Madras High Court
Sureshkumar @ Suresh vs B.Baskaran on 17 February, 2021
C.M.A.No.3355 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3355 of 2019
Sureshkumar @ Suresh .. Appellant
Vs.
1.B.Baskaran
2.The Divisional Manager,
Divisional Office of the
New India Assurance Company Limited,
No.106, Big Street, Vasavi Buildings,
Tiruvannamalai Town and District.
3.R.Govindaraj
4.The Divisional Manager,
Divisional Office,
United India Insurance Company Limited,
TKM Complex,
No.I, Katpadi Road,
Vellore Town, Taluk and District. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
09.03.2018 made in M.C.O.P.No.223 of 2014 on the file of the Motor
Accident Claims Tribunal, III Additional District Court, Vellore at Tirupattur.
For Appellant : Mr.Kumaravelan
1/17
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C.M.A.No.3355 of 2019
For R2 : Mr.J.Michael Visuvasam
For R4 : Ms.R.Sreevidhya
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside the order of
dismissal dated 09.03.2018 made in M.C.O.P.No.223 of 2014 on the file of
the Motor Accident Claims Tribunal, III Additional District Court, Vellore at
Tirupattur.
2.The appellant is the claimant in M.C.O.P.No.223 of 2014 on the file
of the Motor Accident Claims Tribunal, III Additional District Court, Vellore
at Tirupattur. He filed the above said claim petition, claiming a sum of
Rs.5,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 01.07.2011.
3.According to appellant, on 01.07.2011 at about 19.30 hours, while he
was driving the car bearing Registration No.TN 07 W 5310 belonging to 1st
respondent and insured with 2nd respondent very slowly, carefully observing
all the rules of the road on the Vaniyambadi – Tirupattur main road near
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C.M.A.No.3355 of 2019
Ponneri opposite to Mettuchakkarakuppam, Anjeneyar Koil, the driver of the
lorry bearing Registration No.TN 04 H 0177 belonging to 3rd respondent and
insured with 4th respondent who was driving the lorry from the opposite
direction in a rash and negligent manner, dashed against the car driven by the
appellant and caused the accident. In the accident, the appellant sustained
multiple grievous injuries all over the body. Immediately after the accident,
the appellant was taken to Government Hospital, Tirupattur for first aid
treatment and thereafter he was taken to Vellore Medical College Hospital for
further medical treatment. Therefore, the appellant filed the above said claim
petition claiming a sum of Rs.5,00,000/- as compensation against the
respondents.
4.The respondents, 1 and 3, being the owner of the car and lorry
respectively remained exparte before the Tribunal.
5.The 2nd respondent-New India Assurance Company, being the insurer
of the car filed counter statement and denied all the averments made by the
appellant. According to the 2nd respondent, the owner of the car has taken
only Act policy and no extra premium was paid for the driver of the car as
well as for the occupant of the car. The accident has occurred only due to the
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C.M.A.No.3355 of 2019
negligence on the part of the driver of the lorry belonging to 3 rd respondent.
Hence, the 2nd respondent is not liable to pay any compensation to the
appellant. The appellant admitted his guilt and paid fine for his own
negligence act and he was possessing only Learner's License and without the
assistance of an experienced driver, the appellant drove the car. Hence, the 2 nd
respondent is not liable to pay any compensation to the appellant. The 2 nd
respondent denied the nature of injuries sustained by the appellant. In any
event, the quantum of compensation claimed by the appellant is highly
excessive and prayed for dismissal of the claim petition.
6.The 4th respondent-United India Insurance Company, being the
insurer of the lorry belonging to 3rd respondent filed separate counter
statement and denied all the averments made by the appellant. According to
4th respondent, the lorry belonging to 3rd respondent with load of Maida was
driven by the driver in a normal speed and the appellant only drove the car at
a high speed in a rash and negligent manner due to in-experienced driving
without having valid driving license, dashed against the rear right side of 3 rd
respondent's lorry and caused the accident. The appellant possessed only
Learner's License (LLR) and he drove the car without the assistance of
experienced driver by his side. The accident has occurred only due to the
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C.M.A.No.3355 of 2019
negligence on the part of the appellant and hence, the respondents 3 and 4 are
not liable to pay any compensation to the appellant. The Jolarpettai Police
registered F.I.R. in Crime No.318 of 2011 under Sections 279 and 337 of
I.P.C. against the appellant and charge sheet was filed before the Judicial
Magistrate's Court No.I, Tirupattur in STC No.187/2012 against the appellant
and the appellant paid a fine of Rs.1,000/-. Hence, the accident has occurred
only due to negligence on the part of the appellant and only the respondents 1
and 2 are liable to pay the compensation. The 4th respondent denied the nature
of injuries, disability, period of treatment taken and medical bills of the
appellant. In any event, the quantum of compensation claimed by the
appellant is exorbitant and prayed for dismissal of the claim petition.
7.The appellant filed written statement and denied the counter
statements filed by the respondents 2 and 4. According to appellant, the
accident has occurred only due to the rash and negligent driving by the driver
of the lorry belonging to 3rd respondent and in the accident, the appellant
sustained multiple grievous injuries all over his body. Taking advantage of the
critical position of the appellant, the lorry driver rushed to the Police Station
and has given false statement about the accident. The Jolarpettai Police also
without enquiring the appellant and without knowing the true fact, lodged the
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C.M.A.No.3355 of 2019
F.I.R. against the appellant, eventhough the accident has occurred only due to
the negligence on the part of the driver of the lorry belonging to 3rd
respondent. The appellant was possessing valid driving license to drive the
said car and the same was marked as Ex.P6. Additional premium was also
paid to cover the driver of the car in the Insurance Policy and the same was
marked as Ex.P5. The appellant is third party to the lorry and the Insurance
Policy of the lorry was marked as Ex.P4 and the copy of the driving license of
the lorry belonging to 3rd respondent was marked as Ex.P7. F.I.R. is not a
public document and F.I.R. has to be proved by calling the witness or the
person who lodged the F.I.R. In the present case, the 4 th respondent has not
proved the contents of F.I.R. and also not sent any summon to the driver of
the lorry. P.W.1 in his cross examination has deposed that the accident has
occurred only due to negligence on the part of the driver of the lorry belonging
to 3rd respondent and P.W.2/eyewitness to the accident also deposed that the
accident has occurred only due to the negligence on the part of the driver of
the lorry belonging to 3rd respondent. The Tribunal has to fix the negligence
based on the evidence let in before it and not based on the contents of F.I.R.
The appellant sustained broken teeth upper incisor, displacement of lower
incisor, swelling and tenderness of left arm, swollen lip and multiple injuries
all over the body. He has taken treatment as inpatient at Tirupattur
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C.M.A.No.3355 of 2019
Government Hospital, Vellore Government Medical College Hospital and also
in various Private Nursing Homes at Tirupattur. The Accident Register issued
by Government Hospital, Tirupattur and Discharge Summary issued by
VMCH were marked as Exs.P2 & P3 respectively. The Medical Board,
Vellore Medical College Hospital examined the appellant and certified that
appellant suffered 20% disability. The owner of the car also paid additional
premium for the coverage of driver and the appellant being the third party to
the lorry, both the respondents 2 and 4 are liable to pay compensation.
8.Before the Tribunal, the appellant examined himself as P.W.1, one
Rajini, eyewitness to the accident was examined as P.W.2 and 10 documents
were marked as Exs.P1 to P10. On behalf of the respondents 2 and 4, two
witnesses were examined as R.W.1 & R.W.2 and 9 documents were marked
as Exs.R1 to R9.
9.The Tribunal considering the pleadings, oral and documentary
evidence, dismissed the claim petition on the ground that the appellant is
responsible for the accident and being the tort feasor, he is not entitled to any
compensation.
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C.M.A.No.3355 of 2019
10.Against the said order of dismissal dated 09.03.2018 made in
M.C.O.P.No.223 of 2014, the appellant has come out with the present appeal
for granting compensation.
11.The learned counsel appearing for the appellant contended that the
accident has occurred only due to the negligence on the part of the driver of
the lorry belonging to 3rd respondent. The Tribunal erroneously fixed
negligence on the part of the appellant on the ground that appellant admitted
his guilt and paid fine in Criminal Proceedings. The appellant has
categorically denied the stand that he admitted his guilt and paid fine. The
Tribunal without properly appreciating the evidence of appellant as P.W.1,
erroneously fixed negligence on the part of the appellant. P.W.2, who was an
occupant of the car and eyewitness to the accident deposed that driver of the
lorry belonging to 3rd respondent who coming in the opposite direction in a
rash and negligent manner, dashed on the car driven by the appellant and
caused the accident. The Tribunal failed to consider the evidence of P.W.2.
The appellant was possessing Learner's License at the time of accident.
P.W.2, licensed driver was sitting with the appellant. The Tribunal failed to
note that respondents merely pleaded that the appellant admitted his guilt
before the Magistrate Court, but they failed to prove their pleading through
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C.M.A.No.3355 of 2019
documentary evidence to show that the appellant pleaded guilty before the
Magistrate Court and paid fine amount. In the absence of any documentary
evidence regarding alleged guilty by the appellant, the Tribunal have no
embargo in allowing the claim being made under benevolent legislation. In the
absence of any evidence to prove that appellant pleaded guilty and paid fine,
the Tribunal erroneously erred in holding that appellant was negligent and
responsible for the accident. The Tribunal has to consider the evidence placed
before it for fixing the negligence, but erroneously relied on the Criminal
Proceedings and prayed for setting aside the award of dismissal and for
granting compensation and for a direction to the respondents to pay the
compensation to the appellant.
12.Per contra, Mr.J.Michael Visuvasam, learned counsel appearing for
the 2nd respondent-New India Assurance Company Limited contended that
appellant was tort feasor and the policy issued by the 2nd respondent is only
Act Policy. The owner of the car has not paid any extra premium for the claim
of driver as well as occupant of the car. The appellant did not possess valid
driving license at the time of accident. P.W.2 is not an experienced driver and
he cannot be an instructor for the appellant. The Tribunal considering all the
materials placed before it, dismissed the claim petition and there is no error in
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C.M.A.No.3355 of 2019
the said finding of the Tribunal and prayed for dismissal of the appeal.
13.Ms.R.Sreevidhya, learned counsel appearing for the 4th respondent-
United India Insurance Company Limited, insurer of the lorry belonging to 3rd
respondent contended that appellant was holding only a Learner's License and
he drove the car without any assistance of experienced driver. He was not an
experienced driver to drive the car and due to his inexperience only, the
accident has occurred. The appellant admitted his guilt and paid fine. The
Tribunal considering all the materials, dismissed the claim petition and there
is no error in the said finding of the Tribunal and prayed for dismissal of the
appeal.
14.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 2nd respondent and the learned counsel
appearing for the 4th respondent and perused the entire materials on record.
15.It is the case of the appellant that while he was driving the car
belonging to 1st respondent, the driver of the lorry belonging to 3 rd respondent
coming in the opposite direction drove the lorry in a rash and negligent
manner and dashed on the car driven by the appellant and caused the
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C.M.A.No.3355 of 2019
accident. To substantiate the same, the appellant examined himself as P.W.1
and one Rajini, eyewitness to the accident as well as occupant of the car was
examined as P.W.2 and marked F.I.R. as Ex.P1. On the other hand, it is the
case of the 2nd respondent that appellant was a tort feasor, he did not possess
driving license at the time of accident and hence he is not entitled to
compensation from the 2nd respondent. In support of their case, the 2nd
respondent examined its Official as R.W.1. It is the case of the 4th respondent
that accident has occurred only due to rash and negligent driving by the
appellant without any valid driving license. F.I.R. was registered against the
appellant. In the Criminal Case, appellant admitted his guilt and paid fine. In
support of their case, the respondents 2 and 4 have not examined any witness.
The 4th respondent did not examine the driver of the lorry. P.W.2 has deposed
that he is a driver and he was possessing driving license. F.I.R. is registered
against the appellant and appellant as P.W.1 has deposed that accident
occurred only due to rash and negligent driving by the driver of the lorry and
also examined P.W.2/eyewitness to the same effect. The appellant in the cross
examination denied that he pleaded guilty and paid fine in the Criminal
Proceedings. The 4th respondent who has taken a stand that appellant pleaded
guilty and paid fine, failed to produce the documents to prove their case. The
Tribunal without properly appreciating the evidence of appellant as P.W.1,
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C.M.A.No.3355 of 2019
especially the denial of the appellant that he pleaded guilty in the Criminal
Proceedings and paid fine and failure on the part of the 4th respondent to
produce the document to substantiate their case, held that appellant pleaded
guilty and paid fine and erroneously held that appellant was negligent and
responsible for the accident and dismissed the claim petition. The said
erroneous finding of the Tribunal is liable to be set aside and it is hereby set
aside.
16.From the materials on record, it is seen that both the car and lorry
were driven in the opposite direction. The accident has occurred when the car
dashed on the right side back wheel of the lorry. Had the appellant been
careful while crossing the lorry, he would have avoided the accident. Similarly
the driver of the lorry also could have avoided the accident had he been
careful in driving the lorry when the car was coming in the opposite direction.
This shows that when the vehicles were crossing each other, accident has
occurred. Two vehicles were involved in the accident and both the drivers
were negligent in driving the vehicles when they are crossing each other and
hence, both the drivers are negligent and responsible for the accident.
Considering the entire materials on record, the negligence is fixed equally on
both the appellant as well as on the part of the driver of the lorry belonging to
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C.M.A.No.3355 of 2019
3rd respondent. The 4th respondent-United India Insurance Company Limited
has not denied that lorry belonging to 3rd respondent was insured with them at
the time of accident. Therefore, the 4th respondent as insurer of the lorry is
liable to pay 50% of the compensation awarded.
17.It is the case of the 2nd respondent that appellant possessed only
Learner's License at the time of accident and he is a tort feasor and hence, the
2nd respondent is not liable to pay any compensation and policy issued by
them is only Act policy. On the other hand, the owner of the car had paid
additional premium for the driver. R.W.1 has admitted the same. On perusal
of Ex.P5/copy of Insurance Policy of car, it is seen that no additional premium
was paid by the 1st respondent. Hence, the 2nd respondent is not liable to pay
any compensation to the appellant and the appellant is entitled to only 50% of
the compensation from the 4th respondent.
18.As far as quantum of compensation is concerned, it is the case of the
appellant that in the accident he suffered broken teeth upper incisor,
displacement of lower incisor, swelling and tenderness of Left arm, swollen
lips and multiple grievous injuries all over his body. The Medical Board from
Vellore Medical College Hospital examined the appellant and certified that
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C.M.A.No.3355 of 2019
appellant suffered 20% disability and the Medical Board report was marked
as Ex.P10. The accident occurred in the year 2011 and the appellant is
entitled to a sum of Rs.3,000/- per percentage of disability. Thus, the
appellant is entitled to a sum of Rs.60,000/- (Rs.3,000/- X 20% of disability)
towards disability. The appellant has not proved that he suffered functional
disability and lost his earning capacity. Hence, he is not entitled to
compensation towards loss of earning capacity by adopting multiplier method.
19.It is the contention of the appellant that at the time of accident, he
was working as Driver and was earning a sum of Rs.9,000/- per month. He
failed to prove the said contention. Considering the date of accident, age and
nature of work done by the appellant, a sum of Rs.9,000/- per month as
claimed by the appellant is fixed as his notional income. Due to the injuries
and disability, the appellant would not have attended his work atleast for a
period of three months. Thus, the appellant is entitled to a sum of Rs.27,000/-
(Rs.9,000/- X 3 months) towards loss of income. The appellant has taken
treatment in the hospital as inpatient for 5 days from 02.07.2011 to
06.07.2011. Considering the nature of injuries and period of treatment taken
by the appellant, he is entitled to a sum of Rs.7,500/- for attendant charges,
Rs.10,000/- for pain and sufferings, Rs.7,500/- for extra nourishment,
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C.M.A.No.3355 of 2019
Rs.10,000/- for loss of amenities, Rs.5,000/- for transportation and Rs.1,000/-
for damages to clothes. Thus, the compensation awarded by this Court is as
follows:
S. Description Amount awarded by
No this Court
(Rs)
1. Disability 60,000/-
2. Loss of income 27,000/-
3. Pain and sufferings 10,000/-
4. Attendant charges 7,500/-
5. Extra nourishment 7,500/-
6. Loss of amenities 10,000/-
7. Transportation 5,000/-
8. Damages to clothes 1,000/-
Total Rs.1,28,000/-
50% of the award amount Rs.64,000/-
20.In the result, this Civil Miscellaneous Appeal is allowed and the
appellant is entitled to 50% of the total compensation of Rs.1,28,000/-. The 4 th
respondent-United India Insurance Company is directed to deposit 50% of the
total award amount, i.e., Rs.64,000/- together with interest at the rate of 7.5%
per annum from the date of petition till the date of deposit, 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.223 of 2014 on the file of the Motor Accident Claims Tribunal,
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C.M.A.No.3355 of 2019
III Additional District Court, Vellore at Tirupattur. On such deposit, the
appellant is permitted to withdraw the award amount now determined by this
Court, along with interest and costs, by making necessary applications before
the Tribunal. This appeal is dismissed as against the respondents 1 & 2. No
costs.
17.02.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The III Additional District Judge,
Motor Accident Claims Tribunal,
Tirupattur,
Vellore.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
krk
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C.M.A.No.3355 of 2019
17.02.2021
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