Madras High Court
M/S. Bajaj Allianz General ... vs Ravi on 20 December, 2021
C.M.A.No.3280 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3280 of 2014
and
M.P.No.1 of 2014
M/s. Bajaj Allianz General Insurance Company Limited,
G.E.Plaza, Airport Road,
Airwada,
Pune – 411 006. .. Appellant
Vs.
1.Ravi
2.Murugan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
11.04.2014 made in M.C.O.P.No.199 of 2012 on the file of the Motor
Accidents Claims Tribunal, Chief Judicial Magistrate's Court, Dharmapuri.
For Appellant : Mr.Michael Visuvasam
For R1 : No appearance
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Miscellaneous Appeal has been filed against the award dated
11.04.2014 made in M.C.O.P.No.199 of 2012 on the file of the Motor
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C.M.A.No.3280 of 2014
Accidents Claims Tribunal, Chief Judicial Magistrate's Court, Dharmapuri.
2.The appellant is the 2nd respondent in M.C.O.P.No.199 of 2012 on
the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate's
Court, Dharmapuri. The 1st respondent filed the said claim petition claiming a
sum of Rs.6,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 02.12.2010.
3.According to 1st respondent, on 02.12.2010 at about 02.00 P.M.,
while he was travelling in the Bolero pickup van bearing Registration No.TN
29 AF 8906 on the Kadathur – Bommidi road opposite to Kalaimagal School,
Thindalanur, the driver of the van drove the same in a rash and negligent
manner and to avoid the bus coming in the opposite direction, dashed against
the tamarind tree and caused the accident. In the accident, the 1st respondent
and others sustained injuries. After the accident, the 1st respondent was taken
to Government Dharmapuri Medical College Hospital, Dharmapuri and has
taken treatment as inpatient from 02.12.2010 to 05.12.2010. Thereafter he has
taken treatment as inpatient at DNV Polyclinic from 13.12.2010 to
17.12.2010 and underwent surgery on 14.12.2010. Therefore, the 1st
respondent filed the said claim petition claiming a sum of Rs.6,00,000/- as
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C.M.A.No.3280 of 2014
compensation for the injuries sustained by him against the 2nd respondent and
appellant, being the owner and insurer of the Bolero pickup van respectively.
4.The 2nd respondent, being the owner of the Bolero pickup van
remained exparte before the Tribunal.
5.The appellant-Insurance Company, filed counter statement and
denied all the averments made by the 1st respondent. The appellant denied the
manner of accident as alleged by the 1st respondent. According to appellant,
the driver of the Bolero pickup van drove the same slowly and carefully and
at that time, a bus was coming in the opposite direction in a rash, negligent
and zigzag manner on the wrong side. In order to avoid the accident, the
driver of the van swerved his vehicle to the extreme left side in mud portion
and thus the accident occurred. Hence, the driver of the van is not responsible
for the accident. The 2nd respondent's van was not insured with the appellant
on the date of accident. The driver of the van was not possessing valid
driving license at the time of accident. The vehicle was a goods vehicle and
the 1st respondent and others traveled in the van only as unauthorized
passengers. They did not travel as owner of the goods. The 1st respondent has
to prove that the owner of the van has paid premium to cover the risk of
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C.M.A.No.3280 of 2014
passengers travelling in the van. The vehicle was used in violation of
statutory provisions and hence, the appellant is not liable to pay any
compensation to the 1st respondent. The appellant denied the age, injuries,
period of treatment taken and medical expenses incurred by the 1 st
respondent. In any event, the quantum of compensation claimed by the 1st
respondent is highly excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1,
one Ramamoorthy was examined as P.W.2, Dr.Krishnakumar was examined
as P.W.3 and one Pachiyappa Achari was examined as P.W.4 and 18
documents were marked as Exs.P1 to P18. The appellant examined two
witnesses as R.W.1 & R.W.2 and marked four documents as Exs.R1 to R4.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred only due to rash and negligent
driving by the driver of the van belonging to 2nd respondent and directed the
appellant-Insurance Company to pay a sum of Rs.4,81,000/- as compensation
to the 1st respondent.
8.To set aside the said award dated 11.04.2014 made in
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C.M.A.No.3280 of 2014
M.C.O.P.No.199 of 2012, the appellant-Insurance Company has come out
with the present appeal.
9.The learned counsel appearing for the appellant contended that the 1st
respondent failed to prove that he traveled in the offending vehicle along with
wooden logs by producing documents like consignment note, trip sheet,
goods vehicle record, delivery note, weigh bridge receipt, etc,. The 1st
respondent failed to prove that he traveled in the goods vehicle as owner of
fire wood accompanying such goods in the goods vehicle at the time of
accident. One Senthil Kumar, who lodged the complaint based on which
F.I.R. was registered has stated that he was owner of fire woods. In view of
the same, the 1st respondent is an unauthorized passenger in the goods
vehicle. Even if the 1st respondent has traveled along with the goods as an
agent of owner, his risk is not covered under the provisions of Section 147 of
the Motor Vehicles Act. The seating capacity of the van is only 2. At the time
of accident, along with driver three persons have traveled. The 1st respondent
has not proved that he is an employee of the said Senthil Kumar. The 1st
respondent is only an unauthorized passenger and hence, the appellant is not
liable to pay any compensation. The learned counsel appearing for the
appellant further submitted that the 2nd respondent, who is the owner-cum-
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C.M.A.No.3280 of 2014
driver of the van did not possess driving license at the time of accident. The
appellant has proved the same by examining Official from R.T.O. and
marking Exs.R3 & R4, letter issued to the 2nd respondent to produce the
driving license. Even in Ex.P4 / Motor Vehicle Inspector's Report, it has been
mentioned that driving license 'not produced'. The Tribunal ought to have
fastened the liability on the part of the 2nd respondent and exonerated the
appellant-Insurance Company from its liability for violation of policy and
permit conditions. He further contended that P.W.3/Doctor is not the Doctor
who treated the 1st respondent. Assessment of P.W.3/Doctor is contrary to the
guidelines issued by the Government of India and assessment is not based on
any scientific method. P.W.3/Doctor has not attached any worksheet with the
disability certificate. The 1st respondent suffered injury only in a particular
limb and disability would not be more than 30%. The Tribunal erred in
considering the disability certificate issued by P.W.3/Doctor for whole body
and awarded compensation excessively by adopting multiplier method and
prayed for setting aside the award of the Tribunal.
10.Though the 1st respondent entered appearance through counsel,
today when the matter is taken up for final hearing, there is no representation
for him. The 2nd respondent remained exparte before the Tribunal. Hence,
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C.M.A.No.3280 of 2014
notice to 2nd respondent is dispensed with.
11.Heard the learned counsel appearing for the appellant and perused
the entire materials on record.
12.From the materials on record, it is seen that according to 1 st
respondent, he traveled along with fire wood in the offending vehicle. The
accident occurred due to rash and negligent driving by the 2 nd respondent,
owner-cum-driver of the offending vehicle. The 1st respondent proved his
contention by examining himself as P.W.1 and marking F.I.R., which was
registered against the 2nd respondent as Ex.P1. The appellant has not let in
any contra evidence to disprove the case of 1st respondent. The Tribunal
considering the oral and documentary evidence let in by the 1st respondent
has rightly held that accident has occurred only due to rash and negligent
driving by 2nd respondent.
13.It is the contention of the appellant that the 2nd respondent did not
possess driving license at the time of accident. To prove their contention, the
appellant examined an official from R.T.O as R.W.1 and R.W.2. R.W.2 has
deposed that there is no record to show that driving license was issued to 2 nd
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C.M.A.No.3280 of 2014
respondent. The appellant also produced and marked the notice issued to the
2nd respondent to produce the driving license. The 2nd respondent failed to
produce the driving license. In Ex.P4/Motor Vehicle Inspector's report also it
has been stated that 'driving license not produced'. The appellant by
examining R.W.1/official from R.T.O and by producing documents, proved
that 2nd respondent did not possess driving license at the time of accident.
Even if the 2nd respondent did not possess driving license at the time of
accident, the Insurance Company cannot be exonerated from its liability. As
per the judgment of the Hon'ble Apex Court reported in (2004) 3 SCC 297
[National Insurance Co. Ltd. v. Swaran Singh and Ors.], the appellant is
liable to pay the compensation at the first instance and recover the same from
the 2nd respondent-owner of the offending vehicle.
14.It is the further contention of the appellant that the 1 st respondent
was an unauthorised passenger in the offending vehicle. On the other hand, it
is the case of the 1st respondent that he traveled along with fire woods and
proved the same by examining himself as P.W.1 and marking F.I.R., in which
it has been stated that 1st respondent and others traveled along with fire
woods. The appellant has not let in any contra evidence to disprove the
evidence of 1st respondent and contents of F.I.R. to show that vehicle was
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C.M.A.No.3280 of 2014
empty at the time of accident. The contention of the appellant is that the 1st
respondent is only an unauthorised passenger as one Senthil Kumar is the
owner of the goods carried in the offending vehicle and 1st respondent failed
to prove that he is an employee of the said Senthil Kumar. It is the specific
case of the 1st respondent that he traveled along with fire woods and he prove
the same by acceptable oral and documentary evidence. The case of the 1st
respondent is not disproved by the appellant and the contention of the
appellant that 1st respondent traveled as unauthorised passenger is not
acceptable and appellant is liable to pay the compensation.
15.As far as quantum of compensation is concerned, it is the case of the
1st respondent that he suffered abrasion over anterior aspect of neck 2 X 1 cm,
swelling tenderness, both bone fracture of right leg and multiple injuries all
over the body and has taken treatment in the Government Dharmapuri
Medical College Hospital, Dharmapuri from 02.12.2010 to 05.12.2010 and at
DNV Polyclinic from 13.12.2010 to 17.12.2010. The 1st respondent examined
P.W.3/Doctor and produced Ex.P2/Accident Register, Ex.P3 & P11/discharge
summaries, Exs.P7 & P9/series of medical bills, Ex.P8/photographs, Exs.P12,
P13 & P16/X-Ray, Ex.P14/case sheet and Ex.P15/disability certificate.
P.W.3/Doctor deposed about the nature of injuries and disability suffered by
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1st respondent. In the cross examination, he admitted that he has not issued
the disability certificate as per the guidelines issued by Government of India.
He also submitted that he has not seen the medical records of 1 st respondent
with regard to treatment taken by the 1st respondent. He deposed that after
2 ½ years of accident, he examined the 1st respondent and verified the case
sheet issued by the Government Hospital, Dharmapuri. P.W.3/Doctor has not
deposed that 1st respondent suffered functional disability and his earning
capacity will be reduced. In the absence of any evidence, the Tribunal
erroneously adopted multiplier method and granted compensation
excessively. P.W.3/Doctor has not deposed that the 1st respondent cannot do
any work due to the injuries sustained by him in the accident. In view of the
same, the Tribunal is not correct in adopting multiplier method for awarding
compensation. The 1st respondent is entitled to compensation only by
adopting percentage method. Therefore, a sum of Rs.3,51,000/- awarded by
the Tribunal towards loss of earning capacity by adopting multiplier method
is liable to be set aside and it is hereby set aside.
16.P.W.3/Doctor certified that the 1st respondent suffered 50%
disability and issued Ex.P15/disability certificate to that effect. The accident
is of the year 2010. The 1st respondent is entitled to a sum of Rs.3,000/- per
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C.M.A.No.3280 of 2014
percentage of disability. Thus, the 1st respondent is entitled to a sum of
Rs.1,50,000/- (Rs.3,000/- X 50% of disability) towards disability. The 1st
respondent claimed that he was a Wood Merchant and was earning a sum of
Rs.7,500/- per month. He has failed to prove the same. In the absence of any
material evidence, the Tribunal fixed a sum of Rs.4,500/- per month as
notional income of the 1st respondent and granted a sum of Rs.13,500/-
towards loss of income for three months. The monthly income fixed by the
Tribunal is meagre. Considering the year of accident and nature of work done
by the 1st respondent, a sum of Rs.7,500/- as claimed by the 1st respondent is
fixed as his monthly income. Due to the injuries sustained by him in the
accident, the 1st respondent would not have worked atleast for a period of six
months. Therefore, the compensation awarded by the Tribunal towards loss of
income is modified to Rs.45,000/- (Rs.7,500/- X 6 months). The 1st
respondent has taken treatment in the Government Dharmapuri Medical
College Hospital, Dharmapuri from 02.12.2010 to 05.12.2010 and at DNV
Polyclinic from 13.12.2010 to 17.12.2010. The Tribunal has not granted any
amount towards attendant charges. Considering the period of treatment taken
by the 1st respondent, he is entitled to a sum of Rs.10,000/- towards attendant
charges. The amount awarded by the Tribunal towards extra nourishment is
meagre and hence, the same is enhanced to Rs.10,000/-. The Tribunal has not
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granted any amount towards loss of amenities. Considering the nature of
injuries and disability suffered by the 1st respondent, he is entitled to a sum of
Rs.10,000/- towards loss of amenities. The amounts awarded by the Tribunal
under other heads are just and reasonable and hence, the same are hereby
confirmed. Thus, the compensation awarded by the Tribunal is modified as
follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Loss of earning 3,51,000/- - Set aside
capacity
2. Disability - 1,50,000/- Granted
3. Pain and sufferings 20,000/- 20,000/- Confirmed
4. Medical expenses 85,000/- 85,000/- Confirmed
5. Transportation 5,000/- 5,000/- Confirmed
6. Loss of income 13,500/- 45,000/- Enhanced
7. Extra nourishment 5,000/- 10,000/- Enhanced
8. Damages to clothes 1,500/- 1,500/- Confirmed
9. Attendant charges - 10,000/- Granted
10. Loss of amenities - 10,000/- Granted
Total Rs.4,81,000/- Rs.3,36,500/- Reduced by
Rs.1,44,500/-
17.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.4,81,000/- is hereby reduced
to Rs.3,36,500/- together with interest at the rate of 7.5% per annum from the
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C.M.A.No.3280 of 2014
date of petition till the date of deposit. The appellant-Insurance Company is
directed to deposit the 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.199 of 2012 on the file of the Motor Accidents Claims
Tribunal, Chief Judicial Magistrate's Court, Dharmapuri, at the first instance
and recover the same from the 2nd respondent. On such deposit, the 1st
respondent 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 applications before the Tribunal. The
appellant-Insurance Company is permitted to withdraw the excess amount
lying in the credit of M.C.O.P.No.199 of 2012, if the entire award amount has
already been deposited by them. Consequently the connected Miscellaneous
Petition is closed. No costs.
20.12.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Chief Judicial Magistrate,
Motor Accidents Claims Tribunal,
Dharmapuri.
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C.M.A.No.3280 of 2014
V.M.VELUMANI, J.
krk
2.The Section Officer,
VR Section,
High Court, Madras.
C.M.A.No.3280 of 2014
20.12.2021
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