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Madras High CourtCMA/1749/2020dismissed

The Manager v. S.Durga Devi

2020-12-04Honourable Mr Justice V. Bharathidasan7 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 27.11.2020 PRONOUNCED ON: 04.12.2020

CORAM

THE HON'BLE MR.JUSTICE V.BHARATHIDASAN C.M.A.Nos.1749 & 1750 of 2020 and CMP.Nos.12485 & 12848 of 2020 CMA No.1749 of 2020 The Manager, M/s. National Insurance Company Ltd., Motor TP Claims, Murugesa Naicker Complex, No.66, Greams Road, Chennai 600 006 ... Appellant / 3rd respondent Vs.

1. Mrs. S. Durga devi

2. Minor S.Sai Darshini

3. Minor S.Sai Vaishnavi (Minors rep.by Mother & NG Durga Devi

4. Mrs. Kalavathi ... Respondents 1 to 4 / Petitioners 1 to 4

5. Mr. K. Jayakumar

6. M/s. Bagavathi Transport, rep. by its Proprietor, No.7, (Old No.4) , IV Main Road, Namakkal, 637 001 .... Respondents 5 & 6/ Respondents 1 and 2 CMA No.1750 of 2020 The Manager, M/s. National Insurance Company Ltd., Motor TP Claims, Murugesa Naicker Complex, No.66, Greams Road, Chennai 600 006 ... Appellant / 3rd respondent Vs.

1. Mrs. S. Uma Mageshwari

2. Minor S. Vinoth Surya

3. Minor S.Sureka Devi (Minors rep.by Mother & NG Uma Mageshwari)

4. Mrs. Dhanammal ... Respondents 1 to 4 / Petitioners 1 to 4

5. Mr. K. Jayakumar

6. M/s. Bagavathi Transport, rep. by its Proprietor, No.7, (Old No.4) , IV Main Road, Namakkal, 637 001 .... Respondents 5 & 6/ Respondents 1 and 2 PRAYER: - Both the Civil Miscellaneous Appeals have been preferred under Section 173 of Motor Vehicles Act, 1988 against the judgment and decree dated 03.12.2019 in MCOP.Nos.77 & 25 of 2019 on the file of the Motor Accident Claims Tribunal (Special District Court, at Tiruvallur.

For Appellant : Mr. J.Michael Visuvasam in both the appeals

J U D G M E N T

Both the appeals have been filed by the Insurance Company challenging the award passed by the Motor Accidents Claims Tribunal, Special District Court, Tiruvallur, in MCOP No.77 & 25 of 2019, dated 03.12.2019.

2. The brief facts leading to file the appeals are as follows:

It is the case of fatal accident involving two persons. On 20.10.2018, at about 3.15 p.m., while the deceased Saravanan, who is the husband, father and son of the claimants in MCOP No.77 of 2019, has driven a two wheeler, the another deceased, by name, Suresh, who is the husband, father and son of the claimants in MCOP No.25 of 2019, was a pillion rider, proceeding from Ikkadu Kandigai to Tiruvallur. Near Krishna Cannel Bridge, at Ikkadu Village, a lorry bearing Registration No. TN 28 AK 4198, owned by one Jeyakumar, who was shown as a first respondent in both the claim petitions, which was insured with the appellant Insurance Company, was broke down and standing in the middle of the road without any proper indication, and the two wheeler dashed against the lorry, due to which, the pillion rider Suresh succumbed to injuries on the spot and the rider Saravanan suffered multiple injuries all

over the body, immediately he was taken to the Government Hospital, Tiruvallur, thereafter, he was shifted to Government Hospital, Chennai, where he died on 25.10.2018. At the time of accident, the deceased Suresh (pillion rider) was 38 years old and he was working in a private Export Company at Chennai and earning a sum of Rs.15,000/- per month and he was the sole breadwinner of the family. The deceased Saravanan(rider) was 31 years old and he was working as an operator in a private Aqua Company and earning a sum of Rs.20000/- per month and he was the sole bread winner of the family. Hence, claiming compensation of Rs.50,00,000/- each, the claim petitions have been filed.

3. A joint trial was conducted and the owner of the vehicle remained exparte. Insurance Company contested the claim petitions on the ground that, the accident has taken place only due to the negligent driving of the deceased Saravanan, due to break down, the lorry was parked in the road with proper indication, but the deceased Saravanan has driven the two wheeler in a rash and negligent manner without noticing the stationary lorry, dashed against the lorry, absolutely, there is no negligent on the part of the driver of the lorry, hence, they are not liable to pay the compensation. That apart, the Insurance Company also disputed the monthly income of the deceased and contended that the compensation claimed by them is speculative.

4.In order to prove their case, the claimants examined 5 witnesses and marked as many as 22 exhibits and on the side of the appellant/Insurance Company, neither any witness nor document has been marked.

5. The Tribunal, after considering the materials available on records, came to a conclusion that the lorry was parked in the middle of the road without any proper indication and the deceased also without noticing the parked lorry, dashed against the same and he has also contributed to the accident, and fixed 90% negligence on the driver of the lorry and 10% negligence on the rider of the two wheeler.

6. In respect of quantum of compensation, the Tribunal fixed the monthly income of the deceased Suresh (MCOP No.25/2019) at Rs.9000/- and after adding 40% of the actual salary towards future prospects, after deducting 1/4 towards the personal expenses of the deceased, the notional monthly income was fixed at Rs.9450/-, and applying the multiplier of 15, calculated the loss of dependency at Rs.17,01,000/-. Granted a sum of Rs.40000/- to the wife towards loss of consortium and Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate and Rs.1,50,000/- towards loss of love and affection to the minor children and mother of the deceased, the

Tribunal fixed the total compensation payabe to the claimants at Rs.19,21,000/- and awarded 90% of compensation amount of Rs.17,28,900/- to the claimants.

7. So far as the claimant in MCOP No.77 of 2019, the Tribunal fixed the monthly income of the deceased at Rs.9000/-, adding 40% of the actual salary towards future prospects, and deducting 1/4 towards the personal expenses of the deceased, the notional monthly income was fixed at Rs.9450/- and applying the multiplier of 16, calculated the loss of dependency at Rs.18,14,400/-. Granted a sum of Rs.40000/- to the wife towards loss of consortium and Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate and Rs.1,50,000/- towards loss of love and affection to the minor children and mother of the deceased, the Tribunal fixed the total compensation payable to the claimants at Rs.20,34,400/- and awarded 90% of compensation amount of Rs.18,30,960/- to the claimants. Feeling aggrieved with the orders passed by the Tribunal, the Insurance Company is before this Court with these appeals.

8. The learned counsel appearing for the appellant would submit that the accident has taken place only due to the negligent driving of the two wheeler. Due to breakdown, the lorry was standing with proper indication, but the rider of the two wheeler without noticing the parked lorry dashed from behind the lorry. In the above circumstances, no negligence can be fixed on the driver of the lorry. Only due to the rash and negligent driving of the rider of the two wheeler, the accident has taken place. Even though the Tribunal accepted the negligence on the part of the two wheeler, fixed only 10% of contributory negligence. As the accident has taken place only due to the rash and negligent act of the two wheeler, the Tribunal ought to have fixed the entire negligence on the two wheeler.

So far as the quantum of compensation is concerned absolutely, there is no evidence to prove the monthly income of the deceased in both the cases. The Tribunal arbitrarily fixed the monthly income and awarded an exorbitant compensation, which is liable to be reduced.

9. I have considered the submission of hte learned counsel for the appellant and perused the materials available on records carefully.

10. It is an admitted case that the lorry was parked in the middle of the road due to break down. The eyewitness to the occurrence was examined as P.W.3, wherein, he has clearly stated that the lorry was parked in the middle of the road without any barricade or indication and no body was there to clear the traffic. At that time, the motor cycle came without noticing the parked lorry, dashed against the lorry, immediately, he

called ambulance and sent them to Government Hospital, Tiruvalur and also informed to the family. From his evidence, it could be seen that the lorry was standing in the middle of the road without proper indication.

11. Recently, the Ministry of Road Transport and Highways, had issued a regulation for Driving of Motor vehicles called, Motor Vehicle (Driving) Regulation 2017. ( herein after called as Regulation). Rule 22 of the Regulation speaks about stopping and parking of the vehicle and it also speaks about the places where the vehicles are not to be parked. Rule 28 of the Regulation speaks about the precautions to be done in case of the vehicle break down, which reads as follows :-

28. Vehicle Breakdown : In case a vehicle with more than two wheels has broken down at a place where it can be recognised in time as a stationary obstacle;- i. the hazard warning lights of the vehicle shall be switched on immediately;

ii. On the highways and major road with fast speed, reflective traffic warning triangles shall be placed at a distance of fifty meters behind the broken down vehicle; and iii. if there is a bend on the road where the vehicle is parked, reflective traffic warning triangles shall be placed before the bend. "

11. As per the said rule, when a vehicle having more than two wheels has broken down at a place where it can be recognized in time as a stationary obstacle, the hazard warning lights should be switched on immediately; on highways or major roads, a triangles shall be placed at the distance of 50 meters behind the broken down vehicle and if there was a bend on the road where the vehicle is parked, reflective traffic warning triangles shall be placed before the bend. But, in the case on hand, no such indication was placed behind the stationary lorry, which is clear violation of the regulation. Even though, it is submitted by the learned counsel for the appellant that the rider of the two wheeler came in a rash and negligent manner and dashed against the lorry, absolutely, there is no evidence to prove the same.

In the said circumstances, the Tribunal has come to the conclusion that the driver of lorry has parked the broken down lorry in the middle of the road without any indication and hence, the Tribunal fixed 90% negligence on the driver of the lorry and this Court finds no illegality in it.

12. So far as the quantum of compensation is concerned, though it is stated that both the deceased were employed in a private company, no evidence is available to establish their monthly income. Considering the circumstances, that the accident has taken place in the year 2018, and both the deceased were employed in private companies, the Tribunal opined that the employee would get monthly income of Rs.9000/- and the monthly income fixed by the Tribunal, in the opinion of this Court, is not excess. That apart, the Tribunal following the guidelines issued by the Hon'ble Supreme Court in the case of Sarala Verma and others /vs/ Delhi Transport Corporation and another reported in 2009 (2) TN MAC 1 (SC) and also the case of National Insurance Company Ltd /vs/ Pranay Sethi reported in 2017 (2) TNMAC 609 and considering the age of the deceased, awarded 40% of the monthly salary towards future prospects and considering the number of claimants deducted 1/4 and after applying the multiplier method calculated the loss of dependency and there is no illegality in it.

13. So far as the loss of consortium, the Tribunal awarded a sum of Rs.40,000/- towards the wife of the deceased and Rs.50,000/- each to the minor children and mother of the deceased. The Hon'ble Supreme Court, in the case of United India Insurance Company /vs/ Satinder Kaur @ Satwinder Kaur and others in C.A.No.2705 & 2706 of 2020 , dated 30.06.2020, has held that the children are entitled for parental consortium and mother is entitled for filial consortium of Rs.40,000/- each. However, the Tribunal has granted Rs.50,000/-, which is Rs.10,000/- over and above the amount fixed by the Hon'ble Supreme Court. Considering the age of the minor children and the mother of the deceased, this Court does not want to interfere with the same. In the said circumstances, this Court finds no illegality in the order passed by the Tribunal and it does not require any interference and the appeals are only deserve to be dismissed.

14. In the result, both the Civil Miscellaneous Appeals are dismissed. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CS-V) //True Copy// Sub Assistant Registrar mrp

To Motor Accident Claims Tribunal , Special District Court, Tiruvallur.

+1cc to Mr.J.Michael Visuvasam, Advocate, S.R.No.39173 C.M.A.Nos.1749 & 1750 of 2020 CNR(CO) CB(19/08/2021)