The Divisional Manager Vs Manimegalai — Insurance | Madras HC (2022)

The Divisional Manager Vs Manimegalai — Insurance | Madras HC (2022)

C.M.A.No.2429 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.06.2022

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI and

THE HONOURABLE MR.JUSTICE S.SOUNTHAR

C.M.A.No.2429 of 2021

and

C.M.P.No.13817 of 2021

The Divisional Manager, M/s. United India Insurance Co. Ltd, No.4, Promenade Road, Cantonment, Trichy – 1. Policy No.0124063002P303197057.

.. Appellant

Vs.

1.Manimegalai

(The deceased name was amended as per Order in I.A.No.2898/2018 dated 20.11.2018)

2.P.Vijay

3.Priya

(2^nd and 3^rd respondents declared as major and amended as per order in I.A.No.1/2019 & 3/2019 dated 09.07.2019)

4.Minor. Gomathi

(Minor 4^th respondent rep. by her natural guardian and next friend mother Manimegalai – R1 herein)

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5.Pushpa

6.Govindaraj

7.Mubarak Ali

8.The Divisional Manager, The Oriental Insurance Company Ltd, No.4 Bharathidasan Road, 2^nd Floor, Cantonment, Trichy – 1. Policy No.453309/31/2013/6046. .. Respondents

Prayer : This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 20.01.2021, made in M.C.O.P.No.609 of 2013, on the file of the Motor Accident Claims Tribunal, Principal District Court, Perambalur.

For Appellant : Mr.D.Bhaskaran For RR 1 to 5 : Mr.T.Gobinath For RR 6 & 7 : No appearance For R8 : Mr.S.Arunkumar

J U D G M E N T

(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 20.01.2021, made in M.C.O.P.No.609 of 2013, on the file of

the Motor Accident Claims Tribunal, Principal District Court,

Perambalur.

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2.The appellant is the 2^nd respondent in M.C.O.P.No.609 of 2013, on the file of the Motor Accident Claims Tribunal, Principal District Court, Perambalur. The respondents 1 to 5/claimants filed the said claim petition, claiming a sum of Rs.40,00,000/- as compensation for the death of one Chandrasekaran who died in the accident that took place on 11.05.2013.

3.According to the respondents 1 to 5, on 11.05.2013 the deceased Chandrasekaran was travelling as Additional Driver in the lorry bearing Registration No.TN 45 AF 1782 belonging to 7^th respondent and insured with 8^th respondent on the GST Road towards Chennai. At about 08.30P.M., while the lorry was proceeding opposite to Sri Ram Hotel, Kannapiranpuram, the driver of the lorry bearing Registration No.TN 31 E 7899 belonging to 6^th respondent and insured with appellant, who was proceeding ahead of the 7^th respondent's lorry at hectic and uncontrollable speed, without giving any caution, without blowing horn, without obeying any traffic rules and regulations, suddenly applied brakes and stopped the lorry on the road. Due to the said act of the driver of the lorry belonging to 6^th respondent, the right backside body of the lorry belonging to 6^th respondent was dashed on the left front side of the lorry belonging to 7^th

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respondent and caused the accident. In the accident, the said Chandrasekaran sustained multiple grievous injuries all over the body and immediately after the accident, he was taken to Government Hospital, Chengalpattu, where first aid treatment was given and thereafter he was admitted at Government Hospital, Chennai. Inspite of medical treatment, the said Chandrasekaran succumbed to injuries on 13.05.2013. Hence, the respondents 1 to 5 filed the claim petition against the respondents 6 to 8 and appellant.

4.The 6^th respondent – owner of the lorry bearing Registration No.TN 31 E 7899 remained exparte before the Tribunal.

5.The appellant being the insurer of the lorry belonging to 6^th respondent filed counter statement and denied all the averments made by the respondents 1 to 5 in the claim petition. The appellant denied the manner of accident as alleged by the respondents 1 to 5. According to the appellant, no driver would stop the lorry as alleged by the respondents 1 to 5. The red light signal would be automatic while applying brake of the lorry. Had the driver of the lorry belonging to 7^th respondent drove the same maintaining reasonable distance, the accident could have been

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avoided. In fact, the driver of the lorry belonging to 7^th respondent attempted to overtake the lorry belonging to 6^th respondent in a rash and negligent manner and caused the accident. Further, it is evident from the Accident Register that the deceased accidentally fell down from the lorry. Therefore, it is clear that the accident has occurred only due to the negligent driving by the driver of the lorry owned by 7^th respondent. The respondents 1 to 5 have to prove the age, avocation and income of the deceased to claim compensation. In any event, the quantum of compensation claimed by the respondents 1 to 5 are excessive and prayed for dismissal of the claim petition as against the appellant.

6.The 7^th respondent – owner of the lorry bearing Registration No.TN 45 AF 1782 filed separate counter statement and denied the manner of accident and stated that at the time of accident, the deceased was travelling as Spare Driver in the lorry belonging to 7^th respondent driven by one Ravi. While they were proceeding opposite to Sri Ram Hotel at Kannapiranpuram, the driver of the lorry belonging to 6^th respondent, who was proceeding ahead of the lorry owned by 7^th respondent, without giving any caution, suddenly applied the brake and stopped the lorry on the road. Due to the tortuous act of the driver of the

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6^th respondent's lorry, the right backside of the 6^th respondent's lorry was dashed on the left front side of the lorry owned by 7^th respondent. The entire negligence is only on the part of the driver of the lorry belonging to

6^th respondent. At the time of accident, the lorry belonging to 7^th respondent was insured with 8^th respondent and the insurance policy was in force and hence, the 7^th respondent is not liable to pay any compensation to the claimants. The compensation claimed by the respondents 1 to 5 is excessive and prayed for dismissal of claim petition.

7.The 8^th respondent – Oriental Insurance Company Limited being the insurer of the lorry bearing Registration No.TN 45 AF 1782 belonging to 7^th respondent filed counter statement and denied the manner of accident and contended that due to negligent driving by the driver of the lorry belonging to 6^th respondent, the accident has occurred. The F.I.R. was registered only against the driver of the lorry belonging to 6^th respondent and there is no negligence on the part of the driver of the lorry belonging to 7^th respondent. The 8^th respondent denied the age, avocation and income of the deceased and the dependency of the respondents 1 to 5. The compensation claimed by respondents 1 to 5 are highly excessive and prayed for dismissal of the claim petition.

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8.Before the Tribunal, the 1^st respondent examined herself as

P.W.1, one Ravi, driver of the lorry belonging to 7^th respondent as well as eyewitness to the accident was examined as P.W.2 and 10 documents were marked as Exs.P1 to P10. The respondents 6 to 8 and appellant did not let in any oral and documentary evidence.

9.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 6^th respondent and directed the appellant as insurer of 6^th respondent's lorry to pay a sum of Rs.29,05,000/- as compensation to the respondents 1 to 5 and dismissed the claim petition as against the respondents 7 & 8.

10.Challenging the liability fastened on them and questioning the quantum of compensation granted by the Tribunal in the award dated 20.01.2021, made in M.C.O.P. No.609 of 2013, the appellant has come out with the present appeal.

11.The learned counsel appearing for the appellant contended that

the Tribunal failed to adjudicate the issue properly on negligence and

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liability. The accident occurred only when the driver of the lorry bearing Registration No.TN 45 AF 1782 belonging to 7^th respondent drove the same in a rash and negligent manner and dashed on the backside of the lorry bearing Registration No.TN 31 E 7899 owned by 6^th respondent and insured with appellant, which was proceeding ahead of him. The Tribunal failed to see that the vehicle coming behind the ongoing vehicle must maintain sufficient distance from other vehicle. The evidence of P.W.2, the driver of the lorry belonging to 7^th respondent is not acceptable as he only dashed on the backside of the lorry belonging to 6^th respondent which was going ahead of him. In the Accident Register registered as per the information furnished by P.W.2, it has been stated that the deceased fell down from the lorry. If P.W.2, the driver of the lorry belonging to 7^th respondent maintained moderate speed, he could have avoided the accident. The accident occurred only due to the negligence of P.W.2, driver of the lorry belonging to 7^th respondent. The respondents 1 to 5 did not examine the employer of the deceased. The Tribunal erroneously accepting the income of the deceased based on the letter head salary certificate, fixed excessive amount of Rs.15,000/- as monthly income of the deceased and granted excessive compensation and prayed for setting aside the award of the Tribunal.

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12.Mr.T.Gobinath, learned counsel appearing for the respondents 1

to 5 / claimants contended that the accident occurred only due to the negligence on the part of the driver of the lorry bearing Registration No.TN 31 E 7899 belonging to 6^th respondent and insured with appellant. The respondents 1 to 5 examined the driver of the lorry bearing Registration No.TN 45 AF 1782 belonging to 7^th respondent as P.W.2, in which the deceased traveled and proved the negligence on the part of the driver of the lorry owned by 6^th respondent. The deceased was working as Spare Driver in the lorry bearing Registration No.TN 45 AF 1782 and the respondents 1 to 5 have filed Ex.P5 / driving license and Ex.P10 / salary certificate of the deceased issued by the owner of the lorry and proved the salary of the deceased. The finding of the Tribunal fixing negligence on the part of the driver of the lorry belonging to 6^th respondent is valid and the total compensation awarded by the Tribunal is not excessive and prayed for dismissal of the appeal.

13.Though notice has been served on the respondents 6 & 7 and

their names are printed in the cause list, there is no representation for them, either in person or through counsel.

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14.Mr.S.Arunkumar, learned counsel appearing for the 8^th respondent – Oriental Insurance Company Limited submitted that the Tribunal dismissed the claim petition against the 8^th respondent and prayed for dismissal of the appeal as against the 8^th respondent.

15.Heard the learned counsel appearing for the appellant, learned counsel appearing for the respondents 1 to 5 as well as the learned counsel appearing for the 8^th respondent and perused the entire materials on record.

16.It is the case of the respondents 1 to 5 that on 11.05.2013, while the deceased was travelling as Spare Driver in the M & Co., Transport lorry bearing Registration No.TN 45 AF 1782 belonging to 7^th respondent, the driver of the lorry bearing Registration No.TN 31 E 7899 belonging to 6^th respondent, who was proceeding ahead of the lorry owned by 7^th respondent, drove the same in a rash and negligent manner, applied sudden brake and stopped the lorry in the middle of the road. On seeing this, the driver of the lorry in which the deceased was travelling, tried to avoid the accident by turning the lorry to right side. Inspite of the

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same, the lorry in which the deceased travelled dashed on the backside of the lorry which was proceeding ahead and thus the accident occurred due to negligent stopping of lorry by the driver of the lorry bearing Registration No.TN 31 E 7899. To prove the said contention, the respondents 1 to 5 examined the driver of the lorry in which the deceased was travelling as P.W.2 and marked F.I.R. as Ex.P1, which was registered against the driver of the lorry belonging to 6^th respondent. On the other hand, it is the case of the appellant that the accident has occurred only due to negligent driving by P.W.2, who drove the lorry without maintaining sufficient safe distance and while trying to overtake the lorry going ahead, dashed on the backside of the lorry belonging to 6^th respondent. To substantiate their contention, appellant and 6^th respondent did not let in any oral and documentary evidence and also they did not examine the driver of the lorry belonging to 6^th respondent. The Tribunal considering the evidence of P.W.2, contents of Ex.P1/F.I.R. and in the absence of any contra evidence to the evidence of P.W.2, fixed negligence on the part of the driver of the lorry bearing Registration No.TN 31 E 7899 belonging to 6^th respondent. There is no error in the said reasoning of the Tribunal, warranting interference by this Court.

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17.As far as quantum of compensation is concerned, the respondents 1 to 5 claimed that the deceased was working as Driver in M & Co. Transport, Thuraiyur TK, Trichy District and was earning a sum of Rs.15,000/- per month and produced Ex.P5 / Driving License and Ex.P10 / salary certificate of the deceased to prove the same. The Tribunal accepting the said salary certificate, fixed the monthly income of the deceased at Rs.15,000/-. A perusal of Ex.P10 shows that it is not a salary slip of the deceased. In a letter head it has been stated that deceased was working as Lorry Driver and was paid a sum of Rs.15,000/- per month. The respondents 1 to 5 have not filed any salary slip and did not examine the owner of the Transport Company to prove the income of the deceased. The Tribunal without properly appreciating Ex.P10, erroneously accepted the same and fixed a sum of Rs.15,000/- as monthly income of the deceased. In the absence of any materials with regard to income of the deceased, the monthly income fixed by the Tribunal is excessive. The accident occurred in the year 2013. Considering the date of accident and nature of work done by the deceased, a sum of Rs.13,000/- is fixed as notional income of the deceased. The deceased was aged 38 years at the time of accident. The Tribunal considering the age of the deceased has rightly granted 40% enhancement as per the judgment of the Hon'ble

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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 Supreme Court, [Sarla Verma & others Vs. Delhi Transport Corporation & another] , the Tribunal rightly applied multiplier '15' and deducted 1/4^th towards personal expenses as there are five dependants of the deceased and awarded compensation. Thus, by fixing a sum of Rs.13,000/- as monthly income of the deceased, the compensation awarded by the Tribunal towards loss of dependency is modified to Rs.24,57,000/- {Rs.18,200/- [(Rs.13,000/- + Rs.5,200/- (40% of Rs.13,000/-)] x 12 x 15 x ¾}. The respondents 2 to 4 are the children of the deceased and the Tribunal has not awarded any amount towards loss of love and affection. The respondents 2 to 4 are entitled to a sum of Rs.40,000/- each towards loss of love and affection. The amounts awarded by the Tribunal under other heads are just and reasonable and hence, they are confirmed. Thus, the compensation awarded by the Tribunal is modified as follows:

S.	Description	Amount	Amount	Award
No		awarded by	awarded by	confirmed or
		Tribunal	this Court	enhanced or
		(Rs)	(Rs)	granted
1.	Loss of dependency	28,35,000/-	24,57,000/-	Reduced

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2.	Loss of consortium	40,000/-	40,000/-	Confirmed
3.	Funeral expenses	15,000/-	15,000/-	Confirmed
4.	Loss of estate	15,000/-	15,000/-	Confirmed
5.	Loss of love and affection to respondents 2 to 4	-	1,20,000/-	Granted
	Total	Rs.29,05,000/-	Rs.26,47,000/-	Reduced by Rs.2,58,000/-

18.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.29,05,000/- is hereby reduced to Rs.26,47,000/-. The appellant-Insurance Company is directed to deposit the modified 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.609 of 2013, on the file of the Motor Accident Claims Tribunal, Principal District Court, Perambalur. On such deposit, the respondents 1 to 3 & 5 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 share of the minor 4^th respondent is directed to be deposited in any one of

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the Nationalized Banks, till the minor 4^th respondent attains majority. On

such deposit, the 1^st respondent, being the Mother of the minor 4^th respondent is permitted to withdraw the accrued interest once in three months for the welfare of the minor 4^th respondent. The appellant is permitted to withdraw the excess amount lying in the credit of M.C.O.P.No.609 of 2013, if the entire award amount has been already deposited by them. This appeal is dismissed as against the respondents 7 & 8. Consequently the connected Miscellaneous Petition is closed. No costs.

(V.M.V., J) (S.S., J)

22.06.2022

krk Index : Yes / No Internet : Yes / No

To

1.The Principal District Judge, Motor Accidents Claims Tribunal, Perambalur.

2.The Section Officer, VR Section, High Court, Madras.

V.M.VELUMANI, J.

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and S.SOUNTHAR, J.

krk

C.M.A.No.2429 of 2021

22.06.2022

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