IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.04.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2687 OF 2008 & M.P.Nos.1 of 2008 and 1 of 2010 The United India Insurance Co. Ltd., Motor Third Party Claims Office, South India Co-op. Building, 3rd Floor, No.38, Anna Salai, Chennai – 2. ... Appellant/2nd Respondent Vs. 1.A.Vijaya ... 1st Respondent/Petitioner 2.Shri Raghavendra Constructions, No.514-A, Anna Nagar, 3rd Main Road, 3rd Floor, N.S.K.Nagar, Chennai – 106. ..2nd Respondent/Ist Respondent (Exparte in Trial Court. Hence given up) (Deleted vide order of Court dated 11.12.2009 made in M.P.No.1 of 2009) Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated 28.11.2007, made in M.C.O.P.No.1141 of 2004 on the file of the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai. For Appellant : Mr.G.Kathirvelu For Respondents: Mr.R.Manoranjithan (R-1) - - - J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant / United India Insurance Company Limited against the award and decree dated 28.11.2007, passed in M.C.O.P.No.1141 of 2004 on the file of the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts of the case are as follows:- The victim was lying in front of his house on 22.11.2002 at about 02.10 hours, at that time, the respondent's Motorcycle bearing Registration No.TN02-K-5041 came in the wrong direction and ran over the neck of the victim, as a result, he had succumbed to his injuries. Hence, the mother of the deceased filed the claim petition against the respondent for a compensation a sum of Rs.5,00,000/- with interest. 3.The Insurance Company had filed a counter statement and opposed the claim petition. The respondent denied that the deceased was lying in front of his corridor, when at that time, the first respondent-motorcycle came in the wrong direction and ran over the neck of the deceased. The respondent further denied the age, income and occupation of the deceased besides the claim amount is excessive. The respondent had not furnished particulars pertaining to the rider and bike particulars. At the time of the accident, the rider of the motorcycle had consumed alcohol, besides the claim amount is excessive. 4.On the averments of both parties, the Tribunal had framed four issues for consideration, namely; "(i)Whether the accident had happened due to the rash and negligent riding of the rider of the motorcycle bearing Registration No.TN02-K-5041? (ii)Whether the respondents are liable to pay compensation? (iii)Whether the petitioner is entitled for the compensation? (iv)To what relief" 5.On the side of the claimant, PW1-claimant was examined and nineteen documents were marked which are as follows: AR Copy, X-ray Receipt, CT Brain and Neck receipt, Entrance book, medical bills, ambulance bill, discharge summary, handicapped book (identity card), handicapped certificate, driving licence, record sheet (school), death certificate, postmortem certificate, death report, Burial ground certificate, legal-heir certificate, copy of the FIR, copy of the rough sketch and supeona. On the side of the respondents one witness was examined and two documents were marked. 6.PW1 had adduced evidence stating that she is the mother of the deceased and the age of the deceased was 21 years and he was engaged as a driver and was earning a sum of Rs.4,000/- per month. 7.On considering the evidence of the witnesses and documentary evidence, the Tribunal had fashioned the liability on https://hcservices.ecourts.gov.in/hcservices/ the Insurance Company, since the accident had been committed by the rider of the motorcycle and granted compensation a sum Rs.3,73,800/- together with interest at the rate of 7.5% per annum. 8.The learned counsel for the appellant specifically argued that the rider of the motorcycle had consumed alcohol at the time of the accident, as such negligence is on the side of the motorcyclist. The learned counsel argued that the charge sheet disclosed that the case was filed under Section 185 of the Motor Vehicle Act, stating that the rider of the motorcycle was in a drunken state. In support of his contention, the learned counsel has cited the following judgment:- Muthu, K v. C.Chandrasekar reported in 2000 (III) CTC 21:- “Policy issued by Insurance Company stipulated that Insurance Company was not liable for payment for accidental loss or damage suffered while insured or any person driving with his knowledge was under influence of liquor or drugs – Such clause does not absolve insurance company when third party sustains injuries on account of accidents in which while covered by insurance is driven by or under influence of liquor – Right of insurance company is to pay amount to injured and claim same from insured.” 9.Learned counsel for the claimant argued that there was no medical test to prove that the rider of the motorcycle had consumed alcohol, the deceased's age was 21 years and was earning a sum of Rs.4,000/- per month as a driver besides daily batta. 10.Per contra, the learned counsel for the appellant argued that the deceased's age was 22 years and he was a bachelor as such 50% contribution to be deducted towards personal expenses of the deceased, in this case 1/3rd was deducted. Learned counsel for the claimant replied that the multiplier method adopted as “11” instead of “16”. 11.On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award passed by the learned Motor Accidents Claims Tribunal, this Court is of the considered opinion that the deceased's age was 22 years and he was a driver by profession, the widowed mother lost her only son and she is in a deserted condition besides, the compensation amount a sum of Rs.3,73,800/- is not on the higher side for the loss of an earning son. Therefore, this Court confirms the award which is fair and justifiable under the heads of loss of dependency, love and affection and funeral expenses. https://hcservices.ecourts.gov.in/hcservices/ 12.On 20.08.2008, this Court imposed a condition on the appellant / Insurance Company to deposit entire award amount with accrued interest thereon and costs to the credit of M.C.O.P.No.1141 of 2004 on the file of the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai. Further, on 25.06.2010, this Court permitted the claimant to withdraw 50% of the amount with proportionate interest and costs without furnishing any security. Now, it is open to the claimant to withdraw the balance compensation amount with accrued interest and costs lying in the credit of M.C.O.P.No.1141 of 2004 on the file of the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai, after filing memo along with this order. 13.Resultantly, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai made in M.C.O.P.No.1141 of 2004, dated 28.11.2007 is confirmed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed. r n s Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai. + 1 cc to Mr. R. Manoranjitham, Advocate SR No.27040 + 1 cc to Mr. G. Kathiravelu, Advocate SR No.26943 RK(CO) SR/23.6.2011 C.M.A.NO. 2687 OF 2008 https://hcservices.ecourts.gov.in/hcservices/