Madras High Court
M/S.Bajaj Allianz General ... vs Shri Ram Kumar on 19 August, 2021
C.M.A.Nos.1736 and 1739 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :19.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.Nos.1736 and 1739 of 2021
and
C.M.P.Nos.9207, 9210 and 9212 of 2021
M/s.Bajaj Allianz General Insurance Company Limited,
SLS Towers, 1st Floor, Cherry Road,
Hasthampatty, Salem - 7.
... Appellant/2nd Respondent in both CMAs
Vs
Shri Ram Kumar
.... 1st Respondent in CMA.No.1736 of 2021
R.Muniraj
.... 1st Respondent in CMA.No.1739 of 2021
2.P.R.S.Saravanaraj
(2nd Respondent/1st respondent remained exparte in
lower Court, hence notice may be dispensed with)
... 2nd Respondent in both CMAs
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1736 and 1739 of 2021
COMMON PRAYER : Civil Miscellaneous Appeals filed under Section 173 of
Motor Vehicles Act, 1988, praying to set aside the decree and judgment dated
26.09.2019 passed in M.C.O.P.Nos.1926 and 1927 of 2016, respectively, on the file
of the Motor Accident Claims Tribunal cum Special Subordinate Judge No.II,
Salem.
For appellant :Mr.K.Poomalai
in both CMAs
For Respondents :Mr.Ma.Pa.Thangavel
in both CMAs
COMMON JUDGMENT
(Judgment of the court was delivered by T.V.THAMILSELVI.J.,)
The matters were heard through "Video Conference".
2. The Insurance Company filed the above Civil Miscellaneous Appeals
challenging the award passed by the Tribunal in M.C.O.P.Nos.1926 and 1927 of
2016, which were filed by the claimants for the injuries sustained by them in the
accident happened on 26.07.2016.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1736 and 1739 of 2021
3. On hearing both sides, the Tribunal awarded compensation and
fastened the liability upon the Insurance Company to whom the offended lorry was
insured. Aggrieved by that the Insurance Company has preferred these appeals.
4. The learned counsel for the appellant submits that the owner of the
two wheeler, in which the claimants travelled and its insurer were not impleaded as
necessary parties, thereby, the award passed by the Tribunal is liable to be set aside
for non-joinder of necessary party. They also raised another objection with regard
to the income fixed by the Tribunal that without appreciating the evidence that the
Tribunal had erroneously fixed Rs.32,000/- as income of the claimant in
CMA.No.1929 of 2016 and he prayed to set aside the award.
5. On perusal of the records, it is revealed that before the trial Court
both the claimants were examined as PWs.1 and 2 and Exs.P1 to P18 were marked .
No oral evidence was adduced on the side of the respondents before the Tribunal.
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C.M.A.Nos.1736 and 1739 of 2021
6. At the time of the arguments, the learned counsel for the appellant
submitted that the accident happened due to the negligence of the claimants in
riding the two wheeler, hence, the owner and its Insurer are necessary parties.
Without considering this aspect, the Tribunal passed the award and therefore,
prayed to set aside the same. But as rightly pointed out by the claimants' counsel,
the appellant has not proved the alleged negligence on the part of the claimants by
producing sufficient material evidence on their side before the Tribunal.
7. It is true that no oral evidence has been adduced on the side of the
Insurance Company. For the first time, such defence is raised in these appeals
which is not permissible under law since the defence of the Insurance Company
should have been pleaded and proved independently, on the earlier occasion,
before the Tribunal itself. Therefore, the objection raised by the appellant for the
first time in the appeal is an unsustainable one. The income of the claimant in
MCOP.No.1927 of 2016 (CMA.No.1739 of 2021) is objected by the Insurance
Company stating that the Tribunal without properly appreciating the evidence,
erroneously fixed Rs.32,000/- as the monthly income.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1736 and 1739 of 2021
8. The Tribunal relied on the document namely Ex.P27, which is the
wage slip of the said claimant, but except Ex.27, no supporting document was
produced to prove the income of the said claimant.
9. Admittedly, to prove the employment of the said claimant, on the
side of the claimant, PW.3, who is the Manager of the Company, where the
claimants were employed, has been examined. Based upon the same, the Tribunal
fixed Rs.32,000/- as the appropriate salary. At the time of the accident, the said
claimant was employed and was aged about 26 years. In the accident, the claimant
sustained 50% of disability as per Ex.C.2. Except the wage slip, no other
supporting documents were produced on the side of the said claimant. Therefore,
the income fixed by the Tribunal at Rs.32,000/- is reduced to Rs.30,000/-. 40% of
future prospects is to be taken into consideration, which was rightly fixed by the
Tribunal. Hence, the monthly income of the claimant/Muniraj is fixed as
Rs.30,000/- . With regard to other aspects, the award passed by the Tribunal is
confirmed.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1736 and 1739 of 2021
10. The income is modified from Rs.32,000/- to Rs.30,000/- for the
claimant Muniraj and accordingly, the annual income of the claimant would be
Rs.3,60,000/- (30,000 x 12) and thereby Loss of future earning is hereby arrived at
Rs.5,04,000/- (Rs.3,60,000/- x 40/100). In this regard, adopting multiplier 17, Loss
of earning capacity comes to Rs.85,68,000/- (Rs.5,04,000 x 17). Therefore,
functional disability of the claimant comes to Rs.51,40,800/- (Rs.85,68,000 x
60/100). In effect, the total compensation is hereby arrived at Rs.69,33,859/- which
is tabulated hereunder:
Head Amount (Rs.)
Functional disability (Rs.8731200 x Rs.51,40,800/-
60%)
Loss of pain and suffering Rs.3,00,000/-
Loss of amenities Rs.3,00,000/-
Medical Expenses Rs.4,82,059/-
Loss of income during treatment period Rs.1,80,000/-
(Rs.30,000/- x 6)
Fixation of artificial leg Rs.4,00,000/-
Extra Nourishment Rs.1,00,000/-
Attender charges Rs.30,000/-
Damage of clothes Rs.1,000/-
Total Rs.69,33,859/-
11. Accordingly, the Civil Miscellaneous Appeal No.1739 of 2021 is
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C.M.A.Nos.1736 and 1739 of 2021
partly allowed. The Insurance company is directed to deposit the amount of
Rs.69,33,859/- awarded by this Court with proportionate interest to the credit of
M.C.O.P.No.1927 of 2016 on the file of the Special Subordinate Judge, Salem,
within a period of six weeks from the date of receipt of a copy of this order, after
deducting the amount already deposited, if any. On such deposit being made, the
first respondent is permitted to withdraw the amount on due application.
12.In respect of compensation awarded to the claimant/first respondent
in C.M.A.No.1736 of 2021, this Court finds that the Tribunal has passed a
reasonable award considering the disability suffered by the claimant. Hence, the
award passed by the Tribunal calls for no interference and the same is hereby
confirmed. Accordingly, the Civil Miscellaneous Appeal No.1736 of 2021 is
dismissed. The Insurance company is directed to deposit the award amount passed
by the Tribunal with proportionate interest to the credit of M.C.O.P.No.1926 of
2016 on the file of the Special Subordinate Judge, Salem, within a period of six
weeks from the date of receipt of a copy of this order, after deducting the amount
already deposited, if any and recover the same from the owner of the vehicle. On
such deposit being made, the first respondent is permitted to withdraw the amount
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1736 and 1739 of 2021
on due application. No costs. Consequently, connected miscellaneous petitions are
closed.
[N.K.K.,J.] [T.V.T.S.,J.]
19.08.2021
ub
Index: Yes/No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1736 and 1739 of 2021
To
The Special Subordinate Judge No.II,
Salem.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1736 and 1739 of 2021
N.KIRUBAKARAN, J.
and
T.V.THAMILSELVI , J.
ub
C.M.A.Nos.1736 and 1739 of 2021
19.08.2021
https://www.mhc.tn.gov.in/judis/
