C.M.A.No.3109 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.3109 of 2021
and C.M.P.No.17599 of 2021
The Branch Manager
Reliance General Insurance Co. Ltd.
Ist floor, Gee Jay Arcade
No.141/71, T.V.Samy Road
West R.S.Puram, Covai. ... Appellant
Vs.
1.Shanmugham
2.Viswanathan ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 25.11.2014 made
in M.C.O.P.No.308 of 2010 on the file of the Motor Accident Claims
Tribunal, Additional Sub Court, Tiruppur.
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https://www.mhc.tn.gov.in/judis
C.M.A.No.3109 of 2021
For Appellant : Mrs.C.Bhuvanasundari
For R1 : Mr.MA.P.Thangavel
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 25.11.2014 made in M.C.O.P.No.308 of 2010 on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Tiruppur.
2.The appellant/Insurance Company is the 2nd respondent in M.C.O.P.No.308 of 2010 on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Tiruppur. The 1st respondent filed the said claim petition claiming a sum of Rs.24,00,000/- as compensation for the injuries sustained by him in the accident that took place on 26.12.2009.
3.According to the 1st respondent, on the date of accident i.e., on 26.12.2009 at about 8.30 P.M., while he was riding in his motorcycle bearing Registration No.TN-39-AE-3974 on Somanur to Karanampettai Road, near 2/11 https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021 Ram Nagar, Karukkampalayam, from North to South direction, the driver of the share auto rickshaw bearing Registration No.TN 39 AK 6285 belonging to the 2nd respondent, who was coming in the same direction, drove the same in a rash and negligent manner, dashed on the back side of the motorcycle driven by the 1st respondent and caused the accident. In the accident, the 1st respondent sustained grievous injuries all over the body. Therefore, the 1st respondent has filed the above claim petition claiming compensation against the 2nd respondent, owner of the share auto rickshaw and appellant/Insurance Company, insurer of the said vehicle.
4.The 2nd respondent, owner of the share auto rickshaw remained exparte before the Tribunal.
5.The appellant/Insurance Company filed counter statement denying the averments made in the claim petition and stated that the accident has occurred only due to negligence of the 1st respondent, who rode the motorcycle in a rash and negligent manner. The owner and insurer of the motorcycle driven by the 1st respondent were not made as parties to the 3/11 https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021 proceedings and hence, the claim petition is bad for non-joinder of necessary parties. Therefore, the appellant is not liable to pay any compensation to the 1st respondent. In any event, the amount claimed by the 1st respondent is excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1 and Dr.Dhanasekar, was examined as P.W.2 and 11 documents were marked as Exs.P1 to P11. The appellant/Insurance Company did not let in any oral and documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the share auto rickshaw belonging to the 2nd respondent and directed the appellant/Insurance Company being the insurer of the said share auto rickshaw to pay a sum of Rs.21,16,000/- as compensation to the 1 st respondent.
8.Against the said award dated 25.11.2014 made in M.C.O.P.No.308 of 2010, the appellant/Insurance Company has come out with the present appeal. 4/11 https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021
9.The learned counsel appearing for the appellant/Insurance Company contended that no independent witness other than the 1st respondent was examined to prove the manner of accident. Mere filing of F.I.R. against the driver of the share auto rickshaw is not a substantive piece of evidence to come to a conclusion that the accident has occurred only due to rash and negligent driving by the driver of the share auto rickshaw. The Tribunal ought to have fixed contributory negligence on the part of the 1st respondent. The learned counsel further contended that 1st respondent claimed that he was the Proprietor of SMR Tex and was earning a sum of Rs.2,90,536/- per annum. The 1st respondent has not filed any document to prove that the said business has been closed. Even after the accident, he can continue his business and there is no total loss of income. The Tribunal without considering the same, adopted multiplier method and granted excessive amounts as compensation towards loss of earning power. The amounts granted by the Tribunal under different heads are excessive and prayed for setting aside the award of the Tribunal.
5/11 https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021
10.The learned counsel appearing for the 1st respondent made his submissions in support of the award passed by the Tribunal and contended that the total compensation awarded by the Tribunal is not excessive and prayed for dismissal of the appeal.
11.During pendency of this appeal, the 2nd respondent, owner of the share auto rickshaw died.
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.From the materials on record, it is seen that it is the case of the 1st respondent that on 26.12.2009 at about 20.30 hours, while he was riding in his motorcycle bearing Registration No.TN-39-AE-3974 on Somanur to Karanampettai Road, near Ram Nagar, Karukkampalayam, from North to South direction, the driver of the share auto rickshaw bearing Registration No.TN 39 AK 6285 belonging to the 2nd respondent, who was coming in the 6/11 https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021 same direction, drove the same in a rash and negligent manner, dashed on the back side of the motorcycle driven by the 1st respondent and caused the accident. To substantiate the said claim, the 1st respondent examined himself as P.W.1 and deposed to that effect and marked the F.I.R., which was registered against the driver of the share auto rickshaw, as Ex.P1. It is the case of the appellant that accident is not due to the negligence of the driver of the share auto rickshaw belonging to the 2nd respondent and it is only due to negligence on the part of the 1st respondent. The appellant has not examined either the driver of the share auto rickshaw or any witness to substantiate their contention. The contention of the learned counsel appearing for the appellant that only based on the F.I.R., negligence cannot be fixed is concerned, the Court can take into account the contents of F.I.R. along with other materials available to come to the conclusion about the negligence. In the present case, neither the 2nd respondent nor the appellant gave any objection for the F.I.R. being registered against the driver of the share auto rickshaw. In view of the same, the present contention of the learned counsel appearing for the appellant that negligence cannot be fixed based on the F.I.R., cannot be accepted. The Tribunal considering the materials placed 7/11 https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021 before it, Ex.P1 F.I.R. and in the absence of any evidence by the appellant, held that the accident has occurred due to rash and negligent driving by the driver of the share auto rickshaw belonging to the 2nd respondent and fastened the liability on the appellant. There is no error in the said finding of the Tribunal warranting interference by this Court.
14.As far as quantum of compensation is concerned, in the accident, the 1st respondent sustained grievous injuries all over the body and suffered fractures in right leg, right knee, right great toe and right hand was amputated. He has taken treatment as in-patient in Ramakrishna Hospital, Coimbatore, for three months and spent huge amount towards medical expenses. Due to the injuries and amputation, he suffered disability and could not do his normal work as he was doing earlier. To substantiate this contention, the 1st respondent examined himself as P.W.1 and deposed to that effect. The 1st respondent examined Dr.Dhanasekar as P.W.2. P.W.2/Doctor deposed about the nature of injuries, amputation of right hand, fractures in right leg, right knee, right toe and injuries all over the body. P.W.2/Doctor has elaborately deposed that the 1st respondent cannot do the work as he was 8/11 https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021 doing earlier and described the discomfort faced by the 1st respondent. P.W.2 examined the 1st respondent, assessed the disability and certified that 1st respondent suffered 87.3% disability. The Tribunal considering the evidence of P.W.2/Doctor, nature of injuries, disability suffered by the 1st respondent and amputation of right hand, fixed the disability of the 1st respondent at 80% and granted compensation by adopting multiplier method.
14(i). The contention of the learned counsel appearing for the appellant is that the 1st respondent is the Proprietor of SMR Tex and he has not produced any material to show that 1st respondent closed the said business and suffered total loss of earning capacity. If at all any loss, he would have suffered only reduction in income and not total loss of income. The said contention is not acceptable. In view of the evidence of P.W.2/Doctor, who has deposed that 1st respondent cannot do any work as he was doing earlier, the said evidence is uncontroverted. From the above materials, it is seen that the 1st respondent has lost his total earning capacity. In view of the evidence of P.W.2 and in the absence of any contra evidence by the appellant, finding of the Tribunal fixing disability and adopting multiplier method does not 9/11 https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021 warrant any interference by this Court. The total compensation granted by the Tribunal is not excessive warranting interference by this Court.
15. In the result, this Civil Miscellaneous Appeal is dismissed and the sum of Rs.21,16,000/- awarded by the Tribunal as compensation to the 1st respondent along with interest and costs is confirmed. The appellant/Insurance Company is directed to deposit the entire amount awarded by the Tribunal along 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. On such deposit, the 1st respondent is permitted to withdraw the entire amount awarded by the Tribunal along with interest and costs, less the amount if any, already withdrawn. Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (V.S.G., J) 13.09.2022 Index : Yes / No kj 10/11 https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021 V.M.VELUMANI,J.
and V.SIVAGNANAM,J.
kj To
1.The Additional Subordinate Judge Motor Accident Claims Tribunal Tiruppur.
2.The Section Officer VR Section High Court Madras.
C.M.A.No.3109 of 2021 and C.M.P.No.17599 of 2021 13.09.2022 11/11 https://www.mhc.tn.gov.in/judis