The United India Insurance ... vs Deivajothi ...1St
2021 Latest Caselaw 4128 Mad

                                                                                C.M.A(MD)No.158 of 2021


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                      DATED:18.02.2021

                                                          CORAM

                                   THE HONOURABLE MRS.JUSTICE J.NISHA BANU

                                             C.M.A(MD) No.158 of 2021
                                                          and
                                             C.M.P(MD)No.1357 of 2021
                     The United India Insurance Company,
                     Represented by its Manamadurai Branch Manager,
                     Having office at D.No.124-A, Bye-pass Road,
                     Anandhapuram,
                     Manamadurai.                                 .. Appellant/2nd Respondent
                                                     vs.
                     1.Deivajothi                        ...1st Respondent/Petitioner
                     2.S.Nagaraj                         ... 2nd respondent /1st respondent


                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
                     Act 1988, against the fair and decreetal order dated 02.01.2019 in
                     M.C.O.P.No.76 of 2017 on the file of the Motor Accident Claims
                     Tribunal/Chief Judicial Magistrate, Sivagangai.
                                      For Appellant      : Mr.C.Karthik
                                      For R-1            : Mr.R.Senthil kumar


                                                      JUDGMENT

This Civil Miscellaneous Appeal has been filed by the

appellant/Insurance Company against the award, dated 02.01.2019 made in

M.C.O.P.No.76 of 2017 on the file of the Motor Accident Claims

https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.158 of 2021

Tribunal/Chief Judicial Magistrate, Sivagangai, questioning the liability and

quantum.

2. The brief facts of the case are that on 15.03.2017, when the first

respondent/claimant was travelling in the Tractor and trailer belonging to the

second respondent bearing Registration No.TN 63 B 1622, from Manamadurai

to T.Pudukottai Road, near Prithiyankara Devi Temple, at about 4.30 P.M., the

Driver of the Tractor, drove the Tractor in a rash and negligent manner and as a

result of which, the petitioner fell down from the Tractor and she sustained

grievous injuries. Therefore, claiming compensation of Rs.5,00,000/- the first

respondent has filed the claim petition.

3. Before the Tribunal, resisting the claim petition filed by the first

respondent/claimant, the appellant/Insurance Company filed a counter stating

that the Driver of the Tractor drove the vehicle strictly following the Traffic

Rules and the accident occurred only due to the negligent act of the first

respondent/injured as she was sleeping in the trailer and fell down from it.

https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.158 of 2021

4.Before the Tribunal, the first respondent/claimant examined herself as

P.W.1 and marked Ex.P1 to Ex.P17. Court document Ex.C1-Disability

Certificate issued by the Sivagangai Medical Board was also marked. On the

side of the appellant/Insurance Company, no oral or documentary evidence was

produced.

5.The Tribunal, after considering the pleadings, oral and documentary

evidence, held that only due to the rash and negligent driving of the Driver of

the Tractor, the accident had occurred and awarded compensation of

Rs.4,39,600/-. However, the Tractor being the goods vehicle, carrying of

persons in the tractor is violation of policy conditions and therefore, directed

the Insurance Company to pay the compensation at the first instance and then

recover from the owner of the vehicle.

6. Aggrieved over the same, the appellant/Insurance Company has filed

this present appeal challenging the liability and quantum stating that the

accident occurred due to the first respondent's negligent act of sleeping.

https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.158 of 2021

7. Perusal of the records shows that, before the Tribunal, there was no

contra evidence on the side of the appellant/Insurance Company. The Tribunal

after considering the oral and documentary evidences found that the accident

occurred only due to the rash and negligent driving of the second respondent

and directed the appellant/Insurance Company to pay the compensation and

also ordered pay and recovery. Therefore, I do not find any infirmity in the

finding rendered by the Tribunal with regard to negligent aspect.

8. With regard to quantum, taking into consideration the injuries

sustained by the first respondent, the period in which the first

respondent/injured was admitted in the hospital, medical bills and the disability

occurred at the time of accident and taking into consideration the age of the

first respondent/injured, who was 28 years old, has fixed the compensation at

Rs.4,39,600/- on various heads namely Transport Charges, Attender Charges,

Extra Nutrition, Pain and Suffering, Medical Bills, Loss of Income and

Disability & future loss of income.

9. The Medical Board Doctors certified that the injured had

suffered 15% functional disability due to the accident. The Tribunal considering

https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.158 of 2021

that 15% disability occurred to the first respondent/injured is a functional

disability, adopted multiplier method and granted compensation of

Rs.2,29,500/- under the head of disability and future loss of income and in my

considered opinion, the same is reasonable. In all other heads also, the

compensation awarded by the Tribunal is very reasonable, which does not

warrant interference.

10. In the result, this Civil Miscellaneous Appeal is dismissed and the

award, dated 02.01.2019 made in M.C.O.P.No.76 of 2017 on the file of the

Motor Accident Claims Tribunal/Chief Judicial Magistrate, Sivagangai, is

confirmed. The appellant/Insurance Company is directed to pay the award

amount to the claimant at the first instance and thereafter, recover the same

from the second respondent/owner of the vehicle as per the mode incorporated

in "Oriental Insurance Co. Ltd., Vs. Shri Nanjappan and others, reported in

I (2004) ACC 524 (SC).

11. The appellant/Insurance Company is directed to deposit the entire

award amount with accrued interests and costs, within a period of four weeks

from the date of receipt of a copy of this order, if not already deposited and on

https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.158 of 2021

such deposit being made, the claimant is permitted to withdraw the entire award

amount with accrued interests and costs, less the amount already withdrawn if

any, by filing a proper application before the Tribunal. No Costs.

Consequently, connected Miscellaneous Petition is closed.

                     Index:Yes/No
                     Internet:Yes/No                                                       18.02.2021
                     pm

                     Note :
                     In view of the present lock down owing to
                     COVID-19 pandemic, a web copy of the

order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

To

1.The Motor Accident Claims Tribunal/Chief Judicial Magistrate, Sivagangai.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/ C.M.A(MD)No.158 of 2021

J.NISHA BANU, J

pm/gns

JUDGMENT MADE IN C.M.A(MD) No.158 of 2021

18.02.2021

https://www.mhc.tn.gov.in/judis/