcycle, who dashed on the unidentified lorry and caused the accident. The respondents 1 & 2 are relying on Ex.P1/F.I.R, which is admissible document and now they cannot dispute the contents of F.I.R. The Police after investigation, closed the case as charges abated. P.W.2 is an interested witness and in order to claim compensation from the appellant and to help 5/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021 the respondents 1 & 2, has deposed contrary to the contents of F.I.R. The respondents 1 & 2 or P.W.2 had not given any counter complaint against the driver of the lorry. The respondents 1 & 2 have not examined the investigating officer to disprove the contents of F.I.R.
9(i). In support of his contentions, the learned counsel appearing for the appellant relied on the following Division Bench judgments of this Court:
1. 2017 (2) TNMAC 115 (DB), [United India Insurance Company Limited Vs. D.Hemavathy] and
2. 2020 (2) TNMAC 455 (DB), [United India Insurance Co. Ltd., Vs. Suseela Jothi Mary and another].
and submitted that once the respondents 1 & 2 relied on F.I.R. as admissible document, subsequently they cannot go back on their stand. Based on uncorroborated evidence of P.W.2, negligence cannot be fixed on the driver of the insured vehicle.
6/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021 9(ii).The learned counsel appearing for the appellant further submitted that in any event, the notional monthly income fixed by the Tribunal is without any material and the same is excessive. The deceased was aged 19 years at the time of accident and he was not in permanent employment. Hence, 50% enhancement awarded by the Tribunal towards future prospects is excessive and prayed for setting aside the award of the Tribunal.
10.The learned counsel appearing for the respondents 1 & 2 made submissions in support of the award passed by the Tribunal and contended that P.W.2 has categorically stated that Police took signature in the blank paper and he has not lodged any complaint against the rider of the motorcycle. The appellant has not examined the person who alleged to have recorded the statement of P.W.2. At the time of accident, the deceased was working as Mason and was earning a sum of Rs.20,000/- per month. But the Tribunal fixed a meagre sum of Rs.14,108/- as monthly income of the deceased and awarded compensation towards loss of dependency. The total compensation granted by the Tribunal is meagre and prayed for dismissal of the appeal.
11.Though notice has been served on the 3rd respondent and his name is 7/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021 printed in the cause list, there is no representation for him either in person or through counsel.
12.Heard the learned counsel appearing for the appellant-Insurance Company as well as the learned counsel appearing for the respondents 1 & 2 and perused the entire materials on record.
13.It is the case of the respondents 1 & 2 that while their son Vijayakumar was riding the unregistered motorcycle towards Thirupattur on the Thirupattur – Vaniyambadi Main Road with P.W.2 as pillion rider, the lorry bearing Registration No.TN 88 Z 6372 belonging to 3rd respondent and insured with appellant, driven by its driver towards Vaniyambadi in a rash and negligent manner, dashed on the said Vijayakumar and ran over on his head and caused the accident. Due to the injuries sustained in the accident, the said Vijayakumar died. To substantiate their case, they examined the pillion rider of the motorcycle who is an eyewitness to the accident as P.W.2 and marked F.I.R. as Ex.P1. On the other hand, it is the case of the appellant that the lorry bearing Registration No.TN 88 Z 6372 belonging to 3rd respondent was not involved in the accident and the accident is only a hit and run case. According to the appellant, at the time of accident, the deceased drove the motorcycle in rash and 8/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021 negligent manner at a high speed and while over taking the ongoing unidentified lorry, dashed on the Milk Lorry bearing Registration No.TN 88 Z 6372 insured with the appellant, which was coming in the opposite direction. Due to the same, the pillion rider Ravichandran fell on the right side of the road and rider of the motorcycle deceased Vijayakumar fell on the left side of the road and the rear right side wheel of the unidentified lorry ran over the head of the said Vijayakumar. The deceased rode the unregistered motorcycle without license. To substantiate their case, the learned counsel appearing for the appellant is relying on F.I.R. A reading of F.I.R. shows that F.I.R. is registered based on the statement given by P.W.2 in the Hospital. P.W.2 before the Tribunal on oath denied that he gave such statement. P.W.2 stated that Police took his signature in blank paper in Hospital and filled up the contents. From the cross examination of P.W.2 by the counsel for appellant it is seen that a suggestion was put to P.W.2 that he only gave such a statement and now denying the same. The same was denied by P.W.2. The appellant has not examined the Police who alleged to have recorded the statement of P.W.2 in the Hospital to disprove the evidence of P.W.2. Further, the appellant has not examined the driver of the Milk Lorry to prove their case.
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14.The two judgments relied on by the learned counsel appearing for the appellant are not applicable to the facts of the present case. In the judgment reported in 2017 (2) TNMAC 115 (DB), cited supra, the Investigating Officer and owner of the motorcycle were examined, who deposed that accident occurred only due to the involvement of unknown Auto Rickshaw. In view of evidence of R.W.1and R.W.2 in the above case, the Court did not accept the uncorroborated evidence of claimants. In the present case, the appellant did not examine the Investigating Officer, the driver and owner of the milk lorry.
14(i).In the judgment reported in 2020 (2) TNMAC 455 (DB), cited supra, the person who gave the complaint was not examined. Hence, the Division Bench of this Court held that there is no reason to discard the contents of F.I.R. In the present case, P.W.2, who alleged to have given statement attributing negligence on the deceased and involvement of unidentified lorry, came to the witness box and denied the same.
15.Considering the materials on record in its entirety especially evidence of P.W.2 who denied having given such a statement as mentioned in the F.I.R., the contents of F.I.R. has rightly been rejected by the Tribunal and accepted the 10/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021 evidence of P.W.2. There is no reason to interfere with the said finding of the Tribunal warranting interference by this Court.
16.As far as quantum of compensation is concerned, it is the case of the respondents 1 & 2 that their son was aged 19 years, working as Mason and was earning a sum of Rs.20,000/- per month. Except oral evidence, the respondents 1 & 2 have not filed any documentary evidence to prove the avocation and income of the deceased. The accident is of the year 2018. The Tribunal considering the year of accident and age of the deceased, fixed a sum of Rs.14,108/- per month as notional income of the deceased and granted 50% enhancement towards future prospects. Both the notional income fixed by the Tribunal as well as enhancement granted by the Tribunal towards future prospects are excessive. Considering the year of accident, age and nature of work done by the deceased, a sum of Rs.13,000/- per month is fixed as notional income of the deceased. The deceased was aged 19 years at the time of accident and he was not a permanent job holder. Hence, the respondents 1 & 2 are entitled to only 40% enhancement towards future prospects as per the judgment of the Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC), [National Insurance Company Limited Vs. Pranay Sethi and others]. Following the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC 11/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021 Supreme Court, [Sarla Verma & others Vs. Delhi Transport Corporation & another], the Tribunal rightly applied multiplier '18' and deducted 50% towards personal expenses as the deceased was a bachelor at the time of accident. Thus, by fixing a sum of Rs.13,000/- as monthly income of the deceased, granting 40% enhancement towards future prospects and after deducting 50% towards personal expenses, the compensation awarded by the Tribunal towards loss of dependency is modified and reduced to Rs.19,65,600/- {Rs.18,200/- [(Rs.13,000/- + Rs.5,200/- (40% of Rs.13,000/-)] x 12 x 18 x 1/2}. The Tribunal has awarded a meagre sum of Rs.50,000/- towards loss of love and affection to the respondents 1 & 2 who are the parents of the deceased and the same is enhanced as the respondents 1 & 2 are entitled to a sum of Rs.40,000/- each towards filial consortium as they have lost their son at young age. The Tribunal has not awarded any amount towards loss of estate. The respondents 1 & 2 are entitled to a sum of Rs.15,000/- towards loss of estate. The amount awarded by the Tribunal towards funeral expenses is just and reasonable and hence, the same is confirmed. Thus, the compensation awarded by the Tribunal is modified as follows:
S. Description Amount awarded Amount Award
No by Tribunal awarded by this confirmed or
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C.M.A.No.3320 of 2021
(Rs) Court enhanced or
(Rs) granted
1. Loss of dependency 22,85,496/- 19,65,600/- Reduced
2. Loss of love and affection 50,000/- - Set aside
3. Funeral expenses 15,000/- 15,000/- Confirmed
4. Loss of estate - 15,000/- Granted
5. Filial consortium to
respondents 1 & 2 - 80,000/- Granted
Total Rs.23,50,496/- Rs.20,75,600/- Reduced by
Rs.2,74,896/-
17.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.23,50,496/- is hereby reduced to Rs.20,75,600/-. The appellant-Insurance Company is directed to deposit the award amount now determined by this Court along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.43 of 2018, on the file of the Motor Accident Claims Tribunal, Sub Court, Vaniyambadi. On such deposit, the respondents 1 & 2 are permitted to withdraw their respective share of the award amount now determined by this Court as per the ratio of apportionment fixed by the Tribunal, along with proportionate interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The appellant is 13/15 https://www.mhc.tn.gov.in/judis C.M.A.No.3320 of 2021 permitted to withdraw the excess amount lying in the credit of M.C.O.P.No.43 of 2018, if the entire award amount has been already deposited by them. Consequently the connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (S.S., J)
05.08.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The Subordinate Judge,
Motor Accidents Claims Tribunal,
Vaniyambadi.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
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C.M.A.No.3320 of 2021
and
S.SOUNTHAR, J.
krk
C.M.A.No.3320 of 2021
05.08.2022
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