Dhanabakyyam v. Chinnappan

JUDGMENT The above appeal has been filed to set aside the judgement and decree dated 19.11.2020 made in M.C.O.P.No.310 of 2017 on the file of the Motor Accidents Claims Tribunal / Subordinate Court, Perundurai.

¶2It is the case of the appellant that on 12.10.2016 at about 7.00 p.m., the deceased Kathirvel, the husband of first appellant, drove his motor cycle bearing Reg.No.TN 52 V 1689 from North to South direction at Ellaimedu, on the extreme left side of Perunthurai to Thenimalai main road. At that time, the first respondent/driver drove his lorry bearing Reg.No.KN 17 F 2984 from South to North direction in a rash and negligent manner and ran over the motor cyclist. As a result, the head of the motorcyclist was crushed, and he died on the spot. The second respondent is the owner of the vehicle, and the third and fourth respondents are the insurer of the vehicles. The wife, daughter and parents of the deceased filed a claim petition before the Claims Tribunal, claiming compensation of Rs.30,45,000/-. However, the claim was rejected. Challenging the same, the present appeal has been filed.

¶3The learned counsel for the appellants/claimants, in order to prove negligence as against the respondents, examined P.W.2 and P.W.3, who were eye witnesses present at the scene of occurrence. Though they did not provide any information to the law enforcing agency for registering the case, the first respondent, the driver of the lorry, took advantage of the situation and made a complaint before the law enforcing agency. Consequently, the law enforcing agency registered a case in Crime No.490 of 2016 for the offence under Section 294 and 304A IPC, which is marked as Ext.P1. However, there are independent eye witnesses available on behalf of the appellants/claimants before the Claims Tribunal. In order to disprove the same, the respondents did not examine any independent eyewitnesses, except R.W.1, who is the driver of the lorry. R.W.1 is an entrusted person, and even on perusal of his deposition, it is clear that the deceased tried to overtake the lorry moving in front of him. Upon seeing the lorry of R.W.1, he slowed down his bike and thereafter hit the rear side of the lorry, which was heading in the same direction. He then fell under the wheels of the R.W.1's lorry, which was coming from the opposite direction, and thereby the said accident occurred, for which the law enforcing agency registered a criminal case against the deceased. When independent eyewitnesses are available, no independent witnesses are available on behalf of the third respondent to disprove the same. However, the Claims Tribunal fastened the entire liability as against the appellants, which is not sustainable. He also submitted that this Court may fix a reasonable compensation for the death of the deceased. Accordingly, he prays to allow the appeal.

¶4Per contra, the learned counsel appearing for the respondents 3 and 4 submitted that in order to disprove the evidence of P.W.1 to P.W.3, the respondents examined two witnesses, R.W.1 and R.W.2. R.W.1 is the informant of the Ext.P.1, FIR, and his deposition makes it clear that the deceased was riding his motorcycle in a rash and negligent manner, tried to overtake the ongoing vehicle, and dashed into the rear side of the lorry. Thereafter, he fell under the moving lorry of R.W.1. Such a deposition makes it very clear that due to rash and negligent driving of the deceased, the said accident happened. Therefore, the Claims Tribunal rejected the claim petition, which need not be interfered with. Even a bare perusal of the sketch itself reveals the manner in which the accident occurred. Hence, this Court need not interfere with the order of the Claims Tribunal. Accordingly, he prayed for dismissal of the appeal.

¶5Heard the learned counsel fort the appellant and the learned counsel for the respondents 3 and 4.

¶6The facts in the present case are not in dispute. Admittedly, the deceased aged about 34 years, riding his motorcycle at 07.00 p.m on

12.10.2016 from North to South direction near Ellaimedu. At that time, the first respondent/driver was driving the lorry, and the fourth respondent claims that the deceased dashed against the rear side of the moving lorry and fell down in the lorry of R.W.1. In order to ascertain the negligence, this Court perused the depositions of P.W.2 and P.W.3. Upon reviewing the same, they categorically stated that the first respondent's lorry came from the opposite direction in a rash and negligent manner and dashed against the deceased. Thereby, the head of the deceased was crushed on the spot, and he died due to the head injury. In order to disprove the evidence of P.W.2 and P.W.3, the respondents have examined R.W.1 and R.W.2. This Court perused the evidence of R.W.1 and the relevant portions are as follows: "ehd; bjw;fpy; ,Ue;J tlf;F nehf;fp yhhp Xl;o te;j nghJ bej;jp nkL vd;w ,lj;jpy; Ia';ffh; ngf;fhp Kd;ghf ehd; vdJ yhhpia bkJthf rhiy tpjpfis kjpj;J Xl;o te;njd;/ mg;nghJ tlf;fpypUe;J bjw;F nehf;fp xU yhhp te;jJ/ me;j yhhpf;F gpd; xU ,U rf;fu thfdk; te;jJ/ me;j ,U rf;fu thfdk; ntfkhf te;jJ. mJ mtUf;F Kd;g[ te;j yhhpia Xth; nlf; bra;a Kaw;rpj;jhh;/ vjpnu vdJ yhhp tUtij ghh;j;Jtpl;Lntfj;ij Fiwj;jhh;/ mjdhy; me;j ,U rf;fu thfdk; mtUf;F Kd;g[ te;j yhhp kPJ nkhhp vdJ yhhpapy; nkhjp tpl;lhh;/ vdJ yhhpapd; tyJ g[wk; gpd; g[w rf;fuj;jpy; mth; tpGe;J tpl;lhh;/ ehd; cldoahf fhty; epiyaj;jpw;F jfty; bfhLj;njd;/ mLj;j ehs; fhiy vGj;J K:ykhf bgUe;Jiw fhty; epiyaj;jpy; g[fhh; vGjp bfhLj;njd;/ ,U rf;fu thfdj;jpy; te;jth; ,we;J nghdjw;F mth; jhd; fhuzk;/ vd;id bgUe;Jiw nghyprhh; tprhhpj;jhh;fs;/ ehd; nkoy; ,Ue;J ,wf;fp bfhz;oUe;njd;/ ,we;J nghd egh; ,U rf;fu thfdj;jpy; nklhd gFjpapy; bkJthf jhd; te;jhh; vdwhy; rhpay;y/ vdf;F Kd;ghf xU yhhp brd;wjh vd;why; ,y;iy/ vdf;F Kd;ghf xU yhhp brd;W bfhz;oUe;jJ vd;Wk;. ehd; mij Xth; nlf; bra;jnghJ jhd; tpgj;J ele;jJ vd;why; rhpay;y/ ehd; tpgj;J ele;j clnd fhty; epiyaj;jpw;F brd;nwd;/ md;iwa jpdk; bfhLf;ftpy;iy/ mLj;j ehs; bfhLj;njd;/ tpgj;J ele;j cld; nghd; K:yk; fhty; JiwapdUf;F jfty; brhd;ndd;/ mth;fs; clnd m';F te;J ehd; brhd;dij vGjp bfhz;lhh;fs;/ ehd; mjpy; ifbaGj;J bra;J bfhLj;njd;/ gpd; ehd; mLj;j ehs; fhty; epiyak; brd;W g[fhh; vGjp bfhLj;njd;/ tpgj;J ele;j ,lk; kf;fs; elkhl;lk; cs;s gFjp vd;why; md;W kf;fs; elkhl;lk; ,y;iy/ vjpnu te;jjhf Twk; yhhpapd; gjpt[ vz; bjhpahJ/ me;j yhhp nyhLld; te;jjh. Vd;d yhhp vd;W bjhpahJ/"

¶7On perusal of the evidence of R.W.1, it is clear that R.W.1 deposed that the deceased tried to overtake the ongoing lorry. On seeing the lorry of R.W.1, he slowed down his vehicle. However, that unknown vehicle dashed against him and thereafter, he fell under R.W.1's lorry. Consequently, the rear side of the lorry ran over the deceased. Subsequently, the very same R.W.1 made a complaint before the law enforcing agency, stating that the deceased dashed against the unknown lorry and fell under the lorry of R.W.1. However, R.W.1 did not reveal the lorry which was hit by the deceased. Since P.W.2 and P.W.3 did not make a complaint before the law enforcing agency, R.W.1 was the only one available at the scene of occurrence, and he made a complaint as against the deceased. When there is independent evidence, P.W.2 and P.W.3 were present before the trial Court, and the evidence of R.W.1 also clarifies that the manner in which the accident occurred, the Claims Tribunal rejected the claim petition, which is not sustainable. Hence, this Court inclined to fix the entire liability against the respondents 3 and 4. Accordingly, the third and fourth respondents are directed to bear the entire compensation.

¶8Regarding the quantum of compensation, at the time of accident, the age of the deceased was 34 years, adopting the multiplier of 16 as fixed by the Apex Court in the case of Sarla Verma and Ors. v. DTC & Ors. reported in (2009) 6 SCC 121, the notional income is fixed at Rs.13,000/- as the incident occurred in the year 2016 and after adding 40% future prospectus and deducting 1/4th towards personal expenses, the total income is arrived at Rs.13,650/-. Therefore the loss of income of the deceased is Rs.13,650/- * 12 * 16 = Rs.26,20,800/-.

¶9Insofar the compensation awarded under the head loss of love and affection is concerned, the same is on the lower side. Hence, the said head is enhanced to a sum of Rs.1,60,000/-, in which each of the claimants are entitled to a sum of Rs.40,000/-. No amount has been awarded under the heads "funeral expenses" and "loss of estate", hence a sum of Rs.15,000/- each have been awarded under the said heads.

¶10In the above circumstances, the compensation awarded by the Tribunal is modified as under :-S.N o. Description Awarded by the Tribunal (Amount in Rs.) Awarded by this Court (Amount in Rs.) Loss of income -Rs.26,20,800/-(enhanced) Loss of love and affection Rs,50,000/-4 x 40000 =Rs.1,60,000/-(enhanced) Funeral expenses -15,000/-(enhanced) Loss of Estate -Rs.15,000/-Total Rs.50,000/-Rs.28,10,800/-

¶11Accordingly, this appeal is allowed and the compensation amount is enhanced from Rs.50,000/- to Rs.28,10,800/- and the respondents 3 and 4 / Insurance Company are directed to deposit the compensation amount, awarded by this Court above, to the credit of M.C.O.P.No.310 of 2017 along with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit and costs as awarded by the Tribunal, less the amount, if any already deposited, within a period of six weeks (6) from the date of receipt of a copy of this judgment. On such deposit being made, the Tribunal is directed to transfer the award amount directly to the bank account of the appellants /claimants through RTGS within a period of two weeks thereafter. The enhanced compensation awarded by this Court shall be apportioned among the appellants / claimants as per the order of the Tribunal.

¶12Further, the Tribunal is also directed to deposit the share of the 2nd appellant in an interest yielding fixed deposit with any one of the Nationalised Banks, initially for a period of three years to be renewed at periodic intervals until he attains majority and interest derived from out of the said deposit shall be paid to the mother of the 2nd appellant /Dhanabakyyam every quarter to be utilised for the welfare of the said minor claimant. After attaining majority, it is open to the 2nd appellant to file necessary application to establish the majority, at which point of time, the Tribunal is directed to transfer the amount in the fixed deposit directly to the bank account of the 2nd appellant through RTGS within a period of two (2) weeks thereafter. It is made clear that the appellants will not entitled to any interest for the delay period. No costs.

04.12.2024 Index : Yes / No

Speaking order / Non-speaking order Anu To

¶1Motor Accidents Claims Tribunal / Subordinate Court, Perundurai

¶2The Section Officer, V.R.Section, High Court, Madras. M.DHANDAPANI, J., Anu

04.12.2024

THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.12.2024 CORAM : THE HONOURABLE MR. JUSTICE M. DHANDAPANI 1.Dhanabakyyam 2.Minor Kiruthanyaa Minor represented by her next friend guardian mother Dhanabakkyam 3.Govindhammal 4.Venkatachalam ... Appellants/Petitioners Vs. 1.Chinnappan 2.Ibrahim 3.The Manager, Oriental Insurance Co. Ltd., T.H.Tower, 1st Floor, Stadium Road, Market Post, Muvattupuzha, Ernakulam District, Kerala-686673 4.The Manager, Oriental Insurance Co. Ltd. Mettur Road, Erode. (Policy No.441700/31/2015/15539) ... Respondents/Respondents (Respondents 1 and 2 remained ex parte before the tribunal, hence, notice may be dispensed with for respondents 1 and 2) Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the judgement and decree dated 19.11.2020 made in M.C.O.P.No.310 of 2017 on the file of the Motor Accidents Claims Tribunal / Subordinate Court, Perundurai and consequently, award compensation by allowing the Civil Miscellaneous Appeal. For Appellant : Mr.M.Guruprasad For Respondents : Mr.K.Vinod (For R3 & R4 ) Notice Dispensed with (For R1 & R2)