Pushpa v. Umapathy

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.08.2019

CORAM:

THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM C.M.A.Nos.3040 and 3041 of 2019 C.M.A.No.3040 of 2019:

1.Pushpa 2.Suganthi 3.Ramesh 4.Ravikumar 5.Ilayrasu .. Appellants/Petitioner Vs.

1.Umapathy 2.The Branch Manager, The New India Assurance Company Ltd., Bye Pass Road, Dharmapuri Town, Dharmapuri District.

3.Madhesh 4.The Branch Manager, The Oriental Insurance Company Ltd., Door No.3-L, Siddha Veerappa Chetti Street, Dharmapuri Town, Dharmapuri Taluk & District.

.. Respondents/Respondents C.M.A.No.3041 of 2019:

Nagaraj .. Appellant/Petitioner Vs.

1.Umapathy 2.The Branch Manager, The New India Assurance Company Ltd., Bye Pass Road, Dharmapuri Town, Dharmapuri District.

3.Madhesh 4.The Branch Manager, The Oriental Insurance Company Ltd., Door No.3-L, Siddha Veerappa Chetti Street, Dharmapuri Town, Dharmapuri Taluk & District.

.. Respondents/Respondents Common Prayer: These Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the common judgment and decree dated 25.03.2019 made in M.C.O.P.Nos.435 & 666 of 2016 on the file of the Motor Accident Claims Tribunal, Special District Court, Dharmapuri.

For Appellant in both CMAs :

Mr.C.Prabhakaran C O M M O N J U D G M E N T These Civil Miscellaneous Appeals have been filed against the common award dated 25.03.2019 made in M.C.O.P.Nos.435 & 666 of 2016 on the file of the Motor Accident Claims Tribunal, Special District Court, Dharmapuri.

2.Both the appeals are arising out of the common award and hence they are disposed of by this common judgment. The parties are referred to as per their respective ranks in the claim petitions, for the sake of convenience.

3.The appellants are claimants in M.C.O.P.No.435 of 2016 and appellant is claimant in M.C.O.P.No.666 of 2016 on the file of the Motor Accident Claims Tribunal, Special District Court, Dharmapuri. The claimants in C.M.A.No.3040 of 2019 and the claimant in C.M.A.No.3041 of 2019 filed the above said claim petitions claiming a sum of Rs.20,00,000/- and Rs.10,00,000/- respectively as compensation for the death of one Pandurangan and for the injuries sustained by the claimant in C.M.A.No.3041 of 2019 in the accident that took place on 23.04.2016. 4.The Tribunal considering the pleadings, oral and documentary evidence held that the accident occurred due to the rash and negligent riding by both the riders of the motorcycle bearing Reg.No.TN-29-AZ-4253 belonging to Nagaraj as well as the rider of the motorcycle bearing Reg.No.

TN-29-BC-3778 belonging to the 3rd respondent and fixed 60% negligence on the part of Nagaraj and 40% on the part of the 3rd respondent and directed the 4th respondent/Insurance Company to pay 40% of the award amount to the claimant(s) at the first instance and recover the same from the 3rd respondent in M.C.O.P.Nos.435 and 666 of 2016.

5.Not being satisfied with the amounts awarded by the Tribunal, and fixing 60% contributory negligence the claimant(s) have come out with the present appeal seeking enhancement of compensation and setting aside 60% contributory negligence. 6.The learned counsel appearing for the appellants contended that there are three vehicles involved in the accident and the driver of the 1st respondent lorry insured with the 2nd respondent have driven vehicle in a rash and and negligent manner and caused the death of pillion rider and caused injuries to the appellant, this aspect was not considered by the Tribunal. The Tribunal has exonerated the liability of the 2nd respondent which is not proper.

The rider of the two wheeler belonging to the 3rd respondent insured with the 4th respondent did not follow traffic rules and came in a high speed and uncontrollable manner and thereby hit against a two wheeler and in the said impact the pillion rider of the two wheeler was thrown away from the vehicle and sustained injuries. While the manner of accident has categorically shows that the rider of the two wheeler insured with the 4th respondent and the driver of the lorry insured with 2nd respondent are only contributed the accident. The finding of the Tribunal regarding the contributory negligence is liable to be set aside and negligence to be fixed only against the respondents jointly.

The grievance raised by the appellant is that the accident caused only due to the negligent act of the rider of the two wheeler insured with the 4th respondent and the death was caused only by the driver of the lorry insured with the 2nd respondent. The other aspect aggrieved by the appellants is that the sum awarded by the Tribunal under different heads are meagre and prayed for enhancement of compensation. 7.Heard Mr.C.Prabhakaran, learned counsel for the appellants and perused entire materials on record.

8.On perusal of records, it is observed that the accident occurred on 23.04.2016, one Nagaraj who is the petitioner in M.C.O.P.No.666 of 2016 was riding the two wheeler bearing Reg.No.TN-29-AZ-4253 along the Kadathur -Dharmapuri road. At that time the deceased Pandurangan was seated as a pillion and the rider of the said two wheeler i.e. the petitioner in M.C.O.P.No.666 of 2016 was tried to over take the on going lorry bearing Reg.No.TN-29-BZ-0223 which belonging to the 1st respondent and insured with the 2nd respondent. While the petitioner/Nagaraj overtaking the lorry, another two wheeler bearing Reg.No.TN-29-BC-3778 belonging to the 3rd respondent came from the opposite side. The said two wheeler was insured with the 4th respondent. These facts are not disputed by both sides. While the petitioner/Nagaraj overtook the lorry, due to rash and negligent driving of the lorry it dashed against the two wheeler

of Nagaraj, due to which the deceased Pandurangan fell down and was run over the wheels of the lorry. Nagaraj also sustained injuries in the accident. FIR was registered against Nagaraj. The said Nagaraj clearly deposed that the two wheeler bearing Reg.No.TN-29-BC-3778 which came from the opposite direction hit and dashed against his two wheeler. The Tribunal considering the pleadings, oral and documentary evidence held that the accident has occurred only due to rash and negligent riding by both the riders of motorcycle belonging to the claimant in C.M.A.No.3041/2019 and the 3rd respondent. From the award of the Tribunal, it is seen that the accident occurred only due to the contributory negligence of Nagaraj, who was the rider of two wheeler bearing Reg.No.

TN-29-AZ-4253 in which the deceased Pandurangan was riding as pillion and rider of 3rd respondent's two wheeler. In view of the same, the Tribunal fixed 60% negligence on the part of claimant/Nagaraj in C.M.A.No.3041 of 2019 and 40% negligence on the part of the rider of the two wheeler belonging to the third respondent and the same is not erroneous.

9.As far as quantum of compensation is concerned the deceased was aged 55 years at the time of accident. The appellants in the claim petition have stated that the deceased was working as a maestry and was earning a sum of Rs.15,000/- per month. In the absence of any materials, the Tribunal considering that the accident is of the year 2016, age and avocation of the deceased is fixed, the notional income of the deceased at Rs.7,500/- per month, applied multiplier '11'. There were five dependents, as per the Sarla Verma's case, 1/4th deducted towards personal expenses and by including 10% towards future prospects and awarded a sum of Rs.8,16,750/- towards pecuniary loss which is in order. The total compensation awarded by the Tribunal in M.C.O.P.No.435 of 2016 under different heads are not excessive and does not require any interference by this Court.

10.As far as quantum of compensation in M.C.O.P.No.666 of 2016 is concerned, the Medical Board assessed the claimant suffered 10% disability. The Tribunal granted compensation towards 10% disability at Rs.3,000/- per percentage, (Rs.3,000/- x 10%) Rs.30,000/- towards disability which is not excessive. The Tribunal after considering both oral and documentary evidence in proper perspective, has awarded compensation which is not meagre. The total compensation awarded by the Tribunal in M.C.O.P.No.666 of 2016 under different heads are not excessive and does not require any interference by this Court. 11.In the result, both the appeals are dismissed. The compensation awarded by the Tribunal at Rs.8,86,750/- (i.e. 40% of the award amount of Rs.3,54,700/- in M.C.O.P.No.435/2016) and

Rs.1,46,500/- (i.e. 40% of the award amount of Rs.58,600/- in M.C.O.P.No.666/2016) are confirmed. No costs. 12.The 4th respondent/Oriental Insurance Company Ltd. is directed to deposit 40% of the award amount in both appeals (i.e. Rs.3,54,700/- in M.C.O.P.No.435/2016 and Rs.58,600/- in M.C.O.P.No.666 of 2016) 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 common judgment to the credit of M.C.O.P.Nos.435 & 666 of 2016 on the file of the Motor Accident Claims Tribunal, Special District Court, Dharmapuri. On such deposit, the claimants in M.C.O.P.No.

435 of 2016 are permitted to withdraw their respective share of the award amount, as per the ratio of apportionment fixed by the Tribunal, along with proportionate interest and costs, after adjusting the amount, if any already withdrawn, by filing necessary applications before the Tribunal. On such deposit, the claimant in M.C.O.P.No.666 of 2016 is permitted to withdraw the award amount, along with interest and costs, after adjusting the amount, if any already withdrawn, by filing necessary applications before the Tribunal.

s/d- Assistant Registrar True Copy Sub-Assistant Registrar mtl To 1.The Special District Judge, Motor Accident Claims Tribunal, Dharmapuri.

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

+2 Ccs to Mr.C.Prabhakaran, Advocate sr 68872, 68873. C.M.A.Nos.3040 and 3041 of 2019 PP(CO) SP(09/06/2020)