IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.09.2010 C O R A M THE HONOURABLE MRS. JUSTICE B.RAJENDRAN C.M.A. No. 3083 of 2007 and M.P. No. 1 of 2008 The New India Assurance Co Ltd Dharapuram .. Appellant Versus 1. Sarasathal 2. Chinnathal 3. Veerappa Gounder 4. K. Ramasamy 5. P. Muthusamy 6. Kannan 7. Karuppusamy .. Respondents Appeal under Section 173 of the Motor Vehicles Act, 1988 against the fair and decreetal order dated 06.06.2006 made in MCOP No. 621 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District cum Fast Track Court No.3, Dharapuram. For Appellant : Mr. N. Vijayaraghavan For Respondents : Mr. D. Krishnakumar for RR1 to 3 RR4 to 7 set exparte JUDGMENT
The insurance company has come forward with this appeal questioning the quantum of compensation of Rs.4,70,000/- awarded by the court below in favour of the claimants for the death of the deceased Samiappan in a road accident.
2. The facts that led to the filing of the claim petition was that on 11.01.2001 at about 7.30 pm, when the deceased was travelling as a pillion rider in the Yamaha RX 100 Two Wheeler bearing Registration No. TN 57 Y 555 driven by one Kannan, at Dharapuram to Palani Road in front of Thasanaickenpatti Milk Society, a Tata van bearing Registration No. TN 33 W 7799 was driven by its driver in a rash and negligent manner and suddenly applied the brake. As a result, the deceased and the driver of the two wheeler dashed against the van and sustained multiple injuries. Immediately, the deceased was taken to the Government Hospital, Dharampuram from where, he was referred to KMC Hospital, Coimbatore where he died. At the time of the accident, the deceased was 32 years and engaged in cotton seed business. The first claimant is the wife and the second and third claimants are the parents of the deceased. Therefore, for the death of the deceased, the claimants have filed the claim petition claiming Rs.10,00,000/- as compensation.
3. Before the Court below, the first claimant examined herself as PW1 and two other witnesses were examined as Pws 2 and 3, besides Exs. P1 to P17 were marked. On behalf of the respondents in the claim petition, no witnesses were examined, but the Order passed in MCOP No. 463 of 2001 was marked as RW1. The Court below, on analysis of the oral and documentary evidence has awarded a sum of Rs.4,70,000/- as compensation for the claimants, which is questioned in this appeal.
4. The insurance company is not disputing the date, time and manner in which the accident. The insurance company is questioning the liability on the ground that the deceased himself has contributed to the accident as there was a collusion between two vehicles. Therefore, the court below ought to have fastened 50% of the liability alone on the insurance company and another 50% liability on the driver or owner of the two wheeler. In support of this contention, the learned counsel for the appellant relied on Ex.R1, the order passed in MCOP No. 463 of 2001, to show that in a connected case, arising out of the same accident, the liability was apportioned between the owners and insurers of both the vehicles. The decision rendered in MCOP No. 463 of 2001 has become final as no appeal has been preferred by the owner of the vehicle. Therefore, in this case also, the court below ought to have fastened 50% of the liability alone on the appellant, failure to do so vitiates the award passed by the Court below besides resulting in conflicting adjudication.
5. The learned counsel for the claimants would contend that the deceased was travelling in the two wheeler as a Pillion rider. The driver of the two wheeler was alive and he filed MCOP No. 463 of 2001 claiming compensation for the injuries sustained by him in the accident. Inasmuch as the deceased died in the accident and he was only a pillion rider, the question of contributory negligence does not arise in this case. Even the first information report came to be registered only against the driver of the Van, which would clearly indicate the negligence on the part of the driver of the Van. Further, the Driver of the Van accepted his guilt and paid the fine in the criminal court. Therefore, it is not now open to the appellant to contend that they are not liable to pay the entire compensation awarded by the court below. The court below also rightly rejected the contention of the insurance company that the judgment rendered in MCOP No. 463 of 2001 will not enure to their benefit to hold that the deceased was guilty of contributory negligence. When the appellant disputes their liability to pay the entire compensation amount, they ought to have atleast examined the driver of the two wheeler, but they have not examined him or any witnesses on their side. They have not examined the driver of the two wheeler or any one to say that the accident had occurred due to the collusion or negligence on both sides. Whereas, an independent witness examined on the side of the claimants namely PW2, Karuppusamy, an eye witness to the accident, would categorically depose that the accident was due to the negligent manner in which the van driver had applied the brake. Therefore, it is not open to the insurance company to contend that they are not liable to pay the entire compensation amount.
6. Heard both sides. The short point for consideration in this appeal is whether fastening of the entire liability on the insurance company by the court below is in accordance with law.
7. A perusal of the first information report would indicate that the accident occurred due to the abrupt application of brake by the driver of the van, over which, the two wheeler, in which the claimant was travelling as a pillion rider, dashed. In the impact, the deceased sustained grevious injuries and died. The first information report was filed against the driver of the van and subsequently, the charge sheet was also filed against the driver of the van. The driver of the Van had also accepted his guilt and paid the fine amount before the Criminal Court. Even though the Driver of the two wheeler chosen to claim compensation for the injuries sustained by him by filing MCOP No. 463 of 2001, the insurance company only relied on the decision rendered therein but not chosen to examine the driver of the two wheeler as a witness in the present case. The insurance company also not examined any witness on their side to prove that there was a contributory negligence on the part of the deceased. Under those circumstances, merely because in the connected MCOP No. 463 of 2001 a judgment was rendered apportioning the liability at 50% on the part of the insurance company, it cannot be considered to hold that in the present case, there was a contributory negligence on the part of the deceased and the insurance company can be fastened only with 50% liability. Moreover, the deceased was only travelling as a pillion rider in the two wheeler. The court below also rejected the contention of the insurance company in this context by assigning reasons. Therefore, I do not find any reason to hold that the insurance company can be fastened with only 50% liability and the contention of the counsel for the appellant is rejected.
8. As far as quantum is concerned, the deceased was aged 30 at the time of accident. He was engaged in the business of selling cotton seeds. The court below taken only a meager sum of Rs.3,000/- as his monthly income and after giving 1/3rd deduction towards his personal expenses, applied the multiplier theorey and arrived at the compensation amount of Rs.4,08,000/- towards loss of income. By adding compensation towards funeral, loss of consortium and for love and affection, the compensation was arrived at Rs.4,70,000/- and it cannot be said to be illegal or unjustified.
9. In the result, the civil miscellaneous appeal filed by the Insurance Company is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
10. It is stated that the appellant had deposited a sum of Rs.4,00,000/-. The balance amount is directed to be deposited by the insurance company with accrued interest, within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the claimants/respondents herein are also permitted to withdraw the compensation amount with accrued interest.
21-09-2010
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To
The Motor Accidents Claims Tribunal
Additional District cum
Fast Track Court No.3
Dharapuram.
B. RAJENDRAN, J
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CMA No. 3083 of 2007
21.09.2010