Both the appeals are arising out of the common judgment made in M.C.O.P.1397 of 2014, dated 21.09.2017, on the file of the Motor Accidents Claims Tribunal(Special Sub-Court), Tirunelveli.
2.For the sake of convenience, the parties are referred to as per their ranking in C.M.A(MD)No.602 of 2021.
3.The appellants-Claim Petitioners filed claim petition in M.C.O.P.No.1397 of 2014 alleging that the husband of the first Petitioner, who was working as Driver of the Tanker Lorry bearing Registration No. TN 05 AM 8362 was riding the vehicle on 4.9.2014. The deceased was driving the Tanker Lorry bearing Registration Number TN 05 AM 8362 belonging to the third respondent, insured with the fourth respondent, from Trichy to Chennai. At about 11.30 3/11 https://www.mhc.tn.gov.in/judis p.m., when the lorry reaching near Andal Alagar Engineering College near Mamandoor on the Tindivanam Chennai National Highways, all of a sudden in a point black the deceased spotted a lorry bearing Registration Number TN 22 AR 7940 belonging to the first respondent, insured with the second respondent, parked on the middle of the road without any park lamp despite the deceased applied sudden brake due to short distance the deceased lorry colluded with the rear portion of the first respondent stationed lorry. As a result of which, the deceased sustained serious injuries and immediately he was taken to Madras Medical College Hospital at Chennai, where he succumbed to his injuries.
4.The second respondent Insurance Company filed a counter stating that due to the rash and negligent driving of the deceased he had invited the accident and in the counter, it is further stated that the Cleaner of the third respondent's lorry filed a complaint before the Police stating that the accident occurred owing to the rash and negligent driving of the lorry by the deceased Selvaraj, who dashed against the first respondent's parked lorry carelessly. The Padalam Police after due enquiry, registered a case against the deceased Selvaraj in Crime No.533 of 2014 and the same is pending 4/11 https://www.mhc.tn.gov.in/judis enquiry. So it has been clearly proved that the deceased Selvaraj is solely negligent for the accident and he invited the death due to his rash and negligent driving of the Tanker Lorry. Hence the driver of the first respondent's lorry is not responsible for the accident and this respondent, being his insurer, is not at all liable to pay compensation, as alleged.
5.Before the Tribunal, the claim Petitioner Widow of the deceased examined herself as P.W.1 and the cleaner of the lorry as P.W.2 and another person is examined as P.W.3 and Ex.P1 to Ex.P5 were marked. P.W.3 is the agent of the owner of the lorry. On behalf of the respondents, R.W.1 to R.W.3 were examined and Ex.R1 to Ex.R6 were marked.
6.Taking into consideration the evidence of P.W.2, the occurrence witness, the Tribunal held that the evidence of the co- driver of the lorry examined as R.W.2 was disbelieved and also negatived the plea of contributory negligence and also that the accident has taken place due to the rash and negligent parking of the lorry without any indicator in the middle of the road and accordingly, fixed the liability on the second respondent/Offending 5/11 https://www.mhc.tn.gov.in/judis vehicle and awarded a sum of Rs.10,60,000/-. Aggrieved against the said finding, the Insurance Company has preferred this appeal in C.M.A(MD)No.704 of 2021, challenging both negligence as well as the quantum.
7.The claim Petitioners have also filed C.M.A(MD)No.602 of 2021 for enhancement of compensation as stated supra.
8.Heard both sides and perused the records placed before this Court.
9.The learned counsel for the claimants relied upon a decision of the Honourable Supreme Court in the case of K.Anusha and others .vs. The Regional Manager, Shriram General Insurance Company Limited reported in 2022(1) TN MAC 152(SC), wherein, the Honourable Supreme Court has held that when the car rammed into the parked lorry in the Highways without signal or indicator, has held that parking of the lorry without indicator in the Highways should be fixed with 100% negligence.
10.A perusal of the occurrence witness P.W.2 and that of 6/11 https://www.mhc.tn.gov.in/judis R.W.2, it is categorically admitted by R.W.2 that at the time of the accident, the respondent lorry was parked in the middle of the road for repair work and further he has also admitted that in the lorry, there is no light indicator nor any plant has been stalled so as to view the indication that vehicle is parked therein. If the driver of the lorry has pushed the lorry to the side of the road and parked the same, the accident could have been avoided and further, it is the specific evidence in the cross-examination of R.W.2 that while he was returning from Trichy to Chennai, near Mamandoor village, opposite to Andal Alagar Engineering College, the tipper lorry was parked on break down, without any signal in the middle of the road. At that time, the lorry which he was travelling dashed from the behind, at that time, it is 12.20 midnight. From the evidence of R.W.2, I find that the accident has taken place due to the wrongful parking of the lorry in the middle of road without any light indicator or natural indicator as stated supra and therefore the trial Court has fixed the negligence on the part of the driver of the lorry and consequently held that the respondents are jointly and severally liable to pay compensation and accordingly, the plea raised by the Insurance Company in C.M.A(MD)No.704 of 2021 is hereby stand negatived.
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11.On the point of quantum of compensation, heard the learned counsels.
12.After hearing the learned counsel for the claimants and the Insurance Company, based upon Ex.P2 Post mortem Certificate, the age of the deceased Selvaraj found to be 53 years and in the absence of any contra evidence, the same is adopted and multiplier of 11 is adopted as per Sarla Verma's case.The deceased was a senior Driver. The date of the accident is 4.9.2014 and hence the notional income of the deceased is taken as Rs.13,000/- and since the deceased is 53 years at the time of accident, as per Pranay Sethy's Case, he is entitled to 10% future prospects. Accordingly the income of the deceased is reassessed at Rs.13,000/-+ Rs.1300 = Rs.14,300/-. Since there are three dependants, the deduction towards personal expenses is taken as 1/3 and the pecuniary loss sustained by the claim Petitioners are reassessed as Rs.14,300/- x 12x11x2/3=Rs.12,58,400/-. For the loss of filatial consortium to the first claimant Widow, she is entitled to Rs.40,000/- and the parental consortium for claimants 2 and 3 are each entitled to Rs.40,000/- totalling to Rs.80,000/-. Further, this Court awards Rs.15,000/- for transport expenses, Rs.15,000/- for funeral expenses and another 8/11 https://www.mhc.tn.gov.in/judis Rs.15,000/- for loss of estate and accordingly, the total compensation is arrived at Rs.14,23,400/- with interest at the rate of 7.5%p.a.
13.In the result, C.M.A(MD)No.602 of 2021 is partly allowed to the extent as indicated above, enhancing the compensation from Rs.10,60,000/- to Rs.14,23,400/- with interest at the rate of 7.5% pa.,from the date of claim petition till the date of realisation. The second respondent Insurance Company is directed to deposit the modified enhanced award amount with proportionate accrued interest and costs, less the award amount, if any already deposited, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, the claimants are permitted to withdraw their share in the award amount with proportionate accrued interest and costs, as per the terms and ratio of apportionment made by the Tribunal, by filing necessary application before the Tribunal.The claimants are directed to pay the proportionate court fee for the modified enhanced award amount, less the court fee , if any, already paid. Only on payment of such Court fee, Registry is directed to draft the decree in this appeal. No costs.
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14.In view of the claimants' appeal being allowed in part, the Civil Miscellaneous Appeal filed by the Insurance Company in C.M.A. (MD)No.704 of 2021 stands dismissed. The Tribunal is directed to refund the excess Court fee, if any already paid by the appellant Insurance Company, as per law. No costs. Consequently, connected miscellaneous Petition is dismissed.
29.04.2022 Index:Yes/No Internet:Yes/No vsn To
1.The Motor Accidents Claims Tribunal, The Special Sub-Judge, Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
10/11 https://www.mhc.tn.gov.in/judis RMT.TEEKAA RAMAN.,J.
vsn PRE-DELIVERY COMMON JUDGMENT IN C.M.A(MD)Nos.602 and 704 of 2021 and C.M.P(MD)No.6434 of 2021 29.04.2022 11/11 https://www.mhc.tn.gov.in/judis