The Divisional Manager v. Tmt Jayaseeli

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.01.2020

CORAM:

THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN C.M.A.No.1209 of 2012 and M.P.No.1 of 2012 The Divisional manager, M/s. United India Insurance Co.Ltd., Door No.95, Big Street,1st Floor, R.V.K.Building, 1st Floor, Tiruvannamalai Town and District. ... Appellant/R2 Vs.

1.Tmt.Jayaseeli, 2.Minor.Logaprasalla 3.Minor.Nithis Kumar ...RR1 to 3/Petitioner 1 to 3 (Minors 2nd and 3rd are represented by their mother/next friend/Guardian Jayaseeli) 4.Thiru. Pitchai. ... R4/Petitioner No.4 5.Chinnammal 6.P.Krishnan ...RR5 & 6/Petitioner V and R1 Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 13.10.2011 made in M.C.O.P.No.884 of 2010 on the file of Motor Accident Claims Tribunal, District Judge, Tiruvannamalai District.

For Appellant : Mr.J.Chandran For Respondents : Not ready in notice

JUDGMENT

Aggrieved against the judgment and decree by the Motor Accident Claims Tribunal, in M.C.O.P.No.884 of 2010, by which the Tribunal has fastened the liability on the Insurance Company and arrived at the quantum of Rs.7,18,000/- the Insurer/appellant is before this Court.

The brief facts of the case are as follows:

2. On 05.09.2010, at about 06.00 p.m., while the deceased Gabriel Arokiaraj was traveling in the bus TN25F9703 to purchase house articles, the driver of the said bus drove the bus from Tiruvannamalai to Kallakurichi Road, near Valavachanur Seed Farm in a very rash and negligent manner and turned the bus in a curve so rashly and hence the deceased fell down from the bus and sustained grievous injuries on his head, bleeding from the ears and injury on the left knee. The deceased was immediately taken to the Government Hospital, Tiruvannamalai, for treatment and he died at the hospital, due to the fatal injuries sustained by him. The accident had taken only due to the rash and negligent driving of the first respondent's bus driver.

3. The deceased Gabriel Arokiaraj was aged about 35 years and was a Mason/Building Worker, and earned a sum of Rs.7,500/- p.m. The accident was solely due to the rash and negligent driving of the first respondent's bus driver. The above vehicle was insured with the 2nd respondent. Hence, as per the principle of vicarious liability, both the respondents are liable to pay compensation of Rs.10,00,000/-.

4. The learned counsel for the appellant would submit that the compensation of Rs.7,18,000/- is highly excessive. The Tribunal ought to have held that the accident had occurred only due to the act of the deceased. The Tribunal had wrongly taken into account Ex.P1 and fastened the negligence against the bus driver and in any event the compensation arrived at is on the higher side and it was to be considerably reducted.

5. Per contra, the learned counsel for the claimants/respondents 1 to 5 submitted that the Tribunal has taken into account each and every exhibit and awarded a sum which is just and proper and it cannot be said to be just in the light of the decision rendered in National Insurance Co. vs. Pranay sethi and others reported in 2017 (2) TNMAC 601(SC). He also relied on the decision in M/s.Bharathi Axa General Insurance Company Limited vs. Jayalakshmi @ Panchalai and others in CMA.No.3629 of 2013 and contended that even though the claimants have not challenged the quantum of compensation awarded by the Tribunal by way of filing an appeal or crossobjection, this Court has got powers and jurisdiction under Order 41 Rule 33 and Section 151 of the Code of Civil Procedure and Article 227 of the Constitution of India to enhance the compensation, if it is found that just compensation was not awarded. Hence, the amount awarded by the Tribunal cannot be said to be on the higher side.

6. This Court has considered the submissions of the learned counsel for the appellant and perused the materials available on record.

7. It is seen that, from the evidence of P.W.2, Jayavel, the occurrence witness who would depose that on 05.09.2010, when the deceased Gabriel Arokiaraj was returning home, after purchasing articles, in the Srinivasa bus bearing Registration No.TN25F9703 and the deceased was standing on the front side foot board, when the bus going on Tiruvannamalai to Kallakurichi Road, at Valavachanur Pu.Uo.Sa.

Nagar, Government Seed Farm, in a curve, the driver of the said bus drove in a rash and negligent manner, without sounding horn, and applied sudden brake, and due to the impact, the deceased lost his balance, and he was thrown out from the bus, and got grievous injuries on his left side head, right ear, right leg knee and all over the body and he was taken to the Tiruvannamalai Government Hospital in a serious condition and after severe treatment, he was taken to the Chennai Government Hospital, and there he died on 06.09.2011. The accident had taken only due to the rash and negligent driving of the first respondent's bus driver. The Tribunal has rightly taken note of the above aspects and fastened the liability on the appellant.

There are no records to show that the appellant is not liable to pay compensation even before the Tribunal and before this Court.

8. As far as the quantum of compensation is concerned, as per Ex.P4, the deceased Gabriel Arokia Raj was aged about 35 years at the time of the accident. There is no contra evidence and the same is accepted. Accordingly, the multiplier of 16 is adopted. At the time of the accident, the deceased is said to have been doing Building Work (mason) and earning a sum of Rs.7,500/- per month. There is no evidence to prove the same. Considering the nature of avocation, the deceased would have earned a sum of Rs.4.500/- and he would have contributed a sum of Rs.3375/- to his family after meeting his personal expenses, as per the decision reported in 2009 (2) TNMAC SC 1 Smt.Sarala Verma and others Vs.Delhi Transport Corporation and another.

9. The Tribunal has awarded a sum of Rs.20,000/- towards loss of consortium and the same is hereby enhanced to Rs.40,000/-. The award passed by this Court under various heads is extracted hereunder:

Sl.No Heads Award amount 1.

Loss of earnings Rs.3375 X 12 X 6,48,000/- 2.

Loss of Consortium 40,000/-

Sl.No Heads Award amount 3.

Loss of Love and Affection Rs.10,000 X 4 40,000/- 4.

Funeral Expenses & Transport Charges 10,000/- Total 7,38,000/-

10. The quantum arrived at by the Tribunal was based on the evidence and documents produced. In view of the fact that nothing is forthcoming on the side of the appellant to offset the quantum arrived at by the Tribunal, the quantum arrived at Rs.7,18,000/- is hereby enhanced to Rs.7,38,000/-.

11. In the result, this Civil Miscellaneous Appeal is dismissed and the compensation awarded by the Tribunal at Rs.7,18,000/- is hereby enhanced to 7,38,000/- together with interest at the rate of 7.5% per annum from the date of petition till date of deposit. The first respondent is entitled to a sum of Rs.2,30,000/- and the second and third respondents are entitled to get a sum of Rs.1,60,000/- each and the fourth and fifth respondents are entitled to get a sum of Rs.94,000/- each. The appellant/Insurance Company is directed to deposit the entire enhanced award amount now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this Judgment.

On such deposit, the claimant is permitted to withdraw the enhanced award amount along with interest and costs, less the amount already withdrawn, if any. The minor share amount shall be deposited in any one of the nationalized bank till they attain majority. The first respondent who is the mother of the minors / natural guardian shall withdraw the interest of minor share amount once in 6 months and spend the same for the welfare of the minors. The minors are at liberty to withdraw their share after attaining majority, after filing the formal petition before the Trial Court. No costs. Consequently, connected Miscellaneous Petition is closed.

Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar

sbn To 1.The District Judge, Motor Accident Claims Tribunal, Tiruvannamalai.

2.The Section Officer, V.R Section, High Court, Madras.

C.M.A.No.1209of 2012 and M.P.No.01 of 2012 ev[co] srg 02/09/2021