Royal Sundaram Alliance v. N.Ganesan

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.11.2017

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN C.M.A.(MD).No.1098 of 2015 and C.M.P.(MD).No.2 of 2015 Royal Sundaram Alliance Insurance Co. Ltd., Chennai - 600 014.

Rep. by its Branch Manager.

... Appellant/2nd respondent Vs 1.N.Ganesan ... Respondent/Petitioner 2.A.R.Shanmugavel 3.Tamil Nadu State Transport Corporation, (Madurai) Ltd., Bye Pass Road, Madurai Rep. by its Managing Director.

...Respondents /

1st & 3rd Respondent PRAYER:- Civil Miscellaneous Appeal filed under Section173 of the Motor Vehicle Act, to set aside the fair and decreetal order dated 05.09.2014 made in M.C.O.P.No.110 of 2010, Motor Accident Claims Tribunal (Additional Sub Court), Tirunelveli. For Appellant : Mrs.K.R.Shiva Shankari for Mr.S.Srinivasa Raghavan For R.1 : Given up For R.2 : Mr.J.Ashok For R.3 : Mr.M.Kayalarasan

J U D G M E N T

The impugned award is questioned by the insurance company on the ground of quantum as well as negligence. The lorry insured by the appellant was coming from east to west and turned towards right. The bus belonging to the Transport Corporation (third respondent) was going from South to North. The bus had hit the lorry from behind.

The lorry driver was examined

as D.W.1. On the side of the Transport Corporation no witness was examined. A passenger travelling in the bus had suffered injuries. He filed M.C.O.P.No.110 of 2010 on the file of the Motor Accident Claims Tribunal (Additional Sub Court), Tirunelveli. The Tribunal fixed the entire negligence on the lorry driver and awarded a sum of Rs.3,30,346/- with interest. The appellant is the insurer of the lorry and fastened with the liability. Aggrieved by the same this appeal has been filed.

2. Heard the learned counsel for the parties.

3. Since the bus had hit the lorry from behind, the negligence could not be fixed entirety on the lorry driver. It is also relevant to note here that the bus driver was not examined as witness by the Transport Corporation. Therefore, it would be an appropriate to fix 50% of the contributory negligence on the bus driver also. Therefore, the lability has to be shared by the appellant Insurance company and the third respondent Transport Corporation. As regards quantum the Tribunal erred in adopting the multiplier method. The compensation should therefore to be reworked as under:.

Sl.No Heads Amount in Rupees 1.

Disability compensation (40%) 40xRs.3,000 Rs.1,20,000/- 2.

Loss of income Rs.10,000/- 3.

Pain and Sufferings Rs.50,000 4.

Nourishment Rs.5,000/- 5.

Transportation Rs.5,000/- 6.

Attender Rs.5,000/- 7.

Medical expenses and for future expenses Rs.1,00,000/- Total Rs.2,95,000/- Round off Rs.3,00,000/-

4.Accordingly, the award made in M.C.O.P.No.110 of 2010 dated 05.09.2014 on the file of the Motor Accident Claims Tribunal (Additional Sub Court), Tirunelveli is modified as indicated above. The appellant insurance Company and the third respondent Transport Corporation are liable to pay Rs.1,50,000/- each with interest at 7.5% per annum and cost from the date of petition till the date of realization within a period of twelve weeks from the date of receipt of a copy of this order, less the amount already deposited, if any. On such deposit the claimant is entitled to withdraw the entire amount, by filing proper application before the Tribunal, less the amount already withdrawn by him, if any.

5. This Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar kml/dss To 1.The Judge, Motor Accident Claims Tribunal (Additional Sub Court), Tirunelveli.

2.The Managing Director Tamil Nadu State Transport Corporation, (Madurai) Ltd., Bye Pass Road, Madurai Copy to:

1. The Record Keeper,V.R.Section, Madurai Bench of Madras High Court, Madurai.

+1 cc to MR.S.SRINIVASAN RAGHAVAN, Advocate SR.No.86213 +1 cc to MR.J.ASHOK, Advocate SR.No.86014 C.M.A.(MD).No.1098 of 2015 and C.M.P.(MD).No.2 of 2015 08.11.2017 SMA/JC/SAR-4/21.12.2017:3P/6C