Madras High Court
The Branch Manager vs K.Sivaguru on 11 August, 2021
C.M.A.No.2231 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.2231 of 2016 &
CMP.No.15830 of 2016
The Branch Manager,
United India Insurance Co. Ltd.,
Branch Office, No.460/20,
First Floor, 8th 'B' Main Road,
Next to Jain Temple,
4th Block, Bangalore-11,
C/o. The Divisional Manager,
United India Insurance Co. Ltd.,
Divisional Office,
M.M.Reddy Complex,
Old Bangalore Road,
Hosur – 635 109. ... Appellant
Vs
1.K.Sivaguru
2.Y.R.Prasad ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act 1988 against the Judgment and Decree dated
04.06.2021 in MCOP.No.48 of 2012 on the file of the Motor Accident
Claims Tribunal (Subordinate Judge) at Hosur.
1/8
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C.M.A.No.2231 of 2016
For Appellant : Ms.R.Sree vidhya
For Respondent 1 : Mr.Mukund R.Pandiyan
JUDGMENT
(Heard through video conferencing)
This civil miscellaneous appeal has been filed by the Insurance
company challenging the award dated 04.06.2015 passed by the Motor
Accident Claims Tribunal ( Subordinate Judge at Hosur) in MCOP.No.48 of
2012.
2. Heard Ms.R.Sree Vidhya, learned counsel for the Appellant
Insurance Company and Mr.Mukund R Pandiyan, learned counsel for the
first respondent. The second respondent has remained exparte both before
this Court as well as this Court.
3. The Appellant Insurance company has challenged the impugned
award on the following grounds (a) the entire fault for the cause of the
accident is on the side of the first respondent/claimant and therefore, they
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C.M.A.No.2231 of 2016
are not liable to pay the compensation and (b) the quantum of compensation
awarded by the Tribunal is excessive.
4. With regard to the first contention raised by the Appellant is
concerned, the Appellant Insurance Company has filed Ex.R1 which is the
final report submitted by the police after investigation and as per the said
final report, the complaint given against the driver of the car insured with
the Appellant was closed as mistake of fact as according to the Police after
investigation, it was only the first respondent/claimant who is responsible
for the cause of the accident. As seen from the final report (Ex.R1) while
taking 'U' turn, the first respondent/claimant while riding his two wheeler
had not given proper signal which resulted in the collision between the car
insured with the Appellant and the two wheeler in which the first
respondent/claimant was a rider.
5. Originally FIR was registered only against the driver of the insured
vehicle which was marked as Ex.P3 before the Tribunal. After investigation,
Ex.R1 has been filed wherein the police have stated that the driver of the
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C.M.A.No.2231 of 2016
insured car is not at fault. However, the Appellant/Insurance Company has
not examined the driver of the insured car as a witness before the Tribunal.
It is also not known whether the first respondent/claimant was investigated
by the Police, before the final report Ex.R1 was filed by them. However,
considering the fact that the Police have filed final report closing the
complaint as mistake of fact and after perusing the said final report, this
Court is of the considered view that some amount of contributory
negligence will have to be fixed on the part of the first respondent/claimant
also, instead of totally absolving his responsibility for the cause of the
accident. After giving due consideration to the evidence available on record
including the final report of the Police (Ex.R1), this Court fixes the
contributory negligence of the first respondent/claimant at 20% and the
contributory negligence of the driver of the insured car at 80%.
6. With regard to the quantum of compensation awarded by the
Tribunal is concerned, the Tribunal has awarded a total compensation of
Rs.3,45,500/-. Based on the disability certificate issued by the Doctor at
50% which has been marked as an exhibit before the Tribunal, the Tribunal
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C.M.A.No.2231 of 2016
has awarded a disability compensation at Rs.1,50,000/- calculated at
Rs.3,000/- per percentage of disability for the 50% disability. The first
respondent/claimant has sustained the following injuries namely (a) Fracture
in left frontal bone + left basifrontal contusion; (b) Sub-conjunctival
Ecchmosis left eye, (c) Fracture Zygoma Left non-displaced fracture, (d)
Peri Orbital Edema Left side, (e) Nape of neck abdomen right side and (f)
Abdomen in left side frontal region as a result of an accident. Being head
injuries and in view of the fact that the Doctor has assessed the disability at
50% and when no contra evidence has been produced by the Appellant
Insurance company before the Tribunal to disprove the said disability, this
Court confirms the disability as assessed by the Tribunal under the
impugned award which is based on the Doctor's disability certificate. Hence,
the disability compensation awarded by the Tribunal at Rs.1,50,000/-
calculated at Rs.3,000/- per percentage of disability for the 50% disability is
confirmed by this court.
7. The Tribunal has awarded a compensation of Rs.60,000/- towards
pain and suffering, Rs.39,000/- towards loss of income during the period of
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C.M.A.No.2231 of 2016
treatment, Rs.37,000/- towards medical bills as per the bills submitted by
the first respondent/claimant before the Tribunal, Rs.26,500/- towards
damage to the first respondent/claimant's vehicle, Rs.5,000/- towards extra
nourishment, Rs.10,000/- towards transportation and Rs.18,000/- towards
Attender charges which in the considered view of this Court cannot be
considered to be excessive. Only after giving due consideration to the nature
of injuries sustained by the first respondent/claimant, the Tribunal has
assessed the quantum of compensation payable to the first
respondent/claimant. Therefore, there is no scope for interference by this
Court in this regard.
8. Excepting for fixing the contributory negligence on the side of the
first respondent/claimant at 20%, the assessment of compensation awarded
by the Tribunal under the impugned award is not interfered with by this
Court.
9. For the foregoing reasons, this civil miscellaneous appeal is partly
allowed by fixing the contributory negligence on the part of the first
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C.M.A.No.2231 of 2016
respondent/claimant at 20% and on the part of the driver of the insured car
at 80%. The Appellant Insurance company is directed to deposit the 80% of
the entire award amount, after deducting the amount already deposited if
any, together with interest from the date of claim till the date of deposit and
cost as assessed by the Tribunal to the credit of MCOP.No.58 of 2015
within a period of four weeks from the date of receipt of a copy of this
judgment. On such deposit being made, the Tribunal shall transfer the
amount lying to the credit of MCOP.No.58 of 2015 to the bank account of
the first respondent/claimant through RTGS within a period of one week
thereafter. No costs. Consequently, connected miscellaneous petition is
closed.
11.08.2021
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Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
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C.M.A.No.2231 of 2016
ABDUL QUDDHOSE, J.
nl
To
1. The Subordinate Judge at Hosur
2.The Record Section,
High Court of Madras
C.M.A.No.2231 of 2016
11.08.2021
https://www.mhc.tn.gov.in/judis/
