C.M.A.No.1023 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A. No.1023 of 2022
and C.M.P.No.7548 of 2022
Reliance General Ins. Co. Ltd.,
rep. By its Authorised signatory,
Officers Line, Opposite to Lakshmi Theatre,
(Opposite to HDFC Bank),
Vellore. .. Appellant
Vs.
1.K.Sathishkumar
2.Jayachandra Raju .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 25.01.2019, made
in M.C.O.P. No.136 of 2014, on the file of the Sub Court, (Motor Accident
Claims Tribunal), Arakkonam.
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https://www.mhc.tn.gov.in/judis
C.M.A.No.1023 of 2022
For Appellant : Mr.C.Bhuvanasundari
For R1 : Mr.J.Vasu
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 25.01.2019, made in M.C.O.P. No.136 of 2014, on the file of the Sub Court, (Motor Accident Claims Tribunal), Arakkonam.
2.The appellant is the 2nd respondent in M.C.O.P. No.136 of 2014, on the file of the Sub Court, (Motor Accident Claims Tribunal), Arakkonam. The 1st respondent/claimant filed the said claim petition, claiming a sum of Rs.30,00,000/- as compensation for the injuries sustained by him in the accident that took place on 04.07.2013.
3.According to the 1st respondent, on the date of accident, at about 10.00 p.m, when he was riding as a pillion rider in a Motorcycle, the driver of _____ 2/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 the Eicher Mini Lorry bearing Registration No.TN-73-A-3789 owned by the 2nd respondent, drove the same in a rash and negligent manner and hit behind the Motorcycle and caused the accident. In the accident, the 1 st respondent sustained grievous injuries on his head, leg and all over the body. The accident occurred only due to rash and negligent driving by the driver of the Eicher Mini Lorry 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 Lorry respectively.
4.The 2nd respondent, owner of the Eicher Mini Lorry, remained exparte before the Tribunal.
5.The appellant, insurer of the Lorry, filed counter statement and denied all the averments made by the 1st respondent in the claim petition. According to the appellant-Insurance Company, on the date of accident, at about 10.00 P.M., when the 1st respondent and one Karthik were travelling as pillion riders in the Hero Honda Splendor Motorcycle bearing Registration _____ 3/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 No.TN-73-W-2001, driven by one Vinothkumar, from Sholinghur towards Banavaram without observing the traffic rules and regulations and without noticing the Eicher Mini Lorry bearing Registration No.TN-73-A-3789 which was coming in the same road in the same direction behind the Motorcycle in a slow and cautious manner, the rider of the Motorcycle suddenly tresspassed into the path of the Eicher Mini Lorry and invited the accident. The accident occurred only due to rash and negligent riding by rider of the Motorcycle in which the 1st respondent travelled. At the time of accident, 3 persons traveled in the Motorcycle, whereas the seating capacity is only 2. Hence, the 1st respondent also contributed negligence to the accident. The FIR has been lodged after 4 days of the accident. The 2nd respondent has violated the policy conditions by permitting the driver to drive the Eicher Mini Lorry without any valid driving license, Permit and Fitness certificate. Hence, the appellant as insurer of the said Lorry is not liable to indemnify the 2 nd 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. _____ 4/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022
6.Before the Tribunal, the 1st respondent's wife viz., Jayasudha was examined as P.W.1, Vinothkumar, one of the pillion rider, was examined as P.W.2, one Sivan was examined as P.W.3 and one Premkumar was examined as P.W.4 and 12 documents were marked as Exs.P1 to P12. The appellant- Insurance Company examined their Assistant Manager as R.W.1 and marked 2 documents as Exs.R1 & R2.
7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by driver of the Eicher Mini Lorry and fixed 10% contributory negligence on the part of the 1 st respondent and 90% negligence on the part of the driver of the Eicher Mini Lorry. Though 10% contributory negligence was fixed on the part of the 1st respondent, the Tribunal directed the appellant as insurer of the said vehicle to pay a sum of Rs.19,90,096/-, being the entire compensation awarded to the 1st respondent at the first instance and recover the same from the 2nd respondent/owner of the Eicher Mini Lorry.
8.Against the said award of the Tribunal dated 25.01.2019, made in _____ 5/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 M.C.O.P. No.136 of 2014, 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 having held that the 1st respondent also contributed negligence by travelling 3 persons at the time of accident, erroneously fixed contributory negligence on the 1st respondent only at 10% without considering the judgment reported in 2017 (1) TNMAC 484 [Oriental Insurance Company Ltd. Vs. Johnson and others], wherein 20% contributory negligence has been fixed for triple riding. Having fixed 10% contributory negligence on the part of the 1st respondent, the Tribunal erroneously awarded entire amount as compensation to the 1 st respondent. The 1st respondent has produced disability certificate to show that he suffered 60% disability. The Tribunal erroneously held that the 1st respondent suffered 70% disability and granted excess amount as compensation by adopting multiplier method and hence, prayed for setting aside the award of the Tribunal.
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10.Per contra, the learned counsel appearing for the 1 st respondent made submissions in support of the award of the Tribunal and submitted that due to the disability, the 1st respondent has lost his hearing capacity and he could not continue his daily work and is depending on others. The Tribunal considering the same, fixed the disability of the 1st respondent as 70% and granted compensation for 70% disability. The Tribunal considering the oral and documentary evidence, rightly held that the accident occurred due to the negligence on the part of the driver of the Eicher Mini Lorry. Having fixed the negligence on the part of the driver of the Eicher Mini Lorry, the Tribunal erroneously fixed 10% contributory negligence on the part of the 1 st respondent 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.
12.From the materials on record, it is seen that it is the case of the 1 st _____ 7/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 respondent that while he was riding as a pillion rider in a Motorcycle, the driver of the Eicher Mini Lorry owned by the 2nd respondent and insured with the appellant drove the same in a rash and negligent manner, dashed on the Motorcycle and caused the accident. To substantiate his case, he examined himself as P.W.1 and deposed to that effect. He has also marked the FIR which was registered against the driver of Eicher Mini Lorry as Ex.P1. It is the case of the appellant-Insurance Company that on the date of accident, when the 1st respondent and one Karthik were travelling as pillion riders in the Motorcycle driven by one Vinothkumar, from Sholinghur towards Banavaram without observing the traffic rules and regulations and without noticing the Eicher Mini Lorry which was coming in the same road in the same direction behind the Motorcycle in a slow and cautious manner, the rider of the Motorcycle suddenly tresspassed into the path of the Eicher Mini Lorry and invited the accident. The accident occurred only due to rash and negligent riding by rider of the Motorcycle in which the 1 st respondent travelled. To substantiate their case, the appellant did not examine the driver of Eicher Mini Lorry or any eye-witness to disprove the evidence of P.W.1. The Tribunal _____ 8/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 considering the evidence of P.W.1 and Ex.P1 - FIR, held that the accident occurred due to rash and negligent driving by driver of Eicher Mini Lorry owned by the 2nd respondent. At the time of accident, three persons including 1st respondent were travelling in the Motorcycle. When three persons are travelling in a Motorcycle wherein only two persons were permitted to travel, the rider of the Motorcycle will not have full control over the Motorcycle as most of the time, he will be almost sitting in the petrol tank of the Motorcycle. This Court has consistently taken a view that when three persons travel in a Motorcycle, they also contribute negligence and fixed 20% contributory negligence on the part of the rider of the Motorcycle as well as on pillion riders. The issue of contributory negligence fixed on the part of three persons travelling in a Motorcycle came up for consideration before the Hon'ble Apex Court. In the judgment reported in 2020 (1) TN MAC 161 (SC) [Mohammed Siddique and another Vs. National Insurance Co. Ltd., and others], the Hon'ble Apex Court has held that even if three persons were traveling in a Motorcycle, it must be proved that they also contributed for the accident. Unless negligence is proved on the part of three persons travelling in the _____ 9/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 Motorcycle, no negligence can be automatically fixed on them. The relevant portion of the said judgment reads as follows:
“13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or _____ 10/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance.
14. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.” In the present case, the accident occurred only when the Eicher Mini Lorry _____ 11/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 dashed on the Motorcycle from behind. In view of the above and as per the judgment of the Hon'ble Apex Court, contributory negligence cannot be fixed on the part of the 1st respondent. Having fixed 10% contributory negligence on the part of the 1st respondent, the Tribunal did not deduct any amount from the total compensation awarded.
13.It is the contention of the learned counsel appearing for the appellant-Insurance Company that the 1st respondent has produced disability certificate stating that he suffered 60% disability and Tribunal erroneously fixed 70% disability. The 1st respondent appeared before the Medical Board and there is no functional disability and loss of earning capacity. In the absence of any documents to prove the functional disability, the Tribunal erroneously adopted multiplier method and granted excess amount of compensation for 70% disability. It is the further case of the learned counsel appearing for the appellant that the Tribunal held that the 1st respondent has not proved that he suffered loss of income. In the Accident Register and discharge summary, the nature of injuries suffered by the 1st respondent was _____ 12/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 mentioned only as simple injuries and Tribunal erroneously granted compensation by adopting multiplier method. From the award of the Tribunal, it is seen that the 1st respondent has produced disability certificate which was marked as Ex.P5, certifying that the 1 st respondent has suffered 60% disability. The Tribunal considering the fact that part of the skull is removed, face of the 1st respondent is totally changed and hearing capacity of the 1st respondent is affected, granted compensation by adopting multiplier method for 70% disability. The Medical Board examined the 1st respondent and certified that he suffered 60% disability. The 1st respondent appeared before this Court when the matter is taken up for hearing. We observed him in the open Court. Considering the nature of injuries and disability suffered by the 1st respondent, the compensation granted by the Tribunal for 70% disability is not interfered with. In view of the judgment of the Hon'ble Apex Court referred to above, contributory negligence cannot be fixed on the 1 st respondent.
14.In the result, the appeal is dismissed and the amount awarded by the _____ 13/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022 Tribunal at Rs.19,90,096/- 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.136 of 2014 at the first instance and recover the same from the 2nd respondent. 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) 15.09.2022 Index : Yes/No Speaking Order : Yes/No gsa To _____ 14/16 https://www.mhc.tn.gov.in/judis C.M.A.No.1023 of 2022
1.The Subordinate Judge, (Motor Accident Claims Tribunal), Arakkonam.
2.The Section Officer, V.R Section, High Court, Madras.
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and V.SIVAGNANAM, J.
(gsa) C.M.A. No.1023 of 2022 15.09.2022 _____ 16/16 https://www.mhc.tn.gov.in/judis