Madras High Court
The Branch Manager vs K.R.Periasamy on 2 February, 2021
C.M.A.No.718 of 2017,
Cro.obj.No.57 of 2019 and C.M.P.No.3999 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.718 of 2017
& C.M.P.No.3999 of 2017
& Cross Objection No.57 of 2019
C.M.A.No.718 of 2017
The Branch Manager,
Third Party ClaimsHub,
The Bajaj Allianz General Insurance
Company Limited, No.1, G.D.S.Complex,
Opposite to New Bus Stand,
Katpadi Road, Vellore. ...Appellant
Vs
1.K.R.Periasamy
2.Santhoshima Hotels (P) Limited,
A.Dhanapal, Managing Director,
No.48, S.C.Road, Bangaluru,
Karnataka ...Respondents
Cros.Obj.No.57 of 2019
K.R.Periasamy ...Appellant
Vs
1.The Branch Manager,
1/8
https://www.mhc.tn.gov.in/judis/
C.M.A.No.718 of 2017,
Cro.obj.No.57 of 2019 and C.M.P.No.3999 of 2017
Third Party ClaimsHub,
The Bajaj Allianz General Insurance
Company Limited,
No.1, G.D.S.Complex,
Opposite to New Bus Stand,
Katpadi Road, Vellore.
2.Santhoshima Hotels (P) Limited,
A.Dhanapal, Managing Director,
No.48, S.C.Road, Bangaluru,
Karnataka. ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act against the award and decree dated 16.11.2016 made in
M.C.O.P.No.126 of 2013 on the file of the Motor Accidents Claims Tribunal
(Special Subordinate Judge), Tirupattur.
Prayer: Cross Objection filed under Order 41 Rule 22 of C.P.C., against the award
and decree dated 16.11.2016 made in M.C.O.P.No.126 of 2013 on the file of the
Motor Accidents Claims Tribunal (Special Subordinate Judge), Tirupattur.
For Appellant
in C.M.A and Respondents
in Cross Objection : Mr.J.Michael visuvasam
For Respondents in C.M.A : No appearance
and appellant in Cro.Obj.
JUDGMENT
https://www.mhc.tn.gov.in/judis/
C.M.A.No.718 of 2017,
Cro.obj.No.57 of 2019 and C.M.P.No.3999 of 2017
The Civil Miscellaneous Appeal is filed by the Insurance Company
being aggrieved by the liability fixed on the Insurance Company as well as the
quantum of compensation.
2. The short point canvassed by the learned counsel for the appellant
is that the vehicle insured under them was not the offending vehicle involved in
the alleged accident. The owner of the vehicle himself has informed to the
Insurance Company that the vehicle was wrongly implicated and also filed
detailed counter in the claim petition stating that on the alleged date of accident,
the vehicle was parked in his house and the owner was out of station on
pilgrimage. However, the Tribunal considering the criminal Court judgment,
which has acquitted the driver based on the benefit of doubt and not on a specific
fact that the alleged vehicle Toyota car was not involved in the accident.
3. The learned counsel for the appellant would submit that the
claimant has not proved that the accident occurred while he was diligently riding
his vehicle and the Toyota car bearing registration No.Ka-43-M-1666 was
suddenly turned right side with high speed and hit the motorcycle.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.718 of 2017,
Cro.obj.No.57 of 2019 and C.M.P.No.3999 of 2017
4. On perusing the evidence, this Court finds that the first information
regarding the accident was lodged by the injured within 10.00 hrs. His statement
was recorded by the police, when the injured was in the hospital for treatment.
Though the owner of the vehicle as well as the driver of the Toyota car denied the
involvement of the car and also the Judicial Magistrate has acquitted the driver,
perusing Ex.R-3 does not positively indicate that the Toyota car was not the
offending vehicle. Therefore, rash and negligent driving of the car driver found
proved. Hence, the liability fixed on the Insurance Company to indemnify the car
owner stands confirmed.
5. However, the quantum of compensation awarded to the claimant
requires modification. The accident caused fracture of tibia, for which, the
claimant had taken treatment for a day and advised a month rest. The claimant has
produced medical bill for Rs.40,577/- and Transportation charges for Rs.9,200/-.
The doctor, who clinically examined the claimant, has assessed the disability as
30%. However, the wound certificate and discharge summary indicate that in the
accident, the claimant has suffered contusion of his right knee, for which, he has
advised to take 30 days bed rest.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.718 of 2017,
Cro.obj.No.57 of 2019 and C.M.P.No.3999 of 2017
6. The Tribunal has awarded a sum of Rs.75,000/- for permanent
disability fixing the percentage of the disability at 25%, which is excessive and
disproportionate to the wound certificate. Hence, reduced and fixed at 10%.
7. The claimant herein has filed cross objection stating that the award
passed by the Tribunal was very less and the Tribunal has not taken the loss of
earning capacity during the treatment period. According to the claimant, in his
cross examination, he was stated that he was drawing gross salary of Rs.35,343/-
and due to medical advise, he was post availed medical leave for a month. If he
had not met with the accident, he could have saved his medical leave. The
reasoning given in the cross objection for enhancement is highly preposterous.
However, the Tribunal ought to have award some compensation for the loss of
income and for attenders charges.
8. On considering the appeal as well as the cross objection, the award
passed by the Tribunal is modified as below:
https://www.mhc.tn.gov.in/judis/
C.M.A.No.718 of 2017,
Cro.obj.No.57 of 2019 and C.M.P.No.3999 of 2017
Permanent Disability (10% x Rs.3,000/-) : Rs.30,000/-
Pain and sufferings : Rs.20,000/-
Transportation : Rs.9,200/-
Medical expenses : Rs.40,577/-
Extra nourishment : Rs.5,000/-
Attender charges : Rs.5,000/-
___________
Total Rs.1,09,777/-
9. In the result, the compensation of Rs.1,49,777/- awarded by the
Tribunal to the claimant is modified and reduced to Rs.1,09,777/-. The Insurance
Company is directed to deposit the modified award amount with interest at the rate
of 7.5% p.a., from the date of petition till the date of deposit. The learned counsel
for the appellant states that the entire award amount with accrued interest has
already been deposited. If so, the claimant is permitted to withdraw the modified
awarded amount less the amount already withdrawn. The Insurance Company is
permitted to withdraw the excess amount, if any on filing appropriate petition.
10. With the above modification and direction, the Civil
Miscellaneous Appeal is partly allowed and the Cross Objection is dismissed.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.718 of 2017,
Cro.obj.No.57 of 2019 and C.M.P.No.3999 of 2017
Consequently, connected Miscellaneous Petition is also closed. No costs.
02.02.2021
Index : Yes/No
Internet : Yes/No
rpl
To,
1.The Motor Accidents Claims Tribunal (Special Subordinate Judge), Tirupattur.
2.The Section Officer, VR Section, Madras High Court.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.718 of 2017,
Cro.obj.No.57 of 2019 and C.M.P.No.3999 of 2017
DR.G.JAYACHANDRAN,J.
rpl
C.M.A.No.718 of 2017
& C.M.P.No.3999 of 2017
& Cross Objection No.57 of 2019
02.02.2021
https://www.mhc.tn.gov.in/judis/
