C.M.A.No.188 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A. No.188 of 2021
and C.M.P.No.1328 of 2021
The Branch Manager,
Reliance General Ins. Co. Ltd.,
Shri Lakshmi Complex, 1st Floor, Omalur Main Road,
Bharathi Street, Swarnapuri,
Salem 636 004. .. Appellant
Vs.
1.P.Vinothkumar
2.S.Sekar .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 10.12.2019, made
in M.C.O.P. No.2241 of 2016, on the file of the Special Sub Court No.1,
(Motor Accident Claims Tribunal), Salem.
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https://www.mhc.tn.gov.in/judis
C.M.A.No.188 of 2021
For Appellant : Mr.C.Bhuvanasundari
For R1 : Mr.C.Thangaraj
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.] This Civil Miscellaneous Appeal has been filed by the appellant- Insurance Company against the judgment and decree dated 10.12.2019, made in M.C.O.P. No.2241 of 2016, on the file of the Special Sub Court No.1, (Motor Accident Claims Tribunal), Salem.
2.The appellant is the 2nd respondent in M.C.O.P. No.2241 of 2016, on the file of the Special Sub Court No.1, (Motor Accident Claims Tribunal), Salem. The 1st respondent/claimant filed the said claim petition, claiming a sum of Rs.25,00,000/- as compensation for the injuries sustained by him in the accident that took place on 10.07.2016.
3.According to the 1st respondent, on the date of accident, at about 9.30 a.m, when he was riding as a pillion rider in a Motorcycle bearing _____ 2/12 https://www.mhc.tn.gov.in/judis C.M.A.No.188 of 2021 Registration No.TN-39-BC-0724 owned by the 2nd respondent, on the Tharapuram to Sangarandampalayam road, near Alampalayam Alangkattu Thottam, the rider of the Motorcycle rode the same in a rash and negligent manner without observing the traffic rules of the road, lost control and hit against the road barrier and caused the accident. In the accident, the 1 st respondent sustained multiple grievous injuries all over his body. The accident occurred only due to rash and negligent riding by the rider of the Motorcycle owned by the 2nd respondent and hence, the 1st respondent filed the said claim petition claiming compensation against the 2nd respondent and appellant-Insurance Company as owner and insurer of the Motorcycle respectively.
4.The 2nd respondent, owner of the Motorcycle, remained exparte before the Tribunal.
5.The appellant, insurer of the Motorcycle, filed counter statement and denied all the averments made by the 1st respondent in the claim petition, _____ 3/12 https://www.mhc.tn.gov.in/judis C.M.A.No.188 of 2021 including involvement of the 1st respondent in the alleged accident. According to the appellant-Insurance Company, as per the sketch prepared by the Police, the accident occurred only due to rash and negligent riding by rider of the Motorcycle without following traffic rules. The injuries sustained by the 1st respondent is not due to the alleged accident. The accident took place on 10.04.2016, as alleged by the 1st respondent, while the FIR was lodged belatedly only on 13.04.2016. From the Accident Register of G.H., Dharapuram, it is seen that at the time of accident, the 1st respondent had breath smell of alcohol. The accident occurred only due to the negligent act of the 1st respondent. Hence, for the negligent act of the 1st respondent, the appellant as insurer of the said Motorcycle is not liable to indemnify the 2nd respondent. In any event, the 1st respondent has to prove his age, avocation and income, treatment taken, injuries sustained and medical expenses incurred to claim compensation and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1 and marked 8 documents as Exs.P1 to P8. The appellant did not let in any _____ 4/12 https://www.mhc.tn.gov.in/judis C.M.A.No.188 of 2021 oral and documentary evidence. Two documents were marked as Exs.C1 & C2.
7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred only due to rash and negligent riding by rider of the Motorcycle and directed the appellant as insurer of the said vehicle to pay a sum of Rs.24,64,021/- as compensation to the 1st respondent.
8.Against the said award of the Tribunal dated 10.12.2019, made in M.C.O.P. No.2241 of 2016, the appellant - Insurance Company has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company contended that the Tribunal erred in holding that the accident occurred only due to the rash and negligent riding by rider of the Motorcycle owned by the 2nd respondent. As per the FIR lodged by the father of the rider of the _____ 5/12 https://www.mhc.tn.gov.in/judis C.M.A.No.188 of 2021 Motorcycle, it is evident that his son lost his balance due to headlight from oncoming vehicle and there is no mention of rash and negligent riding of Motorcycle anywhere. The 1st respondent was admitted in the Richmond Hospital only on 15.07.2016, while the accident occurred on 10.07.2016. The 1st respondent was under the influence of alcohol. In view of the same, he did not file the Accident Report copy. The discharge summary states that the 1st respondent skidded and fell down from Motorcycle. The two witnesses viz., Kumar and Rajkumar, who according to the FIR witnessed the fall of the 1st respondent, were not examined by the 1st respondent and the Police. Hence, the appellant-Insurance Company is not liable to indemnify the 2nd respondent/owner of the Motorcycle. In any event, the 1st respondent who claims that he was aged 30 years at the time of accident, without any proof, alleges that he was a student of Hotel Management. The Tribunal, having held that the 1st respondent completed 30 years, as per the Aadhar Card, erred in applying multiplier '17', instead of applying the correct multiplier '16'. The Tribunal having equated 80% disability as loss of earnings and awarded Rs.50,000/- for prosthetic leg, failed to consider that due to the said award of _____ 6/12 https://www.mhc.tn.gov.in/judis C.M.A.No.188 of 2021 Rs.50,000/- for prosthetic leg, his earning capacity would have increased. The 1st respondent, with an intention to claim 7.5% interest, wantonly filed incomplete petition. The total compensation granted by the Tribunal is excessive and prayed for setting aside the award of the Tribunal.
10.The learned counsel appearing for the 1st respondent made submissions in support of the award of the Tribunal with regard to negligence fixed on the rider of the Motorcycle. He further submitted that the Tribunal considering the nature of injuries, Ex.P4-wound certificate, Ex.P5 – discharge summary and Ex.C1-disability certificate issued by the Medical Board, Omalur, rightly accepted the 80% permanent disability suffered by the 1 st respondent and awarded compensation towards loss of earning capacity due to permanent disability. The amounts awarded by the Tribunal under different heads are not excessive and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant-Insurance Company as well as the 1st respondent and perused the entire materials available on record.
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12.From the materials on record, it is seen that it is the case of the 1st respondent that on the date of accident, when he was riding as a pillion rider in the Motorcycle owned by the 2nd respondent, on Dharapuram to Sangarandampalayam road, near Alampalayam Alangkattu Thottam, the rider of the Motorcycle rode the same in a rash and negligent manner without observing the traffic rules of the road, lost control due to the headlight of the vehicle coming from opposite direction and hit against the road barrier and caused the accident. To substantiate his case, the 1st respondent examined himself as P.W.1 and marked the FIR as Ex.P1. Deposition of P.W.1 corroborated with the contents of FIR. On the other hand, it is the case of the appellant-Insurance Company that the accident occurred only due to the negligent act of the 1st respondent who was traveling as a pillion rider in the Motorcycle under the influence of alcohol. To substantiate their case, they have not examined the rider of the Motorcycle or any other independent witness. In the absence of any contra evidence to the evidence of 1st respondent as P.W.1, the Tribunal considering the evidence of P.W.1, Ex.P1 – FIR, Ex.P2 – Motor Vehicle Inspector's Report and Ex.P3- Final Report, held _____ 8/12 https://www.mhc.tn.gov.in/judis C.M.A.No.188 of 2021 that the accident occurred only due to rash and negligent riding by rider of the Motorcycle owned by the 2nd respondent. There is no error in the said finding of the Tribunal warranting interference by this Court.
13.As far as the quantum of compensation is concerned, it is case of the 1st respondent that at the time of accident, he was aged 30 years and was studying Hotel Management. In the accident, he sustained grievous multiple injuries and fracture of femur right with vascular injury. The Medical Board, Omalur examined the 1st respondent and certified that the 1st respondent suffered 80% disability. P.W.1 has deposed that due to the injuries sustained in the accident, he could not continue his studies. The Tribunal, on perusal of the disability certificate marked as Ex.C1, which reveals that the 1st respondent sustained 80% disability and evidence of P.W.1, held that the 1st respondent suffered functional disability and rightly applied multiplier method for awarding compensation towards loss of earning capacity. But for the accident, considering the age and educational qualification of the 1st respondent, he would have obtained good job with decent salary. The _____ 9/12 https://www.mhc.tn.gov.in/judis C.M.A.No.188 of 2021 accident is of the year 2016. The Tribunal considering the age, date of accident and educational qualification of the 1st respondent, following the judgment of the Hon'ble Apex Court in the case of [V.Mekala Vs. M.Malathi and another], fixed a sum of Rs.7,500/- per month as notional income, which is not excessive. The 1st respondent was aged 30 years at the time of accident. The Tribunal following the judgments of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others] and 2009 (2) TNMAC 1 SC Supreme Court [Sarla Verma & others vs. Delhi Transport Corporation & another], rightly granted 40% enhancement towards future prospects and applied the multiplier '17', in awarding compensation towards loss of earning capacity for 80% disability. In the absence of any contra evidence to Ex.P6, the Tribunal accepted Ex.P6 – medical bills and awarded a sum of Rs.3,99,421/- towards medical expenses. Considering the nature of injuries and period of treatment taken by the 1st respondent, the amounts awarded by the Tribunal under different heads are not excessive, warranting interference by this Court. _____ 10/12 https://www.mhc.tn.gov.in/judis C.M.A.No.188 of 2021
14.In the result, the appeal is dismissed and the amount awarded by the Tribunal at Rs.24,64,021/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit is confirmed. The appellant-Insurance Company is directed to deposit the award amount together with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.2241 of 2016. On such deposit, the 1st respondent is permitted to withdraw the award amount, along with interest and costs, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (V.S.G., J) 09.09.2022 Index : Yes/No Speaking Order : Yes/No gsa _____ 11/12 https://www.mhc.tn.gov.in/judis C.M.A.No.188 of 2021 V.M.VELUMANI, J.
and V.SIVAGNANAM, J.
(gsa) To
1.The Special Subordinate Judge No.1, (Motor Accident Claims Tribunal), Salem.
2.The Section Officer, V.R Section, High Court, Madras.
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