Madras High Court
M/S.Bharti Axa General vs Selvam @ Selvaraju on 8 February, 2021
C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.518 of 2020 and C.M.P.No.3181 of 2020
and Cross Obj.No.52 of 2020
C.M.A.No.518 of 2020
M/s.Bharti AXA General
Insurance Company Ltd.
No.965, II floor, Avinashi road
Coimbatore-641 037. .. Appellant
Vs.
1.Selvam @ Selvaraju
2.K.Velusamy .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
29.04.2019 made in M.C.O.P.No.1229 of 2012 on the file of Motor
Accident Claims Tribunal, Special Sub Court No.I, Salem.
For Appellant : Mr.S.Arunkumar
For R1 : Mr.A.Deivasigamani
for Mr.K.Sathiyamurthi
Cross Objection No.52 of 2020
Selvam @ Selvaraju .. Cross Objector
Vs.
1.M/s.Bharti AXA General
Insurance Company Ltd.
No.965, II floor, Avinashi road
Coimbatore-641 037.
2.K.Velusamy .. Respondents
Prayer: This Cross Objection is filed under Order XXXXI Rule 22 of
C.P.C against the judgment and decree dated 29.04.2019 made in
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
M.C.O.P.No.1229 of 2012 on the file of Motor Accident Claims Tribunal,
Special Sub Court No.I, Salem.
For Cross Objector : Mr.A.Deivasigamani
for Mr.K.Sathiyamurthi
For R1 : Mr.S.Arunkumar
COMMON JUDGMENT
C.M.A.No.518 of 2020 is filed by the appellant/Insurance
Company to set aside the award dated 29.04.2019 made in
M.C.O.P.No.1229 of 2012 on the file of Motor Accident Claims Tribunal,
Special Sub Court No.I, Salem.
Cross.Obj.No.52 of 2020 is filed to set aside the portion of the
award fixing 25% negligence on the 1st respondent/claimant and for
enhancement of compensation granted by the Tribunal in the award dated
29.04.2019 made in M.C.O.P.No.1229 of 2012 on the file of Motor
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
Accident Claims Tribunal, Special Sub Court No.I, Salem.
2.The appellant is the 2nd respondent in M.C.O.P.No.1229 of 2012
on the file of Motor Accident Claims Tribunal, Special Sub Court No.I,
Salem. The 1st respondent filed the said claim petition claiming a sum
of Rs.15,00,000/- as compensation for the injuries sustained by him in
the accident that took place on 22.01.2011.
3.According to the 1st respondent, on the date of accident viz.,
22.01.2011 at about 10.00 a.m., he was riding in his TVS 50 champ two
wheeler on Sankari to Idappadi Road, while crossing Bhavano to Salem
National Highways four way track on the Kuppanoor four road junction,
the driver of the Tata safari car belonging to the 2nd respondent drove the
same in a rash and negligent manner, dashed on the back side of the two
wheeler and caused the accident. In the accident, the 1st respondent
sustained grievous injuries all over the body and hence, filed the claim
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
petition claiming compensation against the appellant/Insurance Company
and the 2nd respondent.
4.The 2nd respondent, owner of the car remained exparte before the
Tribunal.
5.The appellant/Insurance Company being insurer of the car filed
counter statement denying the averments made in the claim petition and
stated that there was a delay in lodging F.I.R. The accident is a collision
of TATA car belonging to the 2nd respondent and TVS champ two wheeler
driven by the 1st respondent. As per F.I.R., the driver of the car drove the
same from West to East direction, the 1st respondent has driven the two
wheeler from North to South direction. The accident has occurred due to
rash and negligent riding of the two wheeler by the 1 st respondent and he
is the tort-feasor. The two wheeler was hit on the left front portion of the
car. The 1st respondent did not possess valid driving license to ride the
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
two wheeler at the time of accident. Therefore, the appellant/Insurance
Company is not liable to pay any compensation to the 1 st respondent.
The 1st respondent has to prove the age, avocation and income. In any
event, the total 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, one Settu, eye-witness to the accident was examined as P.W.2 and
13 documents were marked as Exs.P1 to P13. The appellant/Insurance
Company examined one Shanmugasundaram, the driver of the car as
R.W.1 and one Mr.Senthilkumar, Special Sub-Inspector of Police,
Sankari Police Station, as R.W.2 and did not file any documentary
evidence. The disability certificate issued by the Medical Board, Omalur
and x-ray were marked as Exs.C1 and C2 respectively. Copy of F.I.R. and
F.I.R., observation mahazar, rough sketch were marked as Exs.W1 and
W2 respectively.
7.The Tribunal considering the pleadings, oral and documentary
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
evidence, held that the accident has occurred due to rash and negligent
riding of the two wheeler by the 1st respondent as well as the driver of the
car belonging to the 2nd respondent, fixed 25% negligence on the part of
the 1st respondent and 75% on the part of the driver of the car, awarded a
sum of Rs.8,27,588/- as compensation to the 1st respondent and directed
the appellant/Insurance Company being insurer of the said car to pay a
sum of Rs.6,20,691/- being 75% of the compensation to the 1 st
respondent.
8.To set aside the award dated 29.04.2019 made in
M.C.O.P.No.1229 of 2012, the appellant/Insurance Company has come
out with the present appeal. Not being satisfied with the amounts
awarded by the Tribunal, the 1st respondent has filed Cross-Obj.No.52 of
2020 seeking enhancement of compensation granted by the Tribunal.
9.The learned counsel appearing for the appellant/Insurance
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
Company contended that the accident occurred only due to negligence of
the 1st respondent, he is the tort-feasor and hence, the claim petition filed
under Section 166 of the Motor Vehicles Act is not maintainable. The 1st
respondent himself has admitted that even after seeing the car coming in
the National Highways 100 meters away, he crossed the National
Highways from side road thinking before the car goes, he could cross the
road. In view of the above statement, the driver of the car is not
responsible for the accident. F.I.R. was registered only against the 1st
respondent. The 1st respondent failed to file F.I.R. before the Tribunal.
The appellant examined the driver of the car and Investigation Officer as
R.W.1 and R.W.2 respectively and marked F.I.R. and rough sketch and
proved that the accident has occurred only due to negligence of the 1st
respondent. The Tribunal ought to have fixed entire negligence on the 1 st
respondent and dismissed the claim petition. The learned counsel for the
appellant without prejudice to the above, further submitted that the
disability assessed by the Medical Board is not for whole body and loss
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
of earning capacity. The Medical Board has not enclosed any work sheet
or any guidelines with regard to assessment of the disability. The
Tribunal failed to consider that there is no physical disablement or loss of
earning capacity and erroneously awarded a sum of Rs.7,02,000/-
towards loss of earning capacity contrary to the judgment of the Hon'ble
Apex Court and prayed for setting aside the award of the Tribunal and
dismissal of the cross-objection filed by the 1st respondent.
10.Per contra, the learned counsel appearing for the 1st respondent
contended that the accident has occurred only due to rash and negligent
driving by the driver of the car belonging to the 2nd respondent. The 1st
respondent has proved the negligence on the part of the driver of the car
by examining himself as P.W.1 and eye-witness to the accident as P.W.2.
The Tribunal having held that the accident would have been avoided had
the driver of the car driven the car in a normal speed, without considering
the materials placed before it, erroneously fixed 75% negligence instead
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
of 100% negligence on the driver of the car belonging to the 2nd
respondent.
10(i). The learned counsel appearing for the 1st respondent further
contended that the 1st respondent was aged 42 years at the time of
accident. The Tribunal erroneously fixed age of the 1st respondent as 47
years relying on Ex.P8/driving license and Ex.P12/Aadhar card. The 1st
respondent was working as a driver and was earning a sum of
Rs.12,000/- per month at the time of accident. Due to amputation, he
could not continue his work as he was doing earlier. The Tribunal
erroneously fixed meagre amount of Rs.4,500/- per month as notional
income of the 1st respondent instead of fixing monthly income at
Rs.12,000/- and applied multiplier '13'. The compensation awarded by
the Tribunal under different heads are meagre and prayed for
enhancement of compensation and dismissal of the appeal filed by the
appellant/Insurance Company.
11.Heard through “Video-conferencing” the learned counsel
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
appearing for the appellant/Insurance Company as well as the learned
counsel appearing for the 1st respondent and perused the entire materials
on record.
12.It is the case of the 1st respondent that while he was riding the
two wheeler from North to South direction and almost crossing the road
in the National Highways four way after due care, the driver of the car
belonging to the 2nd respondent drove the same in a rash and negligent
manner from West to East direction, dashed on the two wheeler driven by
the 1st respondent and caused the accident. To prove the same, the 1st
respondent examined himself as P.W.1 and eye-witness to the accident as
P.W.2. On the other hand, it is the case of the appellant that the accident
has occurred only due to negligence of the 1st respondent, when he
crossed the National Highways road even after noticing the car, which
was coming in the National Highways 100 meters away from West to
East direction. To prove the same, the driver of the car was examined as
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
R.W.1 and Sub-Inspector of Police was examined as R.W.2 and marked
F.I.R., which was registered against the 1st respondent, observation
mahazar and rough sketch as Exs.W1 and W2.
13.From the materials on record, it is seen that the 1 st respondent
has admitted in his cross-examination that he saw the car coming in the
National Highways 100 meters away and he tried to cross the road
thinking that he could cross the National Highways before the car
reaches the place. The 1st respondent, who was coming from side road
ought to have been careful while crossing the National Highways. The
Tribunal considering the evidence of R.W.1, R.W.2 and Exs.W1 and W2,
did not accept the evidence of P.W.2, the alleged eye-witness and held
that the accident has occurred due to negligence on the part of the 1st
respondent well as the driver of the car belonging to the 2nd respondent.
The Tribunal on such finding fixed 25% negligence on the 1st respondent
and 75% negligence on the driver of the car belonging to the 2nd
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
respondent. Considering the materials in its entirety and the fact that the
1st respondent tried to cross the National Highways from side road, the 1 st
respondent ought to have been more vigilant and the driver of the car,
who was driving the car in the National Highways also might be careful,
while crossing the side road. This Court is of the view that both the 1st
respondent as well as the driver of the car have equally contributed to the
accident. The award of the Tribunal fixing 25% negligence on the part of
the 1st respondent and 75% negligence on the part of the driver of the car
is modified to the extent that both the 1st respondent as well as the driver
of the car have contributed negligence equally and 50% negligence is
fixed on both of them.
14.As far as quantum of compensation awarded by the Tribunal is
concerned, the contention of the learned counsel appearing for the 1st
respondent that the appellant was aged 42 years at the time of accident
and the Tribunal erroneously relying on Ex.P8/driving license and
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
Ex.P12/Aadhar card, fixed the age of the claimant as 47 years, is not
acceptable. The Tribunal considering the date of birth of the 1st
respondent mentioned in Ex.P8/driving license and Ex.P12/Aadhar card,
fixed the age of the 1st respondent as 47 years and the same is proper. It is
the case of the 1st respondent that in the accident, he suffered fracture of
lower limb and left hand, injury on the eye-brow and multiple injuries all
over the body. At the time of accident, he was working as a driver and
was earning a sum of Rs.12,000/- per month. The Tribunal fixed a sum of
Rs.5,625/- as monthly income including future prospects and the same is
meagre. The accident is of the year 2011 and hence, a sum of Rs.7,500/-
including future prospects is fixed as notional income of the 1st
respondent. Thus, the compensation awarded by the Tribunal towards
loss of earning capacity is modified to Rs.9,36,000/- (Rs.7,500/- X 12 X
13 X 80/100). The amounts awarded by the Tribunal under all other
heads are just and reasonable and hence, the same are hereby confirmed.
S.No Description Amount Amount Award
awarded by awarded by confirmed or
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Pain and 50,000 50,000 Confirmed
suffering
2. Medical 9,588 9,588 Confirmed
expenses
3. Transportation 15,000 15,000 Confirmed
4. Extra 10,000 10,000 Confirmed
nourishment
5. Attendant 15,000 15,000 Confirmed
charges
6. Damage to 1,000 1,000 Confirmed
clothes
7. Loss of 25,000 25,000 Confirmed
amenities
8. Loss of earning 7,02,000 9,36,000 Enhanced
capacity
Total 8,27,588 10,61,588
75% of the 6,20,691 Reduced by
award amount Rs.89,897/-
(6,20,691-
50% of the 5,30,794 5,30,794)
award amount
15.In the result, C.M.A.No.518 of 2020 filed by the
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
appellant/Insurance Company is partly allowed and Cros.obj.No.52 of
2020 filed by the 1st respondent is partly allowed in respect of the head
“loss of earning capacity”. The compensation awarded by the Tribunal at
Rs.8,27,588/- is hereby enhanced to Rs.10,61,588/- together with interest
at the rate of 7.5% per annum from the date of petition till the date of
deposit. The appellant/Insurance Company is directed to deposit a sum
of Rs.5,30,794/- being 50% of the award amount as compensation 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. On such deposit, the 1 st 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.
The appellant/Insurance Company is permitted to withdraw excess
amount, if any, lying in the deposit to the credit of M.C.O.P.No.1229 of
2012 on the file of Motor Accident Claims Tribunal, Special Sub Court
No.I, Salem, if the entire award amount has already been deposited by
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
them. Consequently, connected Miscellaneous Petition is closed. No
costs.
08.02.2021
Index : Yes
kj
To
1.The Special Subordinate Judge No.I
(Motor Accident Claims Tribunal)
Salem.
2.The Section Officer,
V.R Section,
High Court, Chennai.
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C.M.A. No.518 of 2020
and
Cross Obj.No.52 of 2020
V.M.VELUMANI, J.,
kj
C.M.A.No.518 of 2020 and
C.M.P.No.3181 of 2020
and Cross Obj.No.52 of 2020
08.02.2021
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https://www.mhc.tn.gov.in/judis/
