Madras High Court
M/S.National Insurance Co. Ltd vs S.Sivakumar on 6 December, 2021
C.M.A.No.1648 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1648 of 2014
and M.P.No.1 of 2014
M/s.National Insurance Co. Ltd.
Having its issuing Office at
New No.43, Venkatakrishna Road
R.S.Puram, West
Coimbatore – 641 002.
Having its Regional Office at
Coimbatore Divisional Office – III
94/34, Second floor
Dr.Nanjappa Road
United Shopping Complex
Coimbatore – 641 018. .. Appellant
Vs.
1.S.Sivakumar
2.C.Subramani
3.S.Chandrasekaran .. Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, against the judgment and decree dated 28.01.2014
1/14
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C.M.A.No.1648 of 2014
made in M.C.O.P.No.190 of 2013 on the file of the Motor Accident
Claims Tribunal, Special Sub Court, Coimbatore.
For appellant : Mr.J.Chandran
For R1 : Mr.Lokesh
for Mr.MA.P.Thangavel
For R2 and R3 : No appearance
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the judgment and decree dated
28.01.2014 made in M.C.O.P.No.190 of 2013 on the file of the Motor
Accident Claims Tribunal, Special Sub Court, Coimbatore.
2.The appellant/Insurance Company is the 3rd respondent in
M.C.O.P.No.190 of 2013 on the file of the Motor Accident Claims
Tribunal, Special Sub Court, Coimbatore. The 1st respondent filed the said
claim petition claiming a sum of Rs.7,00,000/- as compensation for the
injuries sustained by him in the accident that took place on 04.11.2012.
3.According to the 1st respondent, on the date of accident i.e., on
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C.M.A.No.1648 of 2014
04.11.2012, at about 3.15 p.m., while he was riding the motorcycle
bearing Registration No.TN-37-BC-5475 from East to West direction in
front of Wetland (Nursery Farm), Thondamuthur Road, Poosaripalayam
in Coimbatore, the 2nd respondent, the rider of Honda Activa motorcycle
bearing Registration No.TN-37-AS-0965 belonging to the 3rd respondent,
rode the same on the extreme right side of the said road in a rash and
negligent manner, hit against the 1st respondent, who was riding his
motorcycle in the opposite direction and caused the accident. Due to the
said impact, the 1st respondent was thrown away on the road with his
motorcycle and sustained multiple injuries all over the body. Therefore,
the 1st respondent has filed the above claim petition claiming
compensation against the rider, owner and insurer of the Honda Activa
motorcycle, the respondents 2, 3 and appellant/Insurance Company
respectively.
4.The respondents 2 and 3, rider and owner of the Honda Activa
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C.M.A.No.1648 of 2014
motorcycle respectively, filed counter statement stating that the 1 st
respondent failed to add the owner and insurer of the motorcycle driven
by him as parties to the claim petition. Hence, the claim petition is hit by
non-joinder of necessary parties. While the 2nd respondent was riding the
motorcycle from West to East direction in a moderate speed on the left
side of the road, the 1st respondent alone rode his motorcycle from East to
West direction in a rash and negligent manner, came to the wrong side of
the road and hit the two wheeler driven by the 2nd respondent. The 1st
respondent has admitted his act. F.I.R. was belatedly lodged on
07.11.2012 and hence, the 1st respondent alone is responsible for the
accident. The Insurance Policy was in force at the time of accident and
therefore, the appellant/Insurance Company is liable to pay compensation
to the 1st respondent. The respondents 2 and 3 have also denied the age,
avocation, income and nature of injuries sustained by the 1st respondent.
In any event, the compensation claimed by the 1st respondent is excessive
and prayed for dismissal of the claim petition.
5.The appellant/Insurance Company, insurer of the Honda Activa
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C.M.A.No.1648 of 2014
motorcycle filed counter statement denying the averments made by the 1 st
respondent and stated that the 2nd respondent did not possess valid and
effecting driving license at the time of accident and he was under the
influence of alcohol, which is in violation of terms and conditions of the
policy. The 2nd respondent is not responsible for the accident. The 1 st
respondent alone rode the motorcycle in a rash and negligent manner and
invited the accident. At the time of accident, the 1st respondent was under
the influence of alcohol. Therefore, the appellant is not liable to pay any
compensation to the 1st respondent. The appellant/Insurance Company
has also denied the age, avocation, income and nature of injuries
sustained by the 1st respondent. In any event, the compensation 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, Dr.S.Krishnaraj, was examined as P.W.2 and 14 documents were
marked as Exs.P1 to P14. X-rays were marked as M.O.1 and M.O.2. The
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C.M.A.No.1648 of 2014
appellant/Insurance Company examined the 2nd respondent, rider of the
Honda Activa motorcycle as R.W.1, one K.S.Kannan, Administrative
Officer of the Insurance Company as R.W.2, Dr.Rahuram Ayya as R.W.3
and marked four documents as Exs.R1 to R4.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent riding
by the 2nd respondent, rider of the Honda Activa motorcycle belonging to
the 3rd respondent and directed the appellant/Insurance Company being
insurer of the said motorcycle to pay a sum of Rs.5,44,800/- as
compensation to the 1st respondent.
8.Against the said award dated 28.01.2014 made in
M.C.O.P.No.190 of 2013, the appellant/Insurance Company has come out
with the present appeal.
9.The learned counsel appearing for the appellant contended that
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C.M.A.No.1648 of 2014
the Tribunal failed to consider the evidence of R.W.3/Doctor and
Ex.R3/Accident Register and Ex.R4/medical treatment case sheet,
through which, the appellant proved that 2nd respondent, the rider of the
vehicle insured with appellant, was under the influence of alcohol at the
time of accident. The Tribunal ought to have exonerated the appellant
from its liability and held that 3rd respondent, owner of the vehicle is
liable to pay compensation. The 1st respondent has not produced any
continuous medical treatment records. The Tribunal erroneously accepted
the evidence of P.W.3/Doctor, adopted multiplier method and also
percentage method and granted compensation in addition to the amount
granted for loss of income to the 1 st respondent. The total compensation
granted by the Tribunal is excessive and prayed for setting aside the
award of the Tribunal.
10.The learned counsel appearing for the 1st respondent contended
that on the date of accident, while the 1st respondent was riding his
motorcycle bearing Registration No.TN-37-BC-5475, the 2nd respondent
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C.M.A.No.1648 of 2014
rode the Honda Activa motorcycle bearing Registration No.TN-37-AS-
0965 in a rash and negligent manner and dashed against the motorcycle,
in which 1st respondent was riding. F.I.R. was registered against 2nd
respondent. The 2nd respondent pleaded guilty and admitted his
negligence before the criminal Court. R.W.3/Doctor during his cross-
examination admitted that no blood test was conducted for the 2nd
respondent to prove the alcohol content in the blood and that the accident
occurred due to consumption of alcohol. The Tribunal considering entire
materials and evidence of R.W.3, held that accident occurred only due to
negligence of 2nd respondent, contention of appellant that 2nd respondent
was under the influence of alcohol was not proved and directed the
appellant to pay the compensation. There is no error in the said award of
the Tribunal. In the accident, the 1st respondent suffered multiple injuries,
he lost entire vision in his right eye and fracture in the right shoulder. To
prove the nature of injuries and disability, the 1st respondent examined the
Doctor as P.W.2 and marked disability certificate as Ex.P14. The 1 st
respondent was working as a Sales Representative at the time of accident
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C.M.A.No.1648 of 2014
and was earning a sum of Rs.7,000/- per month. The Tribunal
considering the nature of disability and nature of work of the 1st
respondent, granted compensation towards future loss of earning capacity
by adopting multiplier method for 30% disability for loss of vision in the
right eye and granted compensation for 5% partial permanent disability
by adopting percentage method. The total compensation granted by the
Tribunal is not excessive and prayed for dismissal of the appeal.
11.Though notice has been served on the respondents 2 and 3 and
their names are printed in the cause list, there is no representation for
them either in person or through counsel.
12.Heard the learned counsel appearing for the appellant/Insurance
Company as well as the learned counsel appearing for the 1 st respondent
and perused the entire materials on record.
13.From the materials on record, it is seen that it is the case of the
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C.M.A.No.1648 of 2014
1st respondent that 2nd respondent rode his two wheeler bearing
Registration No.TN-37-AS-0965 in a rash and negligent manner and
dashed against the motorcycle bearing Registration No.TN-37-BC-5475,
in which 1st respondent was riding and caused the accident. In the
accident, 1st respondent sustained multiple injuries and claimed
compensation for the injuries. To prove the said contention, the 1 st
respondent examined himself as P.W.1 and Doctor, who treated him, as
P.W.2, marked documents and proved his case. It is the case of the
appellant that 2nd respondent was under the influence of alcohol at the
time of accident and hence, the appellant is not liable to pay any
compensation to the 1st respondent. Only the 3rd respondent, owner of the
offending vehicle is liable to pay compensation. To prove the case, the
appellant examined R.W.3/Doctor, who treated the 2nd respondent, rider
of the offending vehicle and marked documents. R.W.3 in his evidence
deposed that 2nd respondent has consumed alcohol at the time of accident
as per Exs.R3/Accident Register and R4/case sheet. But in cross-
examination, he deposed that no blood test was conducted for 2nd
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C.M.A.No.1648 of 2014
respondent to ascertain percentage of alcohol content in blood. The
Tribunal in the absence of blood test, did not accept the case of the
appellant, holding that mere smelling of alcohol, cannot be decided that
2nd respondent was under the influence of alcohol and due to the same, he
lost control and caused the accident. The Tribunal considering the above
facts, held that the 2nd respondent was responsible for the accident, 3 rd
respondent, owner of the vehicle and appellant as insurer is liable to pay
compensation to the 1st respondent. There is no error in the said finding of
the Tribunal fixing negligence on the 2nd respondent and liability on the
appellant/Insurance Company.
14.As far as quantum of compensation is concerned, the Tribunal
considering the evidence of P.W.2/Doctor that 1st respondent lost total
vision in the right eye, age and avocation of the 1st respondent, adopted
multiplier method and granted compensation for 30% disability by fixing
monthly income at Rs.6,000/-. It is the case of the 1 st respondent that he
was working as Sales Representative and was earning a sum of
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C.M.A.No.1648 of 2014
Rs.7,000/- per month. The accident has occurred in the year 2012. The
monthly income fixed by the Tribunal is not excessive. In addition to the
above, the Tribunal considering the disability certificate Ex.P14, granted
a sum of Rs.15,000/- towards partial permanent disability at the rate of
Rs.3,000/- per percentage for 5% disability and Rs.18,000/- towards loss
of income. The 1st respondent has taken treatment as in-patient in the
hospital and underwent surgeries. The Tribunal has not granted any
amount towards attendant charges. The total compensation awarded by
the Tribunal are not excessive warranting interference by this Court.
15.In the result, this Civil Miscellaneous Appeal is dismissed and
the sum of Rs.5,44,800/- 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 award
amount 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 1 st respondent is permitted to
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C.M.A.No.1648 of 2014
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.
06.12.2021
Index : Yes/No
Internet: Yes/No
kj
To
1.The Special Subordinate Judge
Motor Accident Claims Tribunal
Coimbatore.
2.The Section Officer
VR Section
High Court
Madras.
V.M.VELUMANI,J.
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C.M.A.No.1648 of 2014
Kj
C.M.A.No.1648 of 2014
and M.P.No.1 of 2014
06.12.2021
https://www.mhc.tn.gov.in/judis
