C.M.A.No.176 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.176 of 2019
and
C.M.P.No.841 of 2019
The Divisional Manager,
M/s. The New India Insurance Company Limited,
No.1, C.S.I. Complex, Anna Salai,
Vellore, Vellore District. .. Appellant
Vs.
1.N.Mohan
2.Joint Director,
Health Department,
Kanchipuram. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
03.08.2018 made in M.C.O.P.No.347 of 2016 on the file of the Motor
Accidents Claims Tribunal, Chief Judicial Magistrate Court, Vellore.
For Appellant : Mr.J.Michael Visuvasam
For R1 : Mr.M.Sivakumar
for Mr.C.Prabakaran
For R2 : Mr.Devnarenderan
Government Advocate (C.S)
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C.M.A.No.176 of 2019
JUDGMENT
The matter is heard through “Video-Conferencing”.
2.This Civil Miscellaneous Appeal has been filed against the award dated 03.08.2018 made in M.C.O.P.No.347 of 2016 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Vellore.
3.The appellant is the 2nd respondent in M.C.O.P.No.347 of 2016 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Vellore. The 1st respondent filed the said claim petition, claiming a sum of Rs.20,00,000/- as compensation for the injuries sustained by him in the accident that took place on 23.11.2013.
4.According to 1st respondent, on 23.11.2013 at about 08.30 P.M., while he was riding his motorcycle on the extreme left side of the Katpadi – Latheri Main Road near Venkatesapuram bus stop, the driver of the Ambulance bearing Registration No.TN 21 G 0356 belonging to 2nd respondent, who was driving the ambulance in a rash and negligent manner from the opposite direction without blowing horn endangering public safety, 2/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.176 of 2019 dashed against the motorcycle rode by the 1st respondent and caused the accident. In the accident, the 1st respondent sustained multiple grievous injuries and immediately he was admitted in the C.M.C. Hospital, Vellore. Therefore, the 1st respondent filed the said claim petition claiming a sum of Rs.20,00,000/- as compensation for the injuries sustained by him against the 2nd respondent and appellant-Insurance Company, being the owner and insurer of the Ambulance respectively.
5.The 2nd respondent-owner of the Ambulance filed counter statement and denied various averments made by the 1st respondent. According to 2nd respondent, the driver of the Ambulance drove the same cautiously by following the road traffic rules and the 1st respondent only rode his motorcycle without seeing the oncoming Ambulance, suddenly turned to his right side, dashed against the Ambulance and invited the accident. The driver of the Ambulance was possessing valid driving license and the 2 nd respondent's Ambulance was insured with the appellant at the time of accident. Hence, the appellant is only liable to pay the compensation to the 1st respondent if any amount was awarded by the Tribunal. The owner of the motorcycle rode by the 1st respondent has to be impleaded as necessary party 3/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.176 of 2019 in the claim petition. In any event, the quantum of compensation claimed by the 1st respondent is exorbitant and prayed for dismissal of the claim petition.
6.The appellant-Insurance Company, being the insurer of the Ambulance belonging to 2nd respondent filed counter statement and denied all the averments made by the 1st respondent. The appellant denied the manner of accident as alleged by the 1st respondent. According to the appellant, the driver of the 2nd respondent's Ambulance drove the same by following the road traffic rules and only the 1st respondent, who was under the influence of alcohol, rode his motorcycle in a rash and negligent manner, suddenly turned the motorcycle to his right side, dashed against the Ambulance and invited the accident. The Criminal Case registered against the driver of the 2nd respondent's Ambulance was closed as Mistake of Fact. Hence, the appellant is not liable to pay any compensation to the 1st respondent. The appellant denied the age, avocation, income, nature of injuries and treatment taken by the 1st respondent. In any event, the quantum of compensation claimed by the 1st respondent is highly excessive and prayed for dismissal of the claim petition.
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7.Before the Tribunal, the 1st respondent examined himself as P.W.1 and 10 documents were marked as Exs.P1 to P10. On behalf of the 2nd respondent and appellant, one M.Baskaran was examined as R.W.1 and one document was marked as Ex.R1. Further, Medical Inspection Report was marked as Ex.C1.
8.The Tribunal considering the pleadings, oral and documentary evidence held that the accident occurred only due to rash and negligent driving by the driver of the Ambulance belonging to 2nd respondent and directed the appellant to pay a sum of Rs.4,53,784/- as compensation to the 1st respondent.
9.Against the said award dated 03.08.2018 made in M.C.O.P.No.347 of 2016, the appellant has come out with the present appeal.
10.The learned counsel appearing for the appellant contended that the accident has occurred only due to the negligence on the part of the 1 st respondent who while coming from a bye-lane to busy highways without minding traffic suddenly turned to the right. The appellant examined their 5/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.176 of 2019 official as R.W.1 and proved the negligence on the part of the 1st respondent. The Tribunal erred in not considering the evidence of R.W.1 that 1st respondent was under the influence of alcohol and 1st respondent is responsible for the accident. In Ex.P4/wound certificate it was mentioned that 1st respondent was under the influence of alcohol. The Tribunal failed to see that Ambulance was coming with sounding horn carrying chest pain patient, following the Rules of Road Regulations. The Tribunal failed to appreciate that F.I.R. registered against the driver of the Ambulance was closed as mistake of fact and the same was mentioned in the counter statement filed by the appellant. The 1st respondent has not raised any objections to the same. The Tribunal erroneously accepted the evidence of 1st respondent in the absence of any material evidence and fastened the liability on the appellant. The 1st respondent failed to prove the avocation and income. The Tribunal erroneously fixed a sum of Rs.9,000/- per month as notional income of the 1st respondent and awarded a sum of Rs.36,000/- towards loss of income. The total compensation awarded by the Tribunal is excessive and prayed for setting aside the award of the Tribunal.
11.Per contra, the learned counsel appearing for the 1st respondent 6/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.176 of 2019 contended that accident has occurred only due to rash and negligent driving by the driver of the Ambulance belonging to 2nd respondent. The 1st respondent has proved the negligence by examining himself as P.W.1 and by marking documents. The reliance of the appellant on the final report is not the credential to fix negligence. The Tribunal considering the evidence of 1st respondent and materials placed before it, rightly held that accident has occurred only due to the negligence on the part of the driver of the Ambulance belonging to 2nd respondent and considering the nature of injuries and disability assessed by Medical Board, treatment taken, awarded compensation under different heads which are not excessive and prayed for dismissal of the appeal.
12.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the 1st respondent and perused the entire materials on record.
13.It is the case of the 1st respondent that while the 1st respondent was riding his motorcycle, the driver of the Ambulance belonging to 2 nd respondent drove the Ambulance in a high speed without blowing horn in a 7/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.176 of 2019 rash and negligent manner, dashed against the 1st respondent and caused the accident. In the accident, the 1st respondent sustained multiple injuries and has taken treatment as inpatient. In support of his case, he examined himself as P.W.1 and marked F.I.R., which was registered against the driver of the Ambulance as Ex.P1. On the other hand, it is the case of the appellant that accident has occurred only due to the negligence on the part of the 1 st respondent who under the influence of alcohol suddenly came from a bye-lane to main road and dashed on the Ambulance which was coming following the rules by sounding horn from Latheri to Katpadi carrying chest pain patient. In support of his case, the appellant examined its official as R.W.1. The Tribunal considering the oral and documentary evidence let in before it, fixed negligence on the part of the driver of the Ambulance. From the award of the Tribunal, it is seen that the Tribunal has not considered the evidence of R.W.1 and has not given any finding with regard to evidence of R.W.1. From the award of the Tribunal it is seen that the brother of the 1 st respondent has given complaint against the driver of the Ambulance based on which F.I.R. was registered. In the complaint, it was stated that while the 1st respondent was riding his motorcycle from North and turned towards West, accident has occurred. This shows that accident has occurred on the Western 8/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.176 of 2019 side of the road which is right hand side of the 1st respondent. The Tribunal also has not considered the case of the appellant that Ambulance was driven by the driver sounding horn and 1st respondent coming from bye-lane to Main Road, dashed against the Ambulance without minding the traffic in the Highways. The appellant also contended that the F.I.R. registered against the driver of the Ambulance was closed as mistake of fact.
14.The learned counsel appearing for the appellant also relied on the final report. From the records it is seen that final report was not filed before the concerned Magistrate. At the same time, it has to be taken note that appellant has mentioned the same in the counter statement filed in the M.C.O.P. The 1st respondent has not disputed that final report was filed as mistake of fact. The 1st respondent has filed Ex.P4/wound certificate. The learned counsel appearing for the appellant relied on Ex.P4/wound certificate and submitted that 1st respondent was under the influence of alcohol and caused the accident. The Tribunal rejected the said contention as no blood test was conducted to ascertain the presence of alcohol content in the blood. There is no error in the said finding. At the same time, considering the entire materials, especially the fact that 1st respondent came from bye-lane from 9/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.176 of 2019 North to turning towards Western side in the Highways, this Court is of the considered view that 1st respondent also contributed negligence to the accident. Considering the type of vehicles involved in the accident, 60% negligence is fixed on the part of the driver of the Ambulance belonging to 2nd respondent and 40% negligence is fixed on the part of the 1st respondent. As insurer of the Ambulance belonging to 2nd respondent, the appellant is liable to pay only 60% of the compensation awarded.
15.As far as quantum of compensation is concerned, the Tribunal considering the nature of injuries, treatment taken and disability assessed by Medical Board, awarded compensation under different heads, which are not excessive warranting interference by this court.
16.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.4,53,784/- together with interest and costs is hereby confirmed. The appellant-Insurance Company is directed to deposit 60% of the award amount, (i.e., Rs.2,72,270/-) along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, less the amount already deposited, if any, within a period of six 10/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.176 of 2019 weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.347 of 2016 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Vellore. On such deposit, the 1st respondent is permitted to withdraw the award amount along with interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The appellant-Insurance Company is permitted to withdraw the excess amount lying in the credit of M.C.O.P.No.347 of 2016, if the entire award amount has been already deposited by them. Consequently the connected Miscellaneous Petition is closed. No costs.
04.01.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Chief Judicial Magistrate,
Motor Accidents Claims Tribunal,
Vellore.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.176 of 2019
V.M.VELUMANI, J.
krk
C.M.A.No.176 of 2019
04.01.2021
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