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2021 DIGILAW 3263 (MAD)

Easwari v. K. Sivanantham

2021-11-24

S.ANANTHI

body2021
JUDGMENT : (Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to enhance the compensation from Rs.16,28,000/- to Rs.30,00,000/- by modifying the fair and decreetal order passed by the Motor Accident Claims Tribunal/District Judge, Karur, in M.C.O.P.No.132 of 2018, dated 22.06.2020.) 1. This Civil Miscellaneous Appeal has been filed by the claimants to enhance the award of compensation passed in M.C.O.P.No.132 of 2018, dated 22.06.2020 by the learned Motor Accident Claims Tribunal/District Judge, Karur. 2. It is a case of fatal accident, which took place on 28.10.2017 the deceased Kumar was riding a two wheeler bearing Registration No.TN-40-B-0337 from south to north on Salem to Karur NH road and when he was proceeding opposite of Manmagalam lorry Association Petrol Bunk at about 14.00 hours, the car bearing Registration No.TN-57-AH-3848 was driven by its driver in a rash and negligent manner on the same direction and dashed on the two wheeler from behind. Due to the accident, the deceased Kumar died on the spot. 3. The claimants have filed a petition in M.C.O.P. No.132 of 2018 on the file of the learned Motor Accident Claims Tribunal/District Judge, Karur, seeking compensation. 4. Before the Tribunal, on the side of the claimant two witnesses were examined as P.Ws.1 & 2 and marked six documents as Exs.P.1 to P.6 and R.W.1 was examined and Ex.R.1 to R.3 were marked. 5. The Tribunal, after considering the pleadings, oral and documentary evidences and the arguments of the counsel for the claimants and the insurance company and also on appreciating the evidences on record, held that the accident occurred only, due to the rash and negligent driving of the driver of the lorry and directed the appellant/insurance company to pay a sum of Rs.16,28,000/- as compensation. 6. The claimants have filed this present appeal seeking enhancement of compensation. 7. Heard Mr.K.Suresh, learned counsel appearing for the appellants and Mr.V.Ragunathan, learned counsel appearing for R-1 and Mr.A.Ilango, learned counsel appearing for R-2. 8. This Civil Miscellaneous Appeal is filed on the ground that the tribunal has erroneously relied upon the MV Report without even examining the Motor Vehicle Inspector for the purpose of ascertaining the negligence of the deceased Kumar. The tribunal has erroneously come to the conclusion that the damages to the vehicle has given an inference that the deceased suddenly crossed the road. The tribunal has erroneously come to the conclusion that the damages to the vehicle has given an inference that the deceased suddenly crossed the road. It is submitted that when there are acceptable evidence is available, the inference of the tribunal regarding the manner of accident is not acceptable. The tribunal has failed to consider that there is no complaint lodged by R.W.1 against the deceased for his alleged negligence. The tribunal has erroneously come to the conclusion that there was contributory negligence on the part of the deceased. The tribunal very excessively fixed the percentage of contributory negligence on the part of the deceased and also awarded a meagre sum in respect of other heads and the same also needs interference. 9. As per the claim petition, the deceased Kumar was aged about 40 years at the time of accident and he was working as driver and earning a sum of Rs.20,000/-p.m. The tribunal has fixed monthly income of the deceased as Rs.13,000/-and awarded a sum of Rs.20,35,000/- and deducted 20% for contributory negligence of the deceased, since the deceased suddenly crossed the road east to west from the gap meant for draining road water. 10. Whether contributory negligence fixed on the deceased is liable to be set aside? 11. The deceased was riding his two wheeler from south to north on the extreme left side of the road. A car belonging to the first respondent herein bearing Regn. no.TN-57-AH-3848 came on the same direction in rash and negligent manner and hit behind the two wheeler. 12. But, as per M.V. Report there was a damage on the front side of the car and there was a damage on the rear side of the two wheeler. The case of the respondent is that when the deceased suddenly crossed the road the car hit the rear side of the two wheeler. 13. The driver of the car was examined as R.W.1. The admitted portion of his cross examination is extracted hereunder: 14. The First Information Report was registered against the driver of the car and charge sheet was also filed against him. Except, M.V. Report no other evidence for negligence on the side of the deceased. 15. R.W.1 himself had admitted that there is no gap in central median. R.W.1 is a correct person to depose about the accident. 16. The First Information Report was registered against the driver of the car and charge sheet was also filed against him. Except, M.V. Report no other evidence for negligence on the side of the deceased. 15. R.W.1 himself had admitted that there is no gap in central median. R.W.1 is a correct person to depose about the accident. 16. The learned counsel appearing for the appellants relied upon the Judgment reported in 2013 (2) TNMAC 546 in the case of Pooncholai Vs. Sanjeevi Reddiar. The relevant portion is extracted hereunder: .......... “9. No doubt, Ex.P.2 Motor Vehicle Inspector's Report speaks about damages caused to both the vehicles involved in the accident. It is natural and the consequential that both the vehicles could get damaged and that itself would not be a proof to come to the conclusion that both the drivers were negligent. In view of that, the contributory negligence fixed against the Appellant/Claimant is set aside and the view of this Court is supported by the Judgments reported in National Insurance Co. Ltd. V. Sinitha and others, 2012 (1) TN MAC 1 (SC) : 2012(2) CC 356 & Usha Rajkhowa and others V. Paramound Industries and others, 2009(1) TN MAC 337 (SC) : 2009(14)SCC 71 (cited supra) relied upon by Suil Kumar, Counsel for the appellant in both the cases. The Hon'ble Supreme Court held that the burden of proof of contributory negligence lies on the Insurer or owner of the offending vehicle. In this case, no evidence is adduced on the side of the Third Respondent or Fourth Respondent. The burden of proof was shifted on the Third Respondent/Owner of the offending vehicle or Insurance Company by examination by PW1 and that was not discharged by adducing contra evidence. In the absence of any contra evidence, the evidence of P.W.1 has to be believed. Therefore, this Court holds that there is no contributory negligence on the part of the Appellant/Claimant and the accident occurred because of the negligence of the driver of the Third Respondent alone”.” Only on the basis of M.V. Report, contributory negligence cannot be fixed on the deceased. 17. The learned counsel appearing for the appellants/claimants has also submitted that consortium to be added 10% for every three years. But, the tribunal has passed an award of compensation in the year 2020. Hence, there is no question of enhancement for consortium. 18. 17. The learned counsel appearing for the appellants/claimants has also submitted that consortium to be added 10% for every three years. But, the tribunal has passed an award of compensation in the year 2020. Hence, there is no question of enhancement for consortium. 18. Hence, the claimants are entitled for the entire award amount as per the calculation fixed by the tribunal without deduction for contributory negligence. The other terms for proportionate confirmed as in the award by the Tribunal. 19. Finally, this Civil Miscellaneous Appeal is partly allowed. The Insurance Company/R-2 herein is liable to pay entire award amount of Rs.20,35,000/- with 7.5% interest, as fixed by the Tribunal from the date of petition. The insurance company is directed to deposit the entire award amount, within a period of Two weeks from the date of receipt of copy of this order. No Costs.