Madras High Court
M/S.The New India Assurance vs Kuppan on 28 April, 2021
C.M.A.No.3536 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.3536 of 2011
and M.P.No.1 of 2011
M/s.The New India Assurance
Company Limited,
Rep. by its Divisional Manager,
Motor Third Party Cell,
No.69/70, Sheikpet Nadu Street,
Kancheepuram. ... Appellant
-vs-
1.Kuppan
2.S.Ravi ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, against the award dated 9th of June, 2011, passed in
M.C.O.P.No.8 of 2006, by the Hon'ble Additional Subordinate Judge at
Chengalpattu.
For Appellant : M/s.J.Michael Visuvasam
For Respondents : Mr.S.S.Swaminathan for R1
R2 - Notice Unserved
*********
1/8
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3536 of 2011
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award
dated 9th of June, 2011, passed in M.C.O.P.No.8 of 2006, by the Hon'ble
Additional Subordinate Judge at Chengalpattu.
2. For the sake of convenience, the parties are referred to hereunder
according to their litigative status before the Tribunal.
3. The case of the claimant is that on 01.03.2005 when the petitioner
was walking along with GST Road, Opposite to Guduvanchery Hospital
with his brother on the left side of the road, a Motor Cycle was driven by its
rider in a rash and negligent manner and dashed behind the claimant and
caused accident. Due to the accident, the claimant sustained fracture of
right leg, right hand, cheek, head injuries and other all over his body.
Immediately, he was taken to Chengalpattu Medical College Hospital and
he was treated as in-patient for two months and further he also continued his
treatment as out patient. The petitioner was a mason at the time of accident
and he was earning Rs.200/- per day. Due to the disability, he could not
continue his avocation. Hence, the claim petition.
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C.M.A.No.3536 of 2011
4. Resisting the same, the second respondent filed counter and stated
that only because of the rash and negligent manner of the claimant the
accident was took place. Though the complaint was lodged as against the
rider of the vehicle, the vehicle was owned by the first respondent and that
the accident did not happen due to rash and negligent driving of the rider of
the vehicle.
5. On the side of the claimant, P.W.1 and P.W.2 were examined and
Ex.P1 to Ex.P6 were marked. On the side of the respondents no one was
examined and Ex.R1 was marked. On a perusal of the evidence available
on record and also considering the submissions made by the learned counsel
appearing on either side, the Tribunal fastened the negligence and liability
on the first respondent and awarded a sum of Rs.3,26,200/- (Rupees Three
Lakhs Twenty Six Thousand Two Hundred only) as compensation.
Aggrieved by the same, the second respondent filed the present Civil
Miscellaneous Appeal challenging on the question of liability as well as the
quantum.
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C.M.A.No.3536 of 2011
6. The learned counsel appearing for the appellant would submit that
the rider of the Motor Cycle had no license and the rider of the Motor Cycle
also was not initially impleaded in the petition. Therefore, who had driven
the Motor Cycle is not proved by the claimant and as such, the Tribunal
concluded that the first respondent caused the accident and the Tribunal
ordered compensation payable by the first respondent and as such, the
second respondent was directed to pay compensation with liberty to recover
the same from the first respondent. Whereas the decree does not find the
said liberty and also the conclusion portion of the Judgment the said liberty
is missing.
7. In respect of the quantum is concerned, the claimant was earning a
sum of Rs.200/- as a mason and he sustained fracture on his right leg.
P.W.2 / Doctor was examined, who assessed disability at 45%. Therefore,
the Tribunal ought not to have adopted the multiplier method to award
compensation.
8. Per contra, the learned counsel for the claimant would submit that
though the Tribunal awarded Rs.3,26,200/- as compensation, the Tribunal
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C.M.A.No.3536 of 2011
failed to award any compensation under the heads of Loss of Amenities and
Attenders Charges. The claimant, being a mason, he has to stand all along
day. The P.W.2 categorically deposed that he cannot stand along and he
had 30% Rigid Muscles and as such, he could not continue his avocation.
Therefore, the Tribunal adopted the multiplier method and awarded
compensation.
9. Heard M/s.J.Michael Visuvasam, learned counsel appearing for the
appellant and Mr.S.S.Swaminathan, learned counsel appearing for the first
respondent.
10. Admittedly, the claimant did not maintain the name and address
of the driver incharge of the vehicle at the time of accident. The Motor
Cycle which was involved in the accident was owned by the first
respondent. Further, the driving license of the rider of the Motor Cycle was
also not marked before the Tribunal. The Tribunal rightly concluded that
the second respondent is directed to pay the compensation with liberty to
recover the same with the first respondent. However, it does not find place
in the decree.
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C.M.A.No.3536 of 2011
11. Insofar as the quantum of the compensation is concerned, the
Tribunal adopted the multiplier method at 45% for permanent disability.
The injured was a mason at the time of accident and he was earning a sum
of Rs.200/- per day. Even then, the Tribunal taken a sum of Rs.3000/- as
monthly income and adopted the multiplier method for the permanent
disablement at 45%. Though the Tribunal adopted the multiplier at 16
instead of 15, the Tribunal failed to award any compensation under the
heads of Loss of Amenities and Attenders Charges. Therefore, the quantum
of compensation does not find any interference. Insofar as the direction is
concerned, the award is modified to the effect that the second respondent is
directed to pay the compensation with liberty to recover the same from the
first respondent.
12. In the result the Civil Miscellaneous Appeal is partly allowed.
There shall be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
28.04.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
rna
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3536 of 2011
To
1.The Additional Subordinate Judge,
Motor Accidents Claims Tribunal,
Chengalpattu.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3536 of 2011
G.K.ILANTHIRAIYAN, J.
rna
C.M.A.No.3536 of 2011
and M.P.No.1 of 2011
28.04.2021
https://www.mhc.tn.gov.in/judis/
