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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.SUBBIAH, C.SARAVANAN, JJ.
United India Insurance Company Ltd. - Appellant
Versus
Kaveri and Ors - Respondent
C.M.A.Nos.1245, 1264, 1321, 1327 of 2020 and C.M.P.Nos.8266, 8429, 8430 of 2020
Decided On : 02-06-2021
Tamil Nadu Motor Vehicles Rules, 1989 - Rule 380 - Civil Procedure Code, 1908 - Section 11 - Motor Accident Claims - Death - Contributory negligence - Vehicle abandoned on the road - Compensation - Claimant before Tribunal has since deceased. She was wife of deceased, co-passenger and mother of deceased, driver of insured car involved in accident. The other claimants are two daughters/ sisters of these deceased persons - Held, There is preponderance of probability for inferring negligence on part of driver of insured lorry for having left lorry parked on a busy highway to fix entire liability on driver of isured lorry for accident. However, on a over all facts and circumstances, court inclined to fix 80% contributory negligence on part of driver of insured lorry and 20% on driver of the insured car - In absence of direct and independent evidence of an eyewitness regarding the manner in which accident took place, it has to be construed that driver of lorry-RW3 was indeed negligent for having the parked the lorry unattended on a busy highway. Further, there is no evidence forthcoming from RW3 the driver of lorry as to whether he had switched on the danger signal to warn the vehicles on the highway to fix entire liability on the driver of insured lorry for accident. However, on a over all facts and circumstances, we are inclined to 80% negligence on the part of the driver of the insured lorry and 20% on the driver of the insured car - Order accordingly.
JUDGMENT :
C.SARAVANAN, J.
1. By this common order we are disposing all the four appeals. These appeals are directed against the impugned common judgment and separate decrees dated 28.11.2017 passed in M.C.O.P Nos. 179 and 180 of 2010 by the Motor Accident Claims Tribunal, Sub Court, Sankari.
2. By the impugned common judgment and separate decrees in MCOP Nos. 179 and 180 of 2010, the Tribunal has awarded the following compensation to the claimant [the Appellant in C.M.A.No.1321 of 2020 and C.M.A.No.1327 of 2020] payable by the insurer of the Car namely the United India Insurance Company Ltd [the appellant in CMA Nos. 1245 and 1264 of 2020] and by the insurer of lorry bearing registration No. TN. 49 R. 8509, namely the New India Assurance Company Limited, [one of the respondent in these appeals] as detailed below:-
|
| Amount Awarded by the Tribunal | Compensation Apportioned by the Tribunal. | |
| The United India Insurance Company Ltd.- The Appellant in CMA Nos. 1245 and 1264 of 2020 (80% of the award Amount) | New India Assurance Company Limited. (20% of the award amount) | ||
| MCOP No. 179 of 2010 [For the death of the co-passenger Mr.Kandasamy] | 4,60,000 | 3,68,000.00 | 92,000.00 |
| MC0P No. 180 of 2010 [For the death of the Driver of the car Mr.Arul] | 60,65,000 | 49,32,000.00 | 12,33,000.00 |
3. CMA Nos.1321 and 1327 of 2020 have been filed by the legal heirs of the deceased Mr.Kandasamy and the deceased Mr.Arul S/o Mr.Kandasamy who died in an accident while CMA Nos. 1245 and 1264 of 2020 have been filed by United India Insurance Company Ltd., the insurer of the Car.
4. Since the parties are both appellant and respondent in the respective appeals, they shall be referred to as claimant and the insurer of car and insurer of the lorry for the sake of convenience.
5. The 1st Claimant before the Tribunal has since deceased. She was the wife of deceased late Mr.Kandasamy, the co-passenger and the mother of deceased Mr.Arul, driver of the insured car involved in the accident. The other claimants are the two daughters/the sisters of these deceased persons.
6. They have questioned the conclusion and the reasoning of the Tribunal fixing contributory negligence on the driver of the car deceased Mr.Arul. The Tribunal has fixed 80% liability on the driver of the car for the accident.
7. On the other hand, CMA Nos. 1245 and 1264 of 2020 have been filed by insurer of the car namely United India Insurance Company Ltd. which had insured the car in which the deceased travelled along with other injured passengers on 07.03.2010.
8. Brief facts of the case are that on 07.03.2010, Tata Indigo car, bearing registration No. TN.34 J3510 insured with the United India Insurance Company Ltd [the appellant in CMA Nos. 1245 and 1264 of 2020] was driven by its Mr. Arul aged about 34 years. In the said car, his father Mr.Kandasamy aged about 68 years had travelled as a co-passenger along with three other relatives at the back of the car as other co-passengers.
9. The accident is said to have taken place at about 10 PM in the night on 07.03.2010 when the insured car hit the lorry from behind as a result of which all the occupants of the car suffered grievous injuries. Mr.Kandasamy succumbed to the injuries on the spot while his son Mr.Arul, driver of the car, later died in the hospital on the following day.
10. The other occupants in the car namely Mrs.Shanthi, Mr.Ravichandran and their minor son Master Jai Chandru suffered grievous injuries due to the accident and were admitted in a hospital for treatment.
11. Thus, five different claim petitions were filed. Three claims in M.C.O.P.Nos.201-203 of 2010 were filed by injured person before the same Tribunal which culminated in a common judgment and three separate decrees dated 10.11.2017. These cases were decided by the Tribunal separately.
12. Two claims in M.C.O.P Nos. 179 and 180 of 2010 file
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