M/s National Insurance Co. Ltd. v. S.Chitra

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.04.2009CORAM:THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN ANDTHE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM C.M.A. No.1142 of 2008and M.P.No.2 of 2008M/s National Insurance Co. Ltd.,751, Anna SalaiChennai 2... Appellant /2nd Respondent-vs-1. S.Chitra2. T.S.Giridhar an (Minor) rep. His mother and next friend S.Chitra3. T.S.Rajalakshmi4. T.S.Krishnamachari5. R.Senthil (ex parte in lower Court).. Respondents/Petitioners/RespondentCIVIL MISCELLANEOUS APPEAL filed under Section 173 of MotorVehicles Act, 1988 against the judgment and decree dated 29.08.2007made in O.P.No.4287 of 2003 on the file of the Motor AccidentsClaims Tribunal, (Chief Court of Small Causes), Chennai.For Appellant : Mr.K.S.NarasimhanFor Respondents : Mr.V.M.Ravichandran (R1-4)J U D G M E N T(Judgment of the Court was delivered by PRABHA SRIDEVAN, J)The Insurance Company has challenged the award of Rs.22,44,777/-,granted as compensation to the claimants on account of the accidentthat took place on 29.06.2003 due to negligence of the driver of theinsured vehicle.2. When the application for permission to withdraw came up forhearing, both the learned counsel submitted that they would try towork out some mode of calculating the compensation, which would beacceptable to both parties. Accordingly the matter is listed todayand we have taken the appeal for final disposal.3. On 29.06.2003, the deceased was proceeding in his motor cyclein the Anna Main Road along with his wife seated on the pillion andhis son seated in front of him. He took a diversion and there was a https://hcservices.ecourts.gov.in/hcservices/ collision with the insured vehicle, the two wheeler. He sustainedinternal head injuries and died. The wife and minor survived in theaccident. They claimed a compensation of Rs.50,00,000/-. TheTribunal awarded Rs.22,44,777/-. 4. An appeal is filed by the Insurance Company contending thatthe Tribunal failed to note that the deceased had at least in partcontributed to his own death and therefore there was a contributorynegligence in this case and also questioning the quantum.5.The facts leading to the accident need to be noted. The sceneof occurrence was Anna Main Road. The deceased took a diversionthrough a gap in the median into the right side of the road. He didso because his own side of the road to the left of the Median wasunder repair and the road had been closed. The Insured vehicle wascoming from the opposite direction on its own side of the road, butit appears to have taken a sharp swerve to the right and there was ahead-on collision. The deceased lost his balance, fell down anddied. The Tribunal, while deciding the issue of negligence held thatEx.P.2, the rough sketch would show that the offending motor cyclehad drifted from its path and had come to its extreme right side andit is thus the accident occurred. The Tribunal rejected thesubmissions made on behalf of the Insurance Company regarding thecontributory negligence on the ground that there was no contraevidence to show that the vehicle was ridden by the deceased at highspeed and therefore the Tribunal rejected the submissions maderegarding the contributory negligence and held that the insuredvehicle was alone and solely responsible for the accident.6. Then the Tribunal decided the quantum. The deceased wasrunning two businesses by Truesel Associates and Truesel Engineers.He has allegedly drawing a monthly income of Rs.25,000/- toRs.30,000/-. The wife filed Exs.P8 to P21 to show the professionalfees earned by the deceased. On the basis of this, the Tribunalfixed the monthly income at Rs.6,000/- and after deducting 1/3rdarrived at an annual contribution of Rs.1,68,000/-. To prove hisage, the driving license (Ex.P.6) and Passport (Ex.P.22) were filed.40 was accepted as his age and a multiplier of 13 was adopted. Thepecuniary loss was therefore calculated at Rs.21,84,000/-. Towardsconventional damages, Rs.20,000/- towards consortium, Rs.25,000/-towards love and affection and Rs.5,000/- towards funeral expenseswere added. The claimants had also incurred medical expenses andthis was also added to the compensation amount, arriving atRs.22,44,777/-.7. The learned counsel for the appellant Insurance Companysubmitted that there were materials to show that the deceased hadlost balance while entering the other side of the road and therefore,at least to some extent had contributed to the accident. The learnedcounsel submitted that considering the circumstances and the factthat a very young wife had been left in the lurch because of theaccident, the Court may fix not more than 20% as a percentage ofcontribution of the deceased to the negligence. The learned counselalso submitted Second schedule may require 15 multiplier to beadopted. https://hcservices.ecourts.gov.in/hcservices/

8. The learned counsel appearing for the claimants submitted thatthe factual finding of the Tribunal was that the deceased was not atall responsible for the accident. But when we asked him whether itwas prudent on the part of the deceased to take two persons besideshimself to travel on a two wheeler which was meant only for twopassengers and would that not have contributed to the loss ofbalance, when swerving to the right, the learned counsel for theclaimants had no answer.9. We have considered the materials available on record. We haveseen the copy of the rough sketch, which has been produced before usby the learned counsel.10. It is clear that the offending vehicle had swerved sharplyacross the road. But the deceased who was entering the other side ofthe road turning north because of the road block ought to have beenvery cautious, since he was entering the wrong side of the road. Itis at this point the accident appears to have occurred due to lossof balance. The fact that he was carrying two passengers besideshimself has definitely resulted in the head-on collision and fromthe rough sketch we are also able to see that the deceased shouldhave seen the vehicle coming from the opposite direction. Therefore,definitely there is an element of contributory negligence especiallyin cases of head-on collision. 11. In this regard, we would like to strongly deprecate thepractice of drivers of two wheelers carrying more than one personbesides themselves in their vehicles. A Two wheeler is meant for adriver and a pillion rider alone and no more passengers. We hopethat the authorities who regulate the traffic will take strict actionin this regard.12. We are not able to understand whether the drivers value theirlives so cheaply; that they are willing to take the risk of death orgrievous injury. If they die they leave a family which suffers or ifthey are hopelessly injured, they may become like vegetables and be aburden on the surviving family. Either way this risk is not worthtaking. What is the duty of cyclists who turn casually, pedestrianswho ignore pedestrian crossing and do gymnastics on the median. Ifsuch persons lose their lives or are injured, are the four wheelerdrivers always to blame? With the increase of motor vehicles,accidents have also increased. In consonance with the socialphilosophy behind the provisions, we have legal pronouncements whichsay that the liability of the insurer is not purely and simply atortious liability. This is the spirit with which Section 163-A hasbeen acted. But every user of the road from a pedestrian to a heavyvehicle driver owes a duty of care and caution. Recently the policeof Union Territory of Puducherry rewarded persons followed trafficrules. Such efforts deserve to be congratulated. 13. We quote the following paragraphs in the case of ManagingDirector, Tamil Nadu State Transport Corporation (Coimbatore DivisionI) Limited, Coimbatore vs. Abdul Salam reported in (2003) 1 M.L.J.489 passed in C.M.A.No.8 of 2003 dated 29.01.2003:- https://hcservices.ecourts.gov.in/hcservices/ " 11. We are concerned as to whether such action ofthe individuals is permissible under law. The motorcycle and any other two wheelers are meant only fortwo persons, the rider and a pillion rider. If morethan two persons are travelling in a motor cycle orany other two wheeler, undoubtedly such action of theindividual would become illegal and unauthorised. Itis an awful sight when we come across three personstravelling in a motor cycle. They are sitting insuch a cramped manner that the rider of the motorcycle almost sitting on the petrol tank or at thefront edge of the seat. When he was sitting in such aposition, naturally because of the restrictedmovement of his legs, he cannot have the completecontrol over the brake. The movements of his handalso so restricted. When that be so, this Court isof the opinion that definitely the rider of the twowheeler cannot have full control over the vehicle.12. Apart from that, when three persons aretravelling in a motor cycle, two as pillion riders,any unusual movement of the pillion riders would makethe rider of the motor cycle to loose his controlover the vehicle. Even though such travelling ofthree persons in a motor cycle is contrary to thestatute, still the enforcement wing do not care totake note of the same and failed to take actionagainst their illegal action. Virtually because ofthe failure on the part of the enforcement wing, suchtravelling of three persons in the two wheelers havebecome a regular sight. Even though the highwaypatrolling is available but it is a rare sight to seea highway patrolling vehicle. The travelling ofthree persons has become rampant in the mofussils andin the city; especially among the youngsters like thecollege students. When that be the case, theenforcing authority is expected to enforce thestatute with some strictness to avoid any untowardincident. There is no purpose in conducting the RoadSafety Week without infusing the road sense incompliance of the Rules and Regulations of thestatute in the minds of those who are using thevehicles.13. When three persons travelled in a motorcycle which is meant for two persons, this court isof the view the conduct of the persons who travelledin such a manner are liable for contributorynegligence; especially when their action is contraryto the statute". We fully share the views expressed above. The accident in that casetook place in 1995. 14 years have passed. There is no improvement.In fact, we can see 4 or 5 persons travelling in a two wheeler withthe child in front totally blocking the vision of his father who isdriving. We can only shake our heads in despair. In that case, the https://hcservices.ecourts.gov.in/hcservices/ Division Bench held that the responsibility of the deceased was 50%.14. However we feel the degree of contributory negligence can befixed at 20% on the part of the deceased. We appreciate the fairnesswith which the learned counsel for the Insurance Company acceptedthat the percentage of negligence could be pegged down at 20%considering that the family is a young family which has lost itsbread winner. Therefore the contributory negligence is fixed at 20%.15. As regards the quantum, we are unable to fault the Tribunalfor fixing the monthly income as it has done. However, we will adopt15 as the multiplier. Therefore, the pecuniary loss works out toRs.168,000 x 15 = 25,20,000. The amounts awarded under the otherheads are confirmed.16. In the result, the Civil Miscellaneous Appeal is allowed andwe award as follows:Pecuniary Loss Rs.25,20,000/-ConsortiumRs. 10,000/-Love and AffectionRs. 15,000/-Medical ExpensesRs. 10,777/-Funeral ExpensesRs. 5,000/-Total compensation Rs.25,60,777/-Less: Contributory negligence Rs. 5,12,150/-at 20%------------------------- Rs.20,48,627/-rounded off Rs.20,50,000/-The aggregate figure would be Rs.20,50,000/-. As regards theinterest, we do not want to interfere. 17. The aforesaid amount shall be apportioned in the followingmanner:-1st Claimant : Rs.12,50,000/-2nd Claimant : Rs. 5,00,000/-3rd Claimant : Rs.1,50,000/-4th Claimant : Rs.1,50,000/-18. The Civil Miscellaneous Appeal is thus partly allowed andthe award of the Tribunal is set aside and modified to Rs.20,50,000/-as above.19. For complying with the condition for grant of stay, theappellant had deposited the entire amount. In view of our reducingthe award as above, the appellant is entitled to withdraw the excessamount deposited. As regards the 1st, 3rd and 4th respondents, they areentitled to withdraw their share as indicated above. As regards theshare of the minor, it shall be invested in any one of thenationalized bank initially for a period of three years in fixeddeposit till the minor attains majority subject to a minimum lock inperiod of three years and the first claimant/mother is also entitled https://hcservices.ecourts.gov.in/hcservices/ to receive the interest accrued thereon periodically directly fromthe bank. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrgTo1.Motor Accidents Claims Tribunal, Chief Court of Small Causes, Chennai2.The Section Officer, V.R.Section.1 cc To Mr.K.S.Narasimhan, Advocate, SR.121841 cc To Mr.Um.Ravichandran, Advocate, SR.12410C.M.A. No.1142 of 2008NM(CO)SRA(19/5/2009)