Madras High Court
The Divisional Manager vs Kamalakannan ... 1St on 9 December, 2021
C.M.A.No.1670 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
Civil Miscellaneous Appeal No.1670 of 2018
and
Civil Miscellaneous Petition No.13151 of 2018
[Through Video Conferencing]
The Divisional Manager,
M/s.National Insurance Company Limited
Nehru Street,
Pondicherry. ... Appellant / 2nd respondent
Vs.
1.Kamalakannan ... 1st Respondent / claimant
2.Bharat ... 2nd Respondent / 1st respondent
This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Award and Decree dated 27.02.2018
made in M.C.O.P.No.717 of 2011, on the file of the Motor Accidents Claims
Tribunal, Additional Subordinate Judge, Villupuram @ Tindivanam.
For Appellant : Mr.J.Michael Visuvasam
For R1 : M/s.K.M.Vijayan Associates
For R2 : No appearance
1/11
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C.M.A.No.1670 of 2018
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the
quantum of compensation granted by the Tribunal in the award dated
27.02.2018 made in M.C.O.P.No.717 of 2011 on the file of the Motor
Accidents Claims Tribunal, Additional Subordinate Judge, Villupuram @
Tindivanam.
2.The appellant/Insurance Company is the second respondent in
M.C.O.P.No.717 of 2011 on the file of the Motor Accidents Claims Tribunal,
Additional Subordinate Judge, Villupuram @ Tindivanam. The first
respondent/claimant filed the said claim petition, claiming a sum of
Rs.8,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 12.08.2011.
3.According to 1st respondent/claimant, on 12.08.2011 at about 02.00
p.m., while he was trying to cross Marakkanam to Tindivanam road, the two
wheeler bearing Registration No.PY 01 BK 4667 was driven by its driver
from Marakkanam towards Tindivanam in a rash and negligent manner and
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C.M.A.No.1670 of 2018
hit the first respondent herein. In the accident, the first respondent sustained
grievous injuries in his head and also all over the body. Immediately, he was
taken to the Government General Hospital, Tindivanam and thereafter, he
was referred to Jipmer Hospital, Puducherry for further treatment. Therefore,
the first respondent filed the said claim petition claiming a sum of
Rs.8,00,000/- as compensation against the owner and insurer of the two
wheeler.
4.The second respondent, being the rider cum owner of the two
wheeler remained ex-parte before the Tribunal.
5.The appellant/Insurance Company, filed counter statement and
denied all the averments made by the first respondent/claimant in the claim
petition. The appellant/Insurance Company denied the manner of accident as
alleged by the first respondent/claimant. It is stated that the two wheeler
involved in the accident was not insured with the appellant/Insurance
Company on the date of accident. The second respondent who is the rider
cum owner of the two wheeler was not possessing valid driving license at the
time of accident. The vehicle was used in violation of statutory provisions
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C.M.A.No.1670 of 2018
and hence, the appellant/Insurance Company is not liable to pay any
compensation to the first respondent/claimant. The Insurance Company also
denied the age, occupation, injuries suffered and medical expenses incurred
by the first respondent/claimant. It is also stated that the quantum of
compensation claimed by the first respondent/claimant is highly excessive
and hence, the learned counsel prayed for dismissal of the claim petition.
6.Before the Tribunal, the first respondent/claimant examined himself
as P.W.1 and 20 documents were marked as Exs.P1 to P20. On the side of the
appellant/Insurance Company one witness was examined as RW1 and
marked four documents as Exs.R1 to R4. In addition to that, Ex.C1 was
marked as Court document.
7.The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occurred due to rash and negligent driving by
the driver of the two wheeler owned by the second respondent and directed
the appellant/Insurance Company to pay a sum of Rs.1,46,621/- as
compensation to the first respondent/claimant.
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C.M.A.No.1670 of 2018
8.Questioning the quantum of compensation awarded by the Tribunal
in the award dated 27.02.2018 made in M.C.O.P.No.717 of 2011, 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 failed to consider the fact that the second
respondent, who is the owner cum rider of the said motorcycle, was not
having valid driving licence at the time of accident. Further, there is
negligence on the part of the first respondent/claimant as he attempted to
cross the road without noticing the vehicle driven by the second respondent
while crossing Marakanam to Tindivanam main road. The Tribunal without
considering Ex.C1/Medical Board Report granted Rs.60,000/- towards
disability which is highly excessive. The Medical Board, under Ex.C1 has
opined that the disability of the claimant is 20% and therefore, the sum of
Rs.60,000/- awarded is excessive. Further, the Tribunal awarded a sum of
Rs.25,000/- towards Loss of amenities which is also on the higher side and it
is required to be scaled up. In any event, when the rider of the two wheeler
did not possess a valid driving license at the time of the accident, the
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C.M.A.No.1670 of 2018
Insurance Company cannot be mulcted with the liability to pay compensation
to the claimant and hence, the learned counsel prayed for setting aside the
award passed by the Tribunal. The learned counsel would further submit that
since the rider of the two wheeler did not possess valid driving licence at the
time of accident, the Tribunal ought to have directed the appellant/Insurance
Company to pay the compensation at the first instance and recover the same
from the first respondent.
10.The learned counsel for the first respondent/claimant submitted that
the Tribunal had properly appreciated the evidence let in before the Tribunal
and awarded a reasonable amount as compensation. Therefore, the award
passed by the Tribunal need not be interfered with by this Court.
11.Heard the learned learned counsel appearing for the
appellant/Insurance Company as well as the learned counsel appearing for the
first respondent/claimant and perused the entire materials available on record.
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C.M.A.No.1670 of 2018
12. It is the case of the first respondent/claimant that in the accident,
he suffered several lacerated injuries and abrasions all over the body. The
first respondent/claimant was referred to Medical Board and the Medical
Board examined him and certified that he suffered 20% disability under
Ex.C1/Medical Board Report. However, the Tribunal failed to consider the
said fact while awarding compensation. Further, the first respondent/claimant
was not treated as in-patient and O.P. Chits alone were produced. The
Tribunal has also failed to consider the fact that the first respondent suffered
only lacerated injuries and hence 20% of disability taken by the Tribunal is
not correct. The percentage of disability is therefore reduced from 20% to
10%.
13. Since the accident occurred in the year 2011, a sum of Rs.3,000/-
is awarded per percentage of disability. Thus, the compensation awarded by
the Tribunal towards disability is modified to Rs.30,000/- (Rs.3,000/- X 10%
disability) as against Rs.60,000/- awarded by it.
14. The Tribunal erroneously award a sum of Rs.25,000/- towards
loss of amenities to the claimant, which is not in consonance with the nature
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C.M.A.No.1670 of 2018
of injuries suffered by him. Therefore, the sum of Rs.25,000/- is hereby set
aside and no compensation is required to be awarded to the claimant under
the head loss of amenities.
15. Except the above modification under the heads "disability" and
“loss of amenities”, the other amount awarded by the Tribunal under the other
heads are just and reasonable and the same are hereby confirmed. Thus, the
compensation is re-calculated as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability Rs.60,000/- Rs.30,000/- Reduced
2. Pain and Sufferings Rs.30,000/- Rs.30,000/- Confirmed
3. Loss of amenities Rs.25,000 --- Set aside
4. Medical expenses Rs.16,621/- Rs.16,621/- Confirmed
5. Extra nourishment Rs.5,000/- Rs.5,000/- Confirmed
6. Transportation Rs.5,000/- Rs.5,000/- Confirmed
7. Attendant charges Rs.5,000/- Rs.5,000/- Confirmed
Total Rs.1,46,621/- Rs.91,621/- Reduced by
Rs.55,000/-
16. In the result, the Award and Decree dated 27.02.2018 made in
M.C.O.P.No.717 of 2011, on the file of the Motor Accidents Claims Tribunal,
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C.M.A.No.1670 of 2018
Additional Subordinate Judge, Villupuram @ Tindivanam is modified. The
Civil Miscellaneous Appeal filed by the appellant/Insurance Company is
partly allowed. No costs. The compensation awarded by the Tribunal at
Rs.1,46,621/- is hereby reduced to Rs.91,621/- [Rupees Ninety One Thousand
Six Hundred and Twenty One only] together with interest at the rate of 7.5%
per annum from the date of claim petition till the date of deposit. The
appellant/Insurance Company is directed to deposit the modified award
amount now determined by this Court 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, to the credit of M.C.O.P.No.717 of 2011,
on the file of the Motor Accidents Claims Tribunal, Additional Subordinate
Judge, Villupuram @ Tindivanam, at the first instance and recover the same
from the second respondent/rider cum owner of the vehicle.
17. On such deposit, the first respondent/claimant is permitted to
withdraw the award amount now determined by this Court, along with
interest and costs, less the amount if any, already withdrawn by making
necessary application before the Tribunal. The appellant/Insurance Company
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C.M.A.No.1670 of 2018
is permitted to withdraw the excess amount if any deposited by them. In other
aspects, the amount awarded by the Tribunal shall stand confirmed.
Consequently, the connected Miscellaneous Petition is closed.
09.12.2021
ssi
Index : Yes / No
Internet : Yes / No
Speaking Order : Yes / No
To:
1.The Additional Subordinate Judge,
Motor Accidents Claims Tribunal,
Villupuram @ Tindivanam.
2.The Section Officer,
VR Section,
High Court of Madras.
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C.M.A.No.1670 of 2018
S.KANNAMMAL, J.
ssi
C.M.A.No.1670 of 2018
09.12.2021
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