Madras High Court
Mohan Kumar vs Abdul Sheriff on 23 February, 2021
C.M.A.No.307 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.307 of 2021
Mohan Kumar .. Appellant
Vs.
1.Abdul Sheriff
2.United India Insurance Company Limited,
Perambalur. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
11.11.2019 made in M.C.O.P.No.639 of 2015 on the file of the Motor
Accidents Claims Tribunal, Chief Judicial Magistrate's Court, Perambalur.
For Appellant : Mr.C.Vidhusan
For R2 : Ms.I.Malar
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the
contributory negligence fixed on the part of the appellant as well for
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C.M.A.No.307 of 2021
enhancement of compensation granted by the Tribunal in the award dated
11.11.2019 made in M.C.O.P.No.639 of 2015 on the file of the Motor
Accidents Claims Tribunal, Chief Judicial Magistrate's Court, Perambalur.
2.The appellant is the claimant in M.C.O.P.No.639 of 2015 on the file
of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate's Court,
Perambalur. He filed the said claim petition, claiming a sum of Rs.50,00,000/-
as compensation for the injuries sustained by him in the accident that took
place on 24.02.2015.
3.According to the appellant, on 24.02.2015 at about 06.00 P,M., while
he was riding the motorcycle bearing Registration No.TN 46 R 5017 slowly
and carefully from South to North on the west corner of the Taluk Office road
at Kunnam, the driver of the lorry bearing Registration No.TN 61 8282
belonging to 1st respondent, drove the same from North to South on the
opposite direction in a rash and negligent manner and dashed against the
motorcycle rode by the appellant and caused the accident. In the accident, the
appellant sustained multiple grievous injuries all over his body. Immediately
after the accident, the appellant was taken to Perambalur Government
Hospital for first aid treatment and thereafter, he was admitted in the
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C.M.A.No.307 of 2021
Geethanjali Hospital, Trichy. Therefore, the appellant filed the above said
claim petition, claiming a sum of Rs.50,00,000/- as compensation for the
injuries sustained by him against the respondents, being the owner and
insurer of the car respectively.
4.The 1st respondent-owner of the lorry remained exparte before the
Tribunal.
5.The 2nd respondent-Insurance Company, being the insurer of the lorry
filed counter statement and denied all the averments made by the appellant.
The 2nd respondent-Insurance Company denied the manner of accident.
According to the 2nd respondent, when the appellant was reaching Kunnam
Taluk Office from South to North, he rode the motorcycle without obeying the
traffic rules in a rash and negligent manner at a high speed, where there are
lots of hairpin bends and curves. On seeing the negligent riding by the
appellant, the driver of the lorry, who was driving the lorry in a slow and
cautious manner by obeying the traffic rules, sounded horn, gave caution and
applied sudden brake and stopped the lorry. But, the appellant did not listen
to the caution and suddenly came to the middle of the road without noticing
the lorry, which was coming behind and dashed on the lorry and invited the
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C.M.A.No.307 of 2021
accident. Therefore, the accident has occurred only due to the negligence on
the part of the appellant and not due to the negligence on the part of the driver
of the lorry belonging to 1st respondent. The 2nd respondent deny that
appellant was possessing driving license at the time of accident and the fact
that the motorcycle rode by the appellant was insured. The 2nd respondent
denied the age, avocation, income, nature of injuries and disability suffered 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.Before the Tribunal, the appellant examined himself as P.W.1 and
one Swaminathan was examined as P.W.2 and 14 documents were marked as
Exs.P1 to P14. The 2nd respondent-Insurance Company did not let in any oral
and documentary evidence. The Disability Certificate issued by the
Perambalur, Medical Board was marked as Ex.C1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the lorry belonging to the 1st respondent and fixed 10%
negligence on the part of the appellant for not possessing valid driving license
at the time of accident, awarded a sum of Rs.10,49,407/- as compensation and
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C.M.A.No.307 of 2021
directed the 2nd respondent-Insurance Company, being the insurer of the lorry
to pay a sum of Rs.9,44,466/- being 90% of the award amount as
compensation to the appellant.
8.Challenging the portion of the award fixing 10% contributory
negligence on the part of the appellant as well as for enhancement of
compensation, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant contended that the
Tribunal erroneously fixed 10% contributory negligence on the part of the
appellant on the ground that he did not possess driving license at the time of
accident. The accident occurred only due to the negligence on the part of the
driver of the lorry belonging to 1st respondent and F.I.R. was registered
against the driver of the lorry. The Tribunal ought to have fixed entire
negligence on the part of the driver of the lorry belonging to 1st respondent. In
the accident, the appellant sustained multiple grievous injuries and has taken
treatment as inpatient for 31 days from 24.02.2015 to 26.03.2015 at Gitanjali
Hospital, Trichy and underwent surgeries on 25.02.2015 & 09.03.2015 and
rods and plates were fixed. The Perambalur Medical Board examined the
appellant and certified that he suffered 70% disability and issued
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C.M.A.No.307 of 2021
Ex.C1/disability certificate to that effect. The Tribunal granted only a sum of
Rs.2,10,000/- towards disability at the rate of Rs.3,000/- per percentage of
disability. The appellant was aged 53 years, working as Technician in BSNL
Department, Kunnam BSNL Office and was earning a sum of Rs.30,000/- per
month at the time of accident. The compensation awarded by the Tribunal
towards loss of income is meagre. The amounts awarded by the Tribunal
towards pain and sufferings, extra nourishment and transportation, mental
agony and attendant charges are meagre and prayed for setting aside the
portion of the award fixing 10% contributory negligence on the part of the
appellant and for enhancement of compensation.
10.Per contra, Ms.I.Malar, learned counsel appearing for the 2nd
respondent contended that the accident did not occur due to rash and
negligent driving by the driver of the lorry belonging to 1 st respondent as
alleged by the appellant. The appellant only rode the motorcycle without
driving license in a rash and negligent manner and caused the accident. The
Tribunal ought to have fixed entire negligence on the part of the appellant and
exonerated the 2nd respondent from its liability. At the time of accident, the
appellant was working as Technician in BSNL Department. The Tribunal has
fixed the monthly income of the appellant as claimed by him and awarded a
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C.M.A.No.307 of 2021
sum of Rs.3,38,907/- as compensation towards loss of income, which is
excessive. The Tribunal considering the entire materials on record, has
awarded compensation under different heads, which are not meagre and
prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 2nd respondent-Insurance Company and
perused the entire materials on record.
12.It is the case of the appellant that while he was riding the motorcycle
on 24.02.2015 at about 06.00 P,M., slowly and carefully from South to North
on the west corner of the Taluk Office road at Kunnam, the driver of the lorry
bearing Registration No.TN 61 8282 belonging to 1st respondent, drove the
same from the opposite direction in a rash and negligent manner, dashed
against the motorcycle rode by the appellant and caused the accident. In the
accident, the appellant sustained injuries and filed claim petition claiming
compensation for the injuries. In support of his case, he examined himself as
P.W.1, marked F.I.R., which was registered against the driver of the lorry
belonging to 1st respondent as Ex.P1. On the other hand, it is the case of the
2nd respondent-Insurance Company that the appellant only rode the
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C.M.A.No.307 of 2021
motorcycle in a rash and negligent manner without obeying the road traffic
rules, suddenly came to the middle of the road without noticing the lorry,
which was coming behind and dashed on the lorry and invited the accident.
The 2nd respondent did not examine any witness to prove their case that
accident has occurred due to the negligence of the appellant. The appellant in
his cross examination has deposed that he was possessing driving license at
the time of accident but he failed to produce the same before the Tribunal.
The Tribunal after considering the deposition of appellant as P.W.1 in cross
examination, held that had the appellant been possessing driving license, he
would have produced the same before the Tribunal. On such finding, the
Tribunal came to the conclusion that the appellant did not possess driving
license at the time of accident.
13.The case of the learned counsel appearing for the appellant with regard
to fixing 10% contributory negligence on the part of the appellant is concerned,
the Hon'ble Apex Court in the judgment reported in 2018 (1) TN MAC 34 (SC)
[Dinesh Kumar, J. @ Dinesh, J. Vs. National Insurance Co. Ltd. and
others], held that mere failure to produce the driving license is not sufficient to
draw adverse inference in respect of contributory negligence and non-production
of driving license by claimant is of no consequence and prayed to set aside the
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C.M.A.No.307 of 2021
contributory negligence fixed. The ratio in the said judgment is squarely
applicable to the facts of the present case and the 10% contributory negligence
fixed on the part of the appellant is liable to be set aside and is hereby set aside.
The appellant is entitled to entire compensation awarded by the Tribunal.
14.As far as quantum of compensation is concerned, it is the case of the
appellant that in the accident he suffered multiple grievous injuries all over his
body. The appellant has taken treatment as inpatient for 31 days from
24.02.2015 to 26.03.2015 at Gitanjali Hospital, Trichy, underwent surgeries
on 25.02.2015 and 09.03.2015 and rods and plates were fixed in the right leg.
The Perambalur Medical Board examined the appellant and certified that he
suffered 70% disability and issued Ex.C1/disability certificate to that effect.
The Tribunal considering the disability certificate issued by the Perambalur
Medical Board, awarded a sum of Rs.2,10,000/- for 70% disability at the rate
of Rs.3,000/- per percentage of disability and the same is meagre. This Court
by the judgment reported in 2020 (1) TN MAC 617 [M. Chinnathambi Vs.
S.Deepa and another], fixed a sum of Rs.4,000/- per percentage of disability
for the accident occurred in the year 2014 & 2015 and a sum of Rs.5,000/-
per percentage of disability for the accident occurred from the year 2016
onwards, due to raise in cost of living. In the present case, the accident is of
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the year 2015. In view of the same, a sum of Rs.4,000/- is awarded per
percentage of disability. Thus, the compensation awarded by the Tribunal
towards disability is modified to Rs.2,80,000/- (Rs.4,000/- X 70% disability).
15.It is the contention of the appellant that he was aged 53 years,
working as Technician in BSNL Department, Kunnam BSNL Office and was
earning a sum of Rs.30,000/- per month at the time of accident. The Tribunal
considering the contention of the appellant that he lost his income from
24.02.2015 to 16.06.2015, awarded a sum of Rs.3,38,907/- as compensation
to the appellant towards loss of income and the same is proper. Considering
the nature of injuries and period of treatment taken by the appellant, the
amounts awarded by the Tribunal towards pain and sufferings, extra
nourishment and transportation and attendant charges are meagre and the
same are enhanced to Rs.30,000/-, Rs.25,000/- and Rs.25,000/- respectively.
The Tribunal has not awarded any amount towards loss of amenities,
damages to clothes and future medical expenses. Considering the nature of
injuries and disability suffered by the appellant, he would have suffered
inconvenience and would be facing discomfort in his life. Hence, the appellant
is entitled to a sum of Rs.20,000/- towards loss of amenities. Considering the
fact that rods and plates were fixed in the right leg of the appellant, he is
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C.M.A.No.307 of 2021
entitled to a sum of Rs.25,000/- for removing the rods and plates. The
appellant is entitled to a sum of Rs.2,000/- towards damages to clothes. 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. Disability 2,10,000/- 2,80,000/- Enhanced
2. Pain and sufferings 10,000/- 30,000/- Enhanced
3. Extra nourishment & 15,000/- 25,000/- Enhanced
Transportation
4. Medical expenses 4,60,500/- 4,60,500/- Confirmed
5. Attendant charges 5,000/- 25,000/- Enhanced
6. Mental agony 10,000/- 10,000/- Confirmed
7. Loss of income 3,38,907/- 3,38,907/- Confirmed
8. Loss of amenities - 20,000/- Granted
9. Damages to clothes - 2,000/- Granted
10. Future medical - 25,000/- Granted
expenses
Total Rs.10,49,407/- Enhanced by
Rs.12,16,407/- Rs.2,71,941/-
90% of the award Rs.9,44,466/- (Rs.12,16,407/-
amount -
Rs.9,44,466/-)
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C.M.A.No.307 of 2021
16.In the result, this Civil Miscellaneous Appeal is partly allowed and
the total compensation awarded by the Tribunal at Rs.10,49,407/- is hereby
enhanced to Rs.12,16,407/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 2 nd respondent-
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.639 of 2015 on the file of
the Motor Accidents Claims Tribunal, Chief Judicial Magistrate's Court,
Perambalur. On such deposit, the appellant 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. No costs.
23.02.2021
krk
Index : Yes / No
Internet : Yes / No
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C.M.A.No.307 of 2021
V.M.VELUMANI, J.
krk
To
1.The Chief Judicial Magistrate,
Motor Accidents Claims Tribunal,
Perambalur.
2.The Section Officer,
VR Section,
High Court, Madras.
C.M.A.No.307 of 2021
23.02.2021
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