IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30..09..2011 CORAM THE HON’BLE Mr.M.Y.EQBAL, CHIEF JUSTICE C.M.A. No.2216 of 2009 & M.P.No.1 of 2009 United India Insurance Company Ltd., No.19, Aandiappa Gramani Street, Royapuram, Chennai – 13. ..Appellant/2nd respondent. Vs. 1. Mrs. Revathy 2. Vimala Devi (Minor), 3. Kamala Rajeswari (Minor), (Minors are represented by their Mother & Natural Guardian Mrs.Revathy viz., the 1st respondent herein) ..Respondents 1 to 3/ Petitioners. 4. D.Dayabaran ..4th respondent/1st respondent. (R-4 Set ex parte in the Lower Tribunal) Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree of the Motor Accident Claims Tribunal (Chief Judge, Court of Small Causes), Chennai dated 07.07.2008 passed in M.C.O.P.No.163 of 2006. For Appellant :: Mr.K.S.Narasimhan For Respondents 1 to 3 :: Mr.N.Baskaran J U D G M E N T The Insurance Company has preferred this appeal challenging the compensation awarded by the Motor Accident Claims Tribunal (Chief Judge, Court of Small Causes), Chennai in M.C.O.P.No.163 of 2006 dated 7.7.2008 as excessive and exorbitant. 2. The facts of the case lie in a narrow compass :- On 10.03.2005 at about 4 p.m. when the deceased was walking on the Medavakkam Main Road and when he was nearing opposite to Trend Poly Company, the 4th respondent’s driver drove his auto in a rash and negligent manner and dashed against the deceased. Due to the said https://hcservices.ecourts.gov.in/hcservices/ accident, the deceased sustained head and multiple injuries all over the body, and he succumbed to the injuries and died even before reaching the hospital. The widow of the deceased and their two minor daughters filed Claim Petition before the Tribunal alleging that at the time of his death the deceased was aged about 36 years, that he was an advocate by profession, having good practice and earning Rs.12,000/- per month, that he is the sole bread-winner, and that the Insurance Company and the owner of the auto viz., the appellant and the 4th respondent herein are jointly and severally liable to pay compensation. 3. Before the Tribunal the 4th respondent – owner of the vehicle remained absent and set exparte. The Insurance Company contested the Claim Petition by filing a counter affidavit alleging that the claimants are bound to prove the date, time, manner of the accident, involvement of the vehicle, its ownership, etc. It is further alleged that the claimants have omitted to implead the parents of the deceased as parties to the Claim Petition. The Claimants are bound to prove that the deceased had a very good practice and was an assessee of income-tax. The counter further alleged that the deceased was solely responsible for the accident on account of his contributory negligence. Finally, it was contended that the amount of Rs. 25 lakhs claimed by the claimants are wholly excessive and exorbitant. 4. In the additional counter filed by the Insurance Company it denied the version of the claimants that at the time of accident the deceased was only a pedestrian walking on the road and not riding any scooter, and it claimed that the accident was occurred only due to the rash and negligent driving of his kinetic scooter by the deceased. 5. On the basis of the respective contentions, the Tribunal has formulated the following questions for its consideration:- “1) Whether the petitioners are entitled to maintain the claim petition as the legal heirs of the fatal accident victim? 2) Whether the accident occurred due to the rash and negligent driving of the auto owned by the first respondent and is insured with the second respondent at the time of the accident? 3) Whether the accident occurred due to the rash and negligent driving of the kinetic scooter by the deceased as pleaded in the additional counter filed by the second respondent – Insurance Company? 4) Whether the petitioners are entitled to get the petition mentioned amount as compensation from the respondents 1 and 2? 5) To what any other relief?” https://hcservices.ecourts.gov.in/hcservices/ 6. On the side of the Claimants 14 Exhibits have been marked and 3 witnesses were examined. On the side of the Insurance Company 2 witnesses adduced their evidence. 7. After considering the relevant materials on record, the Tribunal on the first question held that the Claimants are the legal heirs viz., wife and minor daughters of the deceased. On the manner of the accident and negligence, the Tribunal held that the auto driver is solely at fault for the accident, and after considering the post mortem, death report and death certificate relating to the deceased, the Tribunal held that the victim died due to the injuries sustained by him in the accident, and as such the Insurance Company and the Owner of the Auto are jointly and severally liable to pay compensation to the claimants. On the question of compensation, the Tribunal awarded a compensation of Rs.8,30,000/- (Rupees eight lakhs and thirty thousands only) with interest at the rate of 7.5% per annum. 8. Aggrieved against the said award, the Insurance Company has preferred the present appeal alleging that the compensation awarded is wholly excessive and exorbitant, that the Tribunal omitted to consider the contributory negligence on the part of the deceased, that the fixation of Rs.7,500/- p.m. as contribution by the deceased and on that basis awarding a sum of Rs.7,80,000/- towards pecuniary loss is highly excessive, that awarding Rs.40,000/- towards conventional damages and Rs.10,000/- towards transport and funeral expenses are disproportionate, inflated and contrary to the rulings of the Apex Court. 9. Learned counsel appearing on behalf of the appellant- Insurance Company mainly contended that the auto-rickshaw was not the cause for the accident, and the Tribunal failed to take into consideration the evidence, particularly the report of the Investigator appointed by the Insurance Company, who has reported that the auto-rickshaw was not involved in the accident. 10. I am unable to accept the submission made by the learned counsel. Firstly, the report of the Investigator cannot be relied upon on the sole ground that two years after the accident took place, the Insurance Company deputed one Surveyor/Investigator to visit the spot where the accident took place and submit a report. First of all, I am of the opinion that the report submitted by the Investigator is not admissible in evidence for deciding the question as to which vehicles were involved in the accident. Secondly, it will appear from the impugned judgment that the Tribunal has discussed and analyzed the entire evidence of the witnesses and also considered the First Information Report lodged against the driver of the auto-rickshaw immediately after the accident. A criminal case was also registered against the auto-rickshaw driver. The manner in https://hcservices.ecourts.gov.in/hcservices/ which the accident took place as narrated in the F.I.R. is fully supported by the witnesses who had seen the occurrence. Hence, the finding of fact recorded by the Tribunal on the factum and the manner of the accident cannot be disturbed. I do not find any conclusive evidence to differ from the finding recorded by the Tribunal. 11. For the reason aforesaid, there is no merit in this appeal, which is accordingly dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar sm/ab To The Motor Accidents Claims Tribunal (Chief Judge, Court of Small Causes) Chennai 1 cc To Mr.K.S.Narasimhan, Advocate, SR.61491 1 cc To Mr.M.Kothandam, Advocate, SR.61392 Judgment in C.M.A. No.2216 of 2009 SK(CO) RH (14.10.11) https://hcservices.ecourts.gov.in/hcservices/