The Branch Manager v. Saraswathi @ Sarasu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2023
CORAM
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN and M.P No.1 of 2014 The Branch Manager The Oriental Insurance Co. Ltd., CBO 18, Swami Ram, Tirath Nagar Jhandewallah Extension, New Delhi-55.
.. Appellant Vs.
1.Saraswathi @ Sarasu 2.Ram Kumar Kaushik 3.Pasupathi 4.The Branch Manager The United India Insurance Company Ltd., Branch Office No.1170, Mettur Road II Floor, Muthiah Complex Erode-638 011.
..Respondents Civil Miscellaneous Appeal is preferred under Section 173 of the Motor Vehicles Act, 1988, against the fair and decreetal order dated 17.07.2013 1/10
made in MACTOP No.450 of 2013 on the file of the Motor Accident Claims Tribunal/ Special Sub Judge, Krishnagiri.
For Appellant : Mr.M.Krishnamoorthy For Respondents : No Appearance for R1 to R3 M/s.I.Malar for R4
J U D G M E N T
The appeal on hand is filed against the impugned award dated 17.07.2013 passed in MCOP No.450 of 2013, on the file of the Motor Accident Claims Tribunal/Special Sub Judge, Krishnagiri.
2. The Oriental Insurance Company Limited has filed this appeal questioning the negligence and quantum of compensation.
3. The accident occurred on 24.12.2007 at 3.30 hours, at Krishnagiri to Vellor Road, near Athur-Kuppam petrol bunk beyond Natrampalli. The Natrampallu Police Station registered a case in Crime No.973 of 2007 for the offences under Sections 279, 338 and 304(A) IPC. The 1st 2/10
respondent/claimant was travelling along with other family members to go to Tirupathi from Kanmangalam in a Maruthi Omni car bearing Registration No.TSK 5505. At that time, near Athurpakkam Petrol bunk, the driver of the truck bearing Registration No.HR.38/F 0781, going in front of the car suddenly stopped the truck in the middle of the National Highway Road without any signal and due to which, the car driver could not control the car and dashed on the backside of the truck. Due to the impact, one Kuttiappa @ Kuttiapppa Chetty sustained fatal injuries and died on the spot. The first respondent/claimant, due to the accident sustained the following injuries: i) A Lacerated wound (4x1x0.
5 cm) in left forehead, ii) Swelling and tenderness on dorsum of nose, X-ray spine, X-ray-chest, iii) Fracture both bones of Rt forearm, iv) 4 cm irregular laceration over the left eyebrow region and v) multiple injuries all over the body. Thereafter, the claim petition was filed and the Tribunal adjudicated the issues with reference to the documents and evidences. The appellant/Insurance company has defended their case. The Tribunal has awarded a total compensation of Rs.1,77,119/-.
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4. The learned counsel appearing on behalf of the appellant/Insurance Company mainly contended that the quantum of compensation granted by the Tribunal is exorbitant. The Tribunal has erred in holding that the driver of the lorry, owned by the second respondent and insured with the appellant was equally responsible for the accident along with the driver of the Omni car owned by the 3rd respondent and insured with the 4th respondent. The driver of the Omni car insured with the 4th respondent was solely responsible for the accident as he drove the car in a rash and negligent manner with uncontrollable speed and dashed against the lorry which was kept parked on the left side of the road and as such the entire liability ought to have been fastened only on 3rd and 4th respondents.
The Tribunal has not properly considered the evidence of RW1, an independent eyewitness who had deposed that the lorry was kept parked on the left side of the road near the petrol bunk which was corroborated by Ex.P1, FIR registered on the complaint lodged by a passenger in the car who had stated that the car driver had driven the car with speed and negligence and dashed the rear side of a lorry which was kept parked on the left side of the road.
granted towards pain and suffering and mental agony, transport and nutrition charges, attender charges, medical expenses, future medical expenses and partial loss of earning are on the higher side and based on that, the appellant/Insurance Company has chosen to file the present appeal. For the aforesaid reasons, the award is liable to be dismissed.
5. The learned counsel for the 4th respondent/Insurance Company submitted that in this case, the drivers of both the Omni car and Truck/Lorry were not examined and no rough sketch or observation mahazar have been marked on the side of the appellant/Insurance Company to prove the mode of accident. Further, RW1 who is an independent witness examined on the side of the appellant/Insurance company deposed that he did not see the accident directly and after hearing the sound only, he had seen the accident. In such circumstances, the Tribunal has rightly fixed equal negligence on the part of the driver of both the vehicles and hence, the appeal is liable to be dismissed.
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6. As far as the negligence is concerned, the Tribunal had fixed 50% negligence on the part of the driver of the omni car which belongs to the 3rd respondent and insured with the 4th respondent insurance company and had also fixed contributory negligence at 50% on the part of the driver of the Truck which belongs to the 2nd respondent and insured with the appellant insurance company. The main contention of the learned counsel for the appellant/insurance company is that driver of the Omni car insured with the 4th respondent was solely responsible for the accident as he drove the car in a rash and negligent manner with uncontrollable speed and dashed against the lorry which was kept parked on the left side of the road and as such the entire liability ought to have been fastened only on the 3rd and 4th respondents.
In this regard, RW1, who is an independent witness, had deposed that the truck / lorry was kept parked on the left side of the road near the petrol bunk and the same was corroborated by Ex.
road. Further, RW1 also admitted that only after hearing the sound, he has seen the accident and he has not seen the accident directly. In such circumstances, no other independent witness has been examined to prove that the driver of the Truck had driven the vehicle in a rash and negligent manner and he is also responsible for the accident. In the considered view of this Court, it would be appropriate to fix 60% negligence on the part of the driver of the Omni car which belongs to the 3rd respondent and 40% contributory negligence on the part of the driver of the Truck which belongs to the 2nd respondent as it is not the case of the 2nd respondent that the truck was parked in the bay reserved for parking.
7. Insofar as the total compensation awarded by the Tribunal is concerned, the assessment of the compensation under all the heads by the Tribunal is a just compensation and it does not call for any interference by this Court.
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8.
In the result, (i) This appeal is partly allowed and the Appellant /Insurance Company and the respondents 2 to 4 are directed to deposit the award amount i.e, Rs.1,77,119/- in the ratio aforesaid, fixed by this Court, along with interest at the rate of 6% per annum and proportionate costs, after deducting the amount already deposited, if any, to the credit of MCOP.No.450 of 2013 within a period of six weeks from the date of receipt of a copy of this Judgment.
(ii) On such deposit being made, the Tribunal is directed to transfer the award amount to the bank account of the first respondent/claimant along with accrued interest through RTGS within a period of two weeks thereafter. No costs. Consequently, connected Miscellaneous Petition is closed. 23.03.2023 Index : Yes/No Speaking Order/Non-Speaking Order (4/4) uma 8/10
To 1.The Motor Accident Claims Tribunal, Special Sub Judge, Krishnagiri 2.The Section Officer, V.R Section, High Court, Madras.
A.A.NAKKIRAN, J.
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uma and MP No.1 of 2014 (4/4) 23.03.2023 10/10