Shri Ram General Insurance Company Ltd. Vs N.K.Mohammed

ICICI Lumbard Motor Insurance Company Limited Zenith House, Keshvarao Khade Marge Mahalakshmi Mumbai, Mumbai – 400 034. ... 5^th Respondent/4^th Respondent

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Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act 1988 against the Judgment and Decree dated 29.06.2020 made in M.C.O.P.No. 73 of 2013 on the file of the Motor Accident Claims Tribunal cum Special District Court for Motor Accident Claims Cases at Krishnagiri.

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For Appellant : Mr. S.Dhakshnamoorthy For RR 1 & 2 : Mr. R.Sagadevan For 3^rd Respondent : Mr.P.M.Durai Samy For 5^th Respondent : Mr.Micheal Viswasam for Mr.R.V.Sivaraj

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J U D G M E N T

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(Order of the Court was made by C.V.KARTHIKEYAN , J . )

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The second respondent, Shri Ram General Insurance Company Ltd., in M.C.O.P.No. 32 of 2013 on the file of the Motor Accident Claims Tribunal, Krishnagiri / Special District Court cum Motor Accident Claims Tribunal at Krishnagiri is the appellant herein, aggrieved by the award dated 29.06.2020.

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M.C.O.P.No. 73 of 2013 had been filed by the claim petitioners under Section 166 of the Motor Vehicles Act seeking compensation for the death of their son Nishadh, who died in a motor accident which took place on 18.01.2010. The deceased Nishadh and his friends Arunkumar and Ashwath, who were all working in a company called JSLAN Technologies Pvt Ltd., at Bangalore were travelling in a TATA Indigo Car bearing Registration No. TN 79 0506 from Hosur to go to Uthangarai on 18.01.2010 after completing their work at Bangalore, to see the parents of Arunkumar. The car was driven by Arunkumar. While proceeding in the Hosur to Krishnagiri National Highways Road, in front of Ashok Leyland Unit II, a Swaraj Mazda Medium Goods Vehicle bearing Registration No. TN29 J 0461 belonging to the first respondent in the claim petition and insured with the second respondent/appellant herein driven in a rash and negligent

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manner suddenly crossed the National Highway from Ashok Leyland Unit -II to go to Hosur from north to south and owing to that sudden crossing of the vehicle, the TATA Indigo car driven by Arunkumar was forced to collide with the right rear wheel of the Swaraj Mazda Medium goods vehicle inspite his best efforts to apply sudden break. Due to the accident, the driver of the car (Arun Kumar) and also the son of the claimants, Nishadh, died on the spot and the other passenger Aswath suffered serious injuries all over the body. Claiming that the accident had occurred only owing to the rash and negligent manner in which the Swaraj Mazda Medium Goods Vehicle was driven, the claim petition has been filed seeking compensation of a sum of Rs.30,00,000/- together with interest.

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3. It had been contended on behalf of the respondents that with respect to the said accident, an FIR had been registered wherein the driver of the vehicle Arun Kumar was categorised as the tortfeaser. It was also contended that the occupants in the car were under the influence of alcohol. It was further contended that the quantum of compensation claimed was excessive. The liability of the driver of the Swaraj Mazda vehicle was denied and it was claimed that the claimants should prove the same.

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4. During trial, the first claimant N.K.Mohammed examined himself as PW-1. He also examined Asbak, the eye witness as PW-2. With respect

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to the employment of the deceased, PW-3 Lavanya, Senior Software Engineer was examined. The complainant, who had lodged the complaint leading to the registration of the FIR, P.Ashok Kumar was examined as PW-4. The true copy of the FIR was marked as Ex.P-1 and the xerox copy of the legal heir certificate was marked as Ex.P-3 and the Insurance Policy of the first respondent vehicle was marked as Ex.P-4. The documents relating to the salary of the deceased were marked as Ex.P-16 and the cash flow register of the company where the deceased was worked was marked as Ex.P-19. The qualification of the deceased was marked as Ex.P-18. The driver of the Swaraj Mazda motor vehicle was examined as RW-1. The Road Transport Office, Junior Assistant was examined as RW-2. The Motor Vehicle Inspection Report of the Swaraj Mazda motor vehicle was marked as Ex.P-5.

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5 . On appreciation of the evidence, the Tribunal had held that the accident occurred only owing to the sudden entry into the National Highways from Ashok Leyland Unit-II by the Swaraj Mazda Motor Vehicle, who joined the road to turn right and owing to the said sudden entry, the TATA Indigo vehicle driven by Arun Kumar had collided on the rear right side wheel of the Swaraj Mazda Motor Vehicle.

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6. The evidence was examined in entirety and it was very clearly held that the accident occurred only owing to the rash and negligent manner in which the Swaraj Mazda Motor Vehicle was driven. With respect to the FIR, wherein the tortfeaser was mentioned as Arunkumar, the driver of the Tata Indigo vehicle, the Tribunal found that PW-4, who was the complainant, had stated that he had only signed on the places where the police had asked him to sign. He therefore disowned the contents of the complaint. The Tribunal noted that the respondents had not examined any police official to speak about the manner in which the complaint was lodged and FIR was registered. In the absence of such evidence, the Tribunal held that no reliance could be placed on the averments made in the complaint and in the FIR.

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7. With respect to the income earned, the Tribunal held that the Company had been newly formed and therefore, had determined the monthly income of the deceased at Rs.17,000/-, though it was claimed that it was Rs.34,102/-. After deducting one half towards personal expenses and adding 40% towards future prospects, the monthly income was arrived at Rs.11,900/-. The multiplier was fixed at Rs.18/-, since the age of the deceased was 25 years. Amount of Rs.25,70,400/- (Rs.11,900 x 12 x 18)

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was awarded for loss of dependency and another sum of Rs.20,000/- was awarded for the loss of estate and a sum of Rs.15,000/- was awarded towards funeral expenses. A further sum of Rs.30,000/- was awarded towards love and affection. A total compensation of Rs.26,35,400/- was awarded. The liability was fixed on the appellant herein/the insurer of the Swaraj Mazda Motor Vehicle.

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8 . The learned counsel for the appellant after taking the Court through the facts of the case pointed out that in the FIR, the driver of the TATA Indigo Vehicle wherein the deceased was a passenger was shown as the tortfeaser and therefore urged that the liability should have also been fixed also on the Insurance Company of the TATA Indigo vehicle. But however, the evidence of PW-4 is very clear and even if that evidence is to be rejected, the appellants herein had not examined any police official to speak about the veracity of the complaint lodged and the FIR registered.

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9. The facts relating to the accident make it evident that the accident occurred only owing to the sudden entry into the National Highways of the Swaraj Mazda Motor Vehicle owing to which the TATA Indigo vehicle where the deceased was a passenger collided on the rear right wheel of the Swaraj Mazda Motor Vehicle. This is an issue on fact. We are of the firm

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opinion that the Tribunal had come to a correct decision fixing the liability only on the driver of the Swaraj Mazda Motor Vehicle.

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10 . A specific issue had been framed by the Tribunal whether the accident was the result of rash and negligent driving by the TATA Indigo vehicle and after examining the facts, the Tribunal had stated that the accident did not occurr owing to such rash and negligent driving of the TATA Indigo Vehicle and as a matter of fact had come to a conclusion that the vehicle was not also driven in a rash and negligent manner.

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11 . With respect to the quantum of compensation, we hold that the Tribunal had correctly held that the salary would be only Rs.17,000/- even though evidence had been produced under Exs. P-16 and P-20 that the monthly salary was Rs.34,102/-. One half of the amount had been deducted towards personal expenses and 40% had been added towards future prospects. The Tribunal had applied the correct multiplier, taking into consideration the age of the deceased at 25 years. The other heads of compensation had also been correctly granted by the Tribunal.

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12. The compensation granted is :

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