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2021 DIGILAW 1568 (MAD)

R. Sadasivam v. Mohanasundar

2021-04-30

R.SUBBIAH, S.KANNAMMAL

body2021
JUDGMENT : (R. Subbiah, J.) Both these Civil Miscellaneous Appeals are filed as against the award dated 22.03.2017 made in MCOP No. 272 of 2014 on the file of Motor Accident Claims Tribunal (III Additional District Court), Dharapuram. 2. While CMA No. 2250 of 2017 has been filed by the claimants seeking enhancement of the compensation, CMA No. 3034 of 2017 has been filed by the Insurance Company, as against the very same award passed by the Tribunal, questioning their liability to pay the compensation amount to the claimants. Therefore, both the appeals are taken up for hearing together and disposed of by this common judgment. 3. For the sake of convenience the parties are referred to as per their litigative status in the claim petition as claimants and respondent-Insurance Company. 4. The claimants in these appeals are parents and brother of deceased Dinesh. It is the case of the claimants that on 06.12.2013 at about 11.00 pm the deceased was riding the motor cycle bearing Registration No. TN 22 CV 8230 and when the deceased was driving the vehicle at a minimum speed, near Kamarajar Memorial in Sardar Patel Road, the deceased lost balance and fell down on the right side of the road. However, due to such fall, the deceased did not sustain any injuries. While the deceased made an attempt to get up, a car bearing Registration No. TN 37 AV 1675 came from the opposite direction in a hectic speed and dashed against him. In the impact, the deceased was thrown out and sustained injuries all over his body. Immediately he was taken to Government Hospital, Royapettah for treatment, from where he was referred to Rajiv Gandhi Hospital, Chennai. Inspite of treatment, he died on the next day on 07.12.2013. At the time of accident, the deceased was 26 years old. He was working as System Engineer in Tata Consultancy Services at Siruseri and was earning a sum of Rs.32,137/- as monthly income. Hence, the claimants claimed a sum of Rs.70 lakhs as compensation. 5. The claim petition was resisted by the Insurance company stating that on the date of accident, the deceased was riding the two wheeler in a hectic speed without even wearing a helmet and fell down on the right side of the road. Hence, the claimants claimed a sum of Rs.70 lakhs as compensation. 5. The claim petition was resisted by the Insurance company stating that on the date of accident, the deceased was riding the two wheeler in a hectic speed without even wearing a helmet and fell down on the right side of the road. The First Information Report was also filed by the J-2 Adyar Police Station only against the deceased and after investigation, final report was filed against the deceased. The deceased was solely responsible for the accident and therefore, the Insurance Company sought for dismissal of the claim petition. 6. Before the Tribunal, in order to prove the averments in the claim petition, on behalf of the claimants, PW1 to 3 were examined and 33 documents marked as Exs. P1 to P33. On the side of the respondents, two witnesses were examined as RW1 and 2 and Exs.R1, insurance policy was marked. The Tribunal, after analysing the entire evidence, had come to the conclusion that the deceased dashed against the median divider and fallen on the right side of the road. At that time, the car came from the opposite direction ran over him. After having come to such conclusion, the Tribunal fixed 50% negligence on the part of the deceased and 50% on the part of the Insurance Company. The Tribunal awarded a sum total sum of Rs.47,79,840/- as compensation amount of which 50% thereof which works out to Rs.23,89,920/- was directed to be paid by the Insurance Company. The break up details of the amount awarded by the Tribunal is as under:- Loss of income Rs.47,34,840.00 Loss of love and affection Rs. 30,000.00 Funeral expenses Rs. 15,000.00 Rs.47,79,840.00 7. Now, the present appeal is filed by the Insurance Company contending that the Tribunal after coming to the conclusion that the deceased had fallen on the right side of the road suddenly, due to his rash and negligent driving, ought not to have awarded any compensation to the claimants. The driver of the car cannot expect such a sudden fall on the part of the deceased and that is the reason why the driver of the Car cannot avert the accident. The averment that the deceased attempted to get up, but without noticing the same the car had hit the deceased is false and incorrect, besides it has not been proved by any evidence. The averment that the deceased attempted to get up, but without noticing the same the car had hit the deceased is false and incorrect, besides it has not been proved by any evidence. While so, the Tribunal ought not to have fixed any negligence towards the driver of the Car. In this regard, the learned counsel for appellant/Insurance Company invited the attention of this Court to the evidence of R.W.1, Head Constable who has registered the First Information Report. R.W.1 has adduced evidence stating that the accident had occurred only due to the negligence of the deceased. Since the accident had occurred due to the negligence of the deceased, FIR was registered only against the deceased. PW2 also stated that deceased hit the median divider and had fallen on the right side of the road due to rash and negligent driving, which was not expected by the Car which was coming from the opposite direction. Therefore, the learned counsel for the appellant/Insurance Company prayed for allowing the appeal. 8. Per contra, the learned counsel for the claimants contended that P.W.2 has categorically adduced evidence that when the deceased made an attempt to get up, the car, which was driven in a rash and negligent manner, had hit the deceased. Had the car been driven in a minimum speed, the accident could have been averted. In such circumstances, the entire negligence ought to have been fixed against the driver of the Car. Further, the quantum of compensation awarded is on the lower side. Therefore, he seeks for enhancement of the compensation by setting aside the 50% contributory negligence. 9. We have heard the learned counsel for both sides and perused the materials placed on record. 10. It is an admitted case that on the fateful day, the deceased hit the median divider and fell on the right side of the road. Therefore, it could be reasonably presumed that the driver of the Car could not have expected such sudden fall of the deceased in front of the car and ran over the deceased. In a circumstance of this nature, the driver of the car cannot have effective control over the vehicle to avoid hitting the deceased who fell in front of the Car. In a circumstance of this nature, the driver of the car cannot have effective control over the vehicle to avoid hitting the deceased who fell in front of the Car. Even though Pw1 and 2 have deposed about the manner in which accident occurred, they did not witness the accident and therefore, their evidence cannot be given much credence. On the other hand, RW1, the Head Constable attached to J-2 Adyar Police Station, had categorically deposed that the deceased, due to his rash and negligent driving, had hit the median divider and consequently fell on the right side of the road. RW1 also deposed that investigation made on the basis of rough sketch, Ex.P3 prepared soon after the accident and report of the Motor Vehicle Inspector under Exs.P4 and P5 revealed that the deceased had contributed to the accident and no fault could be attributable towards the driver of the car. In his cross-examination, RW1 stood firm in reiterating the deposition made in his chief examination. It is also to be noted that the First Information Report was registered against the deceased, so also the final report in the case. Taking into account the over all material evidence, we are of the opinion that the negligence is on the part of the deceased to a greater extent than that of the driver of the car in this case. We therefore, fix 25% negligence on the part of the owner of the car and 75% negligence on the part of the claimant. 11. As regards quantum of compensation, we find that the Tribunal, based on the documentary evidence such as Ex.P23, appointment order, Ex.P29, salary slip and Ex.P30 to Ex.P33, Income Tax deduction certificate had taken a sum of Rs.30,949/- as monthly income. By awarding 50% towards future prospectus, the total loss of income per month was arrived at Rs.46,423/-. As the deceased was a bachelor, 50% was deducted towards personal expenses to arrive at a sum of Rs.23,213/- as the actual loss of monthly income. By applying multiplier 17' a total sum of Rs.47,34,840/- was awarded as loss of income of the deceased. That apart, under non-pecuniary benefits, the Tribunal awarded Rs.30,000/- towards loss of love and affection and Rs.15,000/- towards funeral expenses. Absolutely, we find no infirmity in such award passed by the Tribunal. By applying multiplier 17' a total sum of Rs.47,34,840/- was awarded as loss of income of the deceased. That apart, under non-pecuniary benefits, the Tribunal awarded Rs.30,000/- towards loss of love and affection and Rs.15,000/- towards funeral expenses. Absolutely, we find no infirmity in such award passed by the Tribunal. At the same time, we feel that the Tribunal ought to have awarded atleast a sum of Rs.40,000/- each towards loss of love and affection and the amount of Rs.30,000/- is meagre especially when the deceased died at a young age. Therefore, we enhance the compensation under the head loss of love and affection to Rs.40,000/- each totalling a sum of Rs.1,20,000/-. 12. Further, the Tribunal has not awarded any amount towards Transportation which we fix at Rs.15,000/-. Similarly, another sum of Rs.15000/- is awarded towards loss of estate, which the Tribunal failed to award. In effect, the total compensation amount works out as follows:- Loss of income Rs.47,34,840.00 Loss of love and affection Rs. 1,20,000.00 Transportation Rs. 15,000.00 Funeral Expenses Rs. 15,000.00 Loss of estate Rs. 15,000.00 Total Rs.48,99,840.00 rounded off to Rs.49,00,000.00 13. As we have held that the contributory negligence on the part of the deceased is 75%, out of the amount of Rs.49,00,000/- the claimants are only entitled to a sum of Rs.12,25,000/- as compensation for the death of the deceased. 14. In the result, we modify the award dated 22.03.2017 passed in MCOP No. 272 of 2014 passed by the Tribunal to the extent indicated above. Consequently, CMA No. 2250 of 2017 filed by the claimants is dismissed and CMA No. 3024 of 2017 filed by the Insurance Company is partly allowed. No costs. The appellant-Insurance Company is directed to deposit the entire compensation amount of Rs.12,25,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of deposit, after adjusting the amount, if any, already deposited. The excess amount, if any, deposited by the Insurance Company can be withdrawn. On such deposit, the claimants are permitted to withdraw the entire compensation amount. The first and second claimants are entitled for a sum of Rs.5,00,000/- each and the third claimant/brother is entitled for a sum of Rs.2,25,000/-. Consequently, C.M.P.No.18409 of 2017 is closed.