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2018 DIGILAW 1300 (MAD)

United India Insurance Co. Ltd. v. Kalaivani

2018-04-03

K.RAVICHANDRABAABU, T.KRISHNAVALLI

body2018
JUDGMENT : K. Ravichandrabaabu, J. 1. United India Insurance Co. Ltd., which is the respondent No. 2 before the Motor Accidents Claims Tribunal, Tirunelveli, in MACOP No. 236 of 2011, is the appellant herein. 2. The above claim petition was filed by the claimants for payment of compensation of Rs. 1,50,00,000, due to the death of one Bala Amuthan in a motor vehicle accident, which had taken place on 12.12.2010. 3. The facts of the case as narrated in the claim petition are as follows: (i) On 12.12.2010, the deceased was travelling in a Maruti Omni van bearing registration No. TN 59-AY 4257, belonging to the respondent No. 3 and insured with the respondent No. 4, from Madurai to Chennai after attending a marriage. At about 2 a.m., when the van was reaching near Kootteripattu on the left GST lane of the road towards Chennai, at a normal speed, the van driver found another vehicle, namely, Tata City Rider van bearing No. TN 20-BA 4735, belonging to the respondent No. 1 and insured with the respondent No. 2, negligently abandoned and parked on the lane without any parking light, instead of parking it on the service road. In a fraction of second, though the Maruti Omni van driver tried to avoid the collision and turned towards right lane, unfortunately a speeding bus came on the right lane and prevented the Maruti Omni van from avoiding collision, as a result of which the left portion of the Maruti Omni van dashed against the right rear portion of the Tata City Rider. As a result of such collision, the deceased, who was sitting on the left side of the Maruti van, sustained grievous injuries. Immediately he was taken to Government Hospital at Tindivanam and after giving first-aid, he was taken to Jipmer Hospital, Pondicherry, where he succumbed to his injuries a little later on the same day itself. (ii) The deceased was running an agency in the name and style of 'Sahana Sewings' at Tirunelveli Town and distributing Rama and Rasi Sewing Machines and spare parts and thereby he earned not less than Rs. 55,000 per month. The business establishment was forced to pull down due to the death of the deceased. (iii) Petitioners in the claim petition estimated a sum of Rs. 1,48,50,000 as compensation for the loss of earnings, apart from a sum of Rs. 10,000 for funeral expenses; Rs. 55,000 per month. The business establishment was forced to pull down due to the death of the deceased. (iii) Petitioners in the claim petition estimated a sum of Rs. 1,48,50,000 as compensation for the loss of earnings, apart from a sum of Rs. 10,000 for funeral expenses; Rs. 15,000 for transport to hospital; Rs. 1,00,000 towards loss of consortium; Rs. 1,00,000 towards compensation for loss of love and affection; Rs. 1,00,000 towards compensation for mental agony and mental shock; Rs. 1,00,000 for loss of service and Rs. 1,00,000 for loss of guidance. Thus, the total claim though comes to Rs. 1,53,75,000, the petitioners however have restricted their claim to Rs. 1,50,00,000. 4. The appellant herein as the respondent No. 2 before the Tribunal filed a counter-affidavit by contending as follows: The driver of Maruti Omni van bearing registration No. TN 59-AY 4257 drove the vehicle in a rash and negligent manner and thus hit the Tata City Rider from behind. Thus, the Maruti Omni van also equally contributed to the accident. If the driver of Maruti Omni van had driven slowly and cautiously, he could have avoided the accident. So, the principle of joint liability will be applicable to the present case. 5. The Tribunal found that the accident had taken place only due to negligent act of the driver of Tata City Rider, which was parked on the road without parking lamp and not due to any mechanical fault or defect of the colliding vehicles. However, insofar as the quantum is concerned, the Tribunal found that a sum of Rs. 45,05,000 in total is liable to be paid, out of which, the petitioner No. 1 was awarded a sum of Rs. 12,00,000, the petitioner Nos. 2 and 3 were awarded Rs. 12,00,000 each, the petitioner No. 4 was awarded Rs. 4,05,000 and petitioner No. 5 was awarded Rs. 5,00,000. 6. Though a cross-appeal was filed in this case by the claimants for enhancement of compensation, the same is withdrawn today as not pressed. Therefore, it is evident that the claimants are satisfied with the quantum of award granted by the Tribunal. 7. The present appeal filed before this court by the respondent No. 2 before the Tribunal is also not in respect of the quantum. Therefore, it is evident that the claimants are satisfied with the quantum of award granted by the Tribunal. 7. The present appeal filed before this court by the respondent No. 2 before the Tribunal is also not in respect of the quantum. On the other hand, the appellant claims that fixing the entire liability on the appellant-respondent No. 2 alone is erroneous and without considering the contributory negligence attributable on the part of the other vehicle, which is insured with respondent No. 4 before the Tribunal, who is the respondent No. 8 in this appeal. 8. Therefore, this court has to find out as to whether the appellant is justified in raising the contributory negligence issue as stated supra and consequently whether the respondent No. 8 is also liable to share the liability to pay compensation to the claimants. 9. Mr. G. Prabhu Rajadurai, learned counsel appearing for the appellant, argued that the vehicle, namely, Tata City Rider though was parked without any parking lamp on the lane, the other vehicle, namely, Maruti Omni van should have avoided the collision, had the driver of the said vehicle driven the same with due care and caution. He further pointed out that the version of PW 2, who is the eyewitness, would undoubtedly indicate that Maruti Omni van driver could have avoided the collision, as the road, on which the accident took place, is a four-lane road and, therefore, there is no question of any vehicle coming from the opposite direction on the same road. 10. The learned counsel appearing for the appellant relied on a decision of the Hon'ble Apex Court reported in Raj Rani v. Oriental Insurance Co. Ltd., 2009 ACJ 2003 (SC), arising out of similar set of facts and circumstances, in support of his submission that the Tribunal ought to have found that the other vehicle has also contributed to the accident and consequently, the theory of contributory negligence would come into play in this case as well and thus, both the vehicles should share the liability at 50:50. On similar line, the learned counsel also relied on a Division Bench judgment of this court in S. Manjula Devi v. Brijpal Singh, 2018 ACJ 55 (Madras). 11. On similar line, the learned counsel also relied on a Division Bench judgment of this court in S. Manjula Devi v. Brijpal Singh, 2018 ACJ 55 (Madras). 11. On the other hand, the learned counsel appearing for the contesting respondent, namely, the respondent No. 8, submitted that though the appellant herein has raised the plea of contributory negligence before Claims Tribunal, it has, however, not let in any evidence in support of such claim. He further pointed out that even the driver of Tata City Rider was not examined in support of their claim for contributory negligence. Under such circumstances, he submitted that the Tribunal is right and justified in fixing the entire liability on the appellant alone. 12. We have heard the learned counsel appearing for the appellant, the learned counsel appearing for the respondent Nos. 1 to 5-claimants and the learned counsel for the respondent No. 8. 13. We have already pointed out that insofar as the quantum of compensation fixed by the Tribunal is concerned, there is no dispute, as the claimants have withdrawn their Cross-objection (MD) No. 30 of 2016, filed before this court for enhancement of compensation. Therefore, the only question to be decided is as to whether the vehicle insured with the respondent No. 8 is also liable on the principle of contributory negligence, as pleaded by the appellant. 14. There is no dispute to the fact that there was a collision of two vehicles which resulted in loss of life of the said person by name Bala Amuthan. His legal heirs are claimants. The deceased was admittedly travelling in Maruti van which hit the other vehicle on its rear side. The reason stated for such collision is that the other vehicle was parked on the road itself without having any parking light. It is seen that the accident took place during night hours. Though it is contended that the driver of Maruti van was not in a position to avoid collision as another vehicle came from the opposite direction thereby preventing the Maruti van from taking a cut, such contention is not believable in view of the clear and categorical statement made by the eyewitness, viz., PW 2. Neither the claimants nor the respondent No. 8 herein let in any evidence in support of such contention. 15. We have perused the evidence of PW 2, who is the eyewitness. Neither the claimants nor the respondent No. 8 herein let in any evidence in support of such contention. 15. We have perused the evidence of PW 2, who is the eyewitness. He has spoken as follows: (Editor: The text of the vernacular matter has not been reproduced.) 16. From the above version of PW 2, it is evident that Maruti Omni van, which dashed on the back side of the other vehicle, could have avoided the accident, had the driver of the said vehicle driven the same with due care and caution. When the road, on which the accident took place, is a four-lane road, certainly, there is no possibility of any vehicle coming from the opposite direction on the same road, unless there is any evidence let in to prove and substantiate such contention, as raised in the claim petition. 17. Further, it is to be noted that the deceased was travelling in the moving vehicle, namely, Maruti van, whereas the other vehicle was not moving and on the other hand, it was parked, no doubt, on the road itself without parking light. But at the same time, the responsibility of the driver, who drove the Maruti van, cannot be ignored as immaterial even though the other vehicle was parked on the road without parking light. Needless to say that the driver in the moving vehicle should have been much more careful and cautious and driven the vehicle with utmost care, more particularly, when he was driving the vehicle during night hours. The speed at which he was driving the vehicle and the distance of his visibility of road with headlights are all matters concerning the issue involved in this case. PW 2 has spoken about those things. Therefore, the collision between the two vehicles would undoubtedly indicate that the driver of Maruti van was also negligent and thus, contributed to the collision. On the part of the other parked vehicle, it is evident that it ought not to have been parked on the road that too without parking light during night hours. Therefore, we have no hesitation in holding that both have contributed to the accident. 18. Under the identical circumstances, the Hon'ble Supreme Court in Raj Rani v. Oriental Insurance Co. Ltd., 2009 ACJ 2003 (SC), fixed contributory negligence as 50 per cent each on the colliding vehicles. Therefore, we have no hesitation in holding that both have contributed to the accident. 18. Under the identical circumstances, the Hon'ble Supreme Court in Raj Rani v. Oriental Insurance Co. Ltd., 2009 ACJ 2003 (SC), fixed contributory negligence as 50 per cent each on the colliding vehicles. The facts of that case are also similar to the one before this court. Therefore, we have no hesitation in holding that Maruti Omni van has also contributed to the accident and consequently, the principle of contributory negligence would come into play in this case as well. However, while fixing the percentage of negligence on each party, the argument advanced by the learned counsel appearing for the respondent No. 8 is to be noted with some force, as admittedly, the appellant, though raised such plea in their counter, has not let in any evidence. On the other hand, the appellant seeks to rely upon the evidence of PW 2 alone. However, as this court has found and come to the conclusion that Maruti Omni van has also contributed to the accident, in view of the specific evidence of PW 2, the percentage of liability is fixed as 70 per cent and 30 per cent payable by the appellant and the respondent No. 8 respectively. In all other aspects, the quantum of compensation fixed and the apportionment of the same by the claimants as ordered by the Tribunal are upheld. 19. During pendency of the appeal, the respondent No. 2 herein was declared as major and the respondent No. 1 is also discharged from the guardianship by an order dated 10.8.2017. Therefore, while apportioning the compensation, the above said fact will be taken into consideration. 20. In view of the order passed in this appeal, the appellant as well as the respondent No. 8 shall deposit their respective quantum within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, the major claimants are permitted to withdraw their respective shares on making an appropriate application before the Tribunal. The share of the minor shall be deposited in any one of the nationalised banks in a fixed deposit scheme, till he attains majority. The mother of the minor claimant is permitted to withdraw the interest of minor's share once in three months for the welfare of the minor. 21. The share of the minor shall be deposited in any one of the nationalised banks in a fixed deposit scheme, till he attains majority. The mother of the minor claimant is permitted to withdraw the interest of minor's share once in three months for the welfare of the minor. 21. This civil miscellaneous appeal is partly allowed. Consequently, connected civil miscellaneous petition is closed. No costs.