Madras High Court

The Bajaj Allianz General vs Elangovan on 20 January, 2021

                                                                 C.M.A.Nos.1763 and 1968 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 20.01.2021

                                                     CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                          C.M.A.Nos.1763 and 1968 of 2020
                                            and C.M.P.No.12925 of 2020

                   C.M.A.No.1763 of 2020

                   The Bajaj Allianz General
                    Insurance Company Limited
                   TTK Complex, I floor
                   D.No.84/1, Perundurai Road
                   Opp.Erode Collector Office
                   Erode-638 011.                                            .. Appellant


                                                       Vs.
                   1.Elangovan

                   2.The Correspondent

Adharsh Vidhyalaya Matric School Adharsh Nagar, Paruvachi Post Bhavani Taluk Erode-638 501.

                   3.Perumal                                                .. Respondents

                   C.M.A.No.1968 of 2020

                   Elangovan                                                 .. Appellant





https://www.mhc.tn.gov.in/judis/
                                                                  C.M.A.Nos.1763 and 1968 of 2020

                                                         Vs.

                   1.The Correspondent
                   Adharsh Vidhyalaya Matric School
                   Adharsh Nagar, Paruvachi Post
                   Bhavani Taluk
                   Erode-638 501.

                   2.The Bajaj Allianz General
                     Insurance Company Limited
                   TTK Complex, I floor
                   D.No.84/1, Perundurai Road
                   Opp.Erode Collector Office
                   Erode-638 011.

                   3.Perumal                                                .. Respondents

Prayer: These Civil Miscellaneous Appeals are filed under Section 173 of

Motor Vehicles Act, 1988, against the judgment and decree dated 17.02.2020

made in M.C.O.P.No.71 of 2017 on the file of the Motor Accidents Claims

Tribunal, Special Sub-Court, Erode.



                                     In C.M.A.No.1763 of 2020


                                     For Appellant       : Mr.J.Michael Visuvasam

                                     For R1              : Mr.T.S.Arthanareeswaran
                                                          for Mr.C.Paraneedharan






https://www.mhc.tn.gov.in/judis/
                                                                     C.M.A.Nos.1763 and 1968 of 2020

                                         In C.M.A.No.1968 of 2020

                                         For Appellant     : Mr.T.S.Arthanareeswaran
                                                           for Mr.C.Paraneedharan

                                         For R2            : Mr.J.Michael Visuvasam

                                           COMMON JUDGMENT

This matter is heard through “Video-conferencing”.

C.M.A.No.1763 of 2020 is filed by the Insurance Company against the

award dated 17.02.2020 made in M.C.O.P.No.71 of 2017 on the file of the

Motor Accidents Claims Tribunal, Special Sub-Court, Erode.

C.M.A.No.1968 of 2020 is filed by the claimant for enhancement of

compensation granted by the Tribunal in the award dated 17.02.2020 made in

M.C.O.P.No.71 of 2017 on the file of the Motor Accidents Claims Tribunal,

Special Sub-Court, Erode.

2.Both the appeals arise out of the same accident and same award and

hence, they are disposed of by this common judgment. Parties in these

appeals are referred to by their respective ranks in the claim petition for the

sake of convenience.

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

3.The claimant filed M.C.O.P.No.71 of 2017 on the file of the Motor

Accidents Claims Tribunal, Special Sub-Court, Erode, claiming a sum of

Rs.10,00,000/- as compensation for the injuries sustained by him in the

accident that took place on 25.01.2016.

4.According to the claimant, on the date of accident i.e., on 25.01.2016

at about 8.00 a.m., while he was travelling as a pillion rider in Bajaj Discover

motorcycle bearing Registration No.TN-37 AU 5339 in Paruvachi to

Thalavaipettai road near Naarapalayam bus stop from North to South

direction at left side in front of Sinraj house, the 3rd respondent drove the bus

belonging to the 1st respondent from South to North direction in a rash and

negligent manner, hit against the claimant and caused the accident. In the

accident, the claimant sustained grievous injuries all over the body.

Therefore, the claimant has filed the above claim petition claiming

compensation against the respondents 1 to 3, who are owner, insurer and

driver of the bus respectively.

5.The respondents 1 and 3, owner and driver of the bus, remained

exparte before the Tribunal.

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

6.The 2nd respondent/Insurance Company insurer of the bus filed

counter statement denying the averments made by the claimant and stated that

the driver of the bus was not responsible for the accident. There is variance

between the allegations made in F.I.R. and in the claim petition with regard to

manner of the accident. The rider of the motorcycle did not possess driving

license and does not know how to ride the motorcycle at the time of accident.

The rider of the motorcycle alone rode the motorcycle in a rash and negligent

manner with high speed, hit back side of the bus, which was halted for the

stop, sustained simple injuries and invited the accident. The Police after

investigation registered the case against the rider of the motorcycle and

thereafter, closed the case as 'mistake of fact'. The rider of the motorcycle was

not made as party to the proceedings. Hence, the claim petition is bad for

non-joinder of necessary party. Therefore, the 2nd respondent/Insurance

Company is not liable to pay any compensation to the claimant. The 2nd

respondent/Insurance Company has also denied the age, avocation, income

and nature of injuries sustained by the claimant. In any event, the

compensation claimed by the claimant is excessive and prayed for dismissal

of the claim petition.

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

7.Before the Tribunal, the claimant examined himself as P.W.1,

Dr.M.S.V.Kumar was examined as P.W.2 and 12 documents were marked as

Exs.P1 to P12. The 2nd respondent/Insurance Company examined one

Mr.Krishnan, the Investigation Officer as R.W.1 and one Mr.Thyaneswaran,

Official of the Insurance Company as R.W.2 and marked five documents as

Exs.R1 to R5.

8.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident has occurred due to rash and negligent

driving by the 3rd respondent, the driver of the bus belonging to the 1st

respondent and directed the 2nd respondent/Insurance Company being insurer

of the said bus to pay a sum of Rs.3,01,000/- as compensation to the claimant.

9.Against the said award dated 17.02.2020 made in M.C.O.P.No.71 of

2017, the 2nd respondent/Insurance Company has come out with

C.M.A.No.1763 of 2020 challenging the liability as well as quantum of

compensation. Not being satisfied with the amounts awarded by the Tribunal,

the claimant has come out with C.M.A.No.1968 of 2020 seeking

enhancement of compensation.

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

10.The learned counsel appearing for the 2nd respondent/Insurance

Company contended that the accident occurred, while the rider of the

motorcycle came in a rash and negligent manner and dashed on the back side

of the stationary school bus. In F.I.R., the 3rd respondent, the driver of the bus

was wrongly shown as accused. The Police after investigation filed charge

sheet only against the rider of the motorcycle. The 2nd respondent/Insurance

Company filed charge sheet and marked the same as Ex.R4 and proved

negligence on the part of the rider of the motorcycle. The 2nd respondent

examined Investigation Officer as R.W.1. The Tribunal failed to consider the

oral and documentary evidence let in by the 2nd respondent/Insurance

Company and the damages caused to the vehicle. The learned counsel further

contended that the claimant was riding the motorcycle at the time of accident

and in connivance with the 3rd respondent, they have stated that the claimant

was riding as a pillion rider. The Tribunal without properly appreciating the

evidence let in by the 2nd respondent/Insurance Company mechanically stated

that there is no rebuttal evidence to the evidence of P.W.1 let in by the

Insurance Company. The claimant has not produced any disability certificate

to show that he suffered disability. The Tribunal erroneously granted a sum of

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

Rs.60,000/- towards disability. The amounts granted by the Tribunal towards

pain and suffering and loss of earning are excessive and prayed for setting

aside the award of the Tribunal and for allowing the appeal filed by the 2nd

respondent/Insurance Company.

11.The learned counsel appearing for the claimant contended that the

accident occurred, while the claimant was riding as a pillion rider in the

motorcycle, the 3rd respondent, the driver of the bus belonging to the 1st

respondent drove the bus from opposite direction in a rash and negligent

manner, hit against the claimant's motorcycle and caused injuries to the

claimant. F.I.R. was registered only against the driver of the bus. The Police

without properly investigating the matter filed charge sheet against the rider

of the motorcycle. The Tribunal considering the materials placed before it,

rightly held that the accident has occurred only due to negligence on the part

of the driver of the bus. The claimant was aged 52 years at the time of

accident, he was working as a painter and was earning a sum of Rs.20,000/-

per month. In the accident, he suffered injuries and fracture. He has taken

treatment as in-patient in Erode Emergency Care Hospital from 25.01.2016 to

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

05.02.2016. He underwent surgery and plate was fixed in the right femur.

After discharge from the hospital, the claimant could not do the work as he

was doing earlier and was taking treatment till filing of the appeal. The

claimant has spent a sum of Rs.1,06,666/- towards medical expenses and filed

documents to prove the treatment taken. The amounts granted by the Tribunal

towards loss of earning, extra nourishment, attendant charges and

transportation charges are meagre. The Tribunal has not granted any amount

towards future medical expenses and prayed for dismissal of the appeal filed

by the Insurance Company and for enhancement of compensation.

12.Heard the learned counsel appearing for the 2nd

respondent/Insurance Company as well as the learned counsel appearing for

the claimant and perused the entire materials on record.

13.It is the case of the claimant that while he was travelling as a pillion

rider in a Bajaj Discover motorcycle bearing Registration No.TN-37 AU 5339

in Paruvachi to Thalavaipettai road near Naarapalayam bus stop from North

to South direction, the 3rd respondent drove the bus belonging to the 1st

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

respondent in a rash and negligent manner in the opposite direction, hit

against the motorcycle, in which the claimant travelled as a pillion rider and

caused the accident. In the accident, the claimant sustained injuries and

suffered fracture. He has taken treatment as in-patient in Erode Emergency

Care Hospital. To prove the same, he filed F.I.R. and other medical records.

On the other hand, it is the case of the 2nd respondent/Insurance Company that

while the rider of the motorcycle was riding the motorcycle in a rash and

negligent manner, dashed against the stationary school bus and caused the

accident. The rider of the motorcycle did not possess driving license at the

time of accident. To substantiate their contention, the 2nd

respondent/Insurance Company examined Investigation Officer as R.W.1.

From the records, it is seen that R.W.1 has admitted that the bus belonging to

the 1st respondent was stationed at a curve contrary to the traffic rules, but he

denied the suggestion that the accident has occurred only due to the bus

stationed at a curve. He deposed that the charge sheet was filed against the

rider of the motorcycle and subsequently, the case was closed as 'mistake of

fact'. The Tribunal did not accept the evidence of R.W.1 as he has not

produced any materials to show that the claimant was examined during

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

investigation. R.W.1 has not deposed the name of the persons whom he

enquired to come to the conclusion that the accident has occurred only due to

negligence on the part of the rider of the motorcycle. Further, in the appeal

filed by the 2nd respondent/Insurance Company, the 2nd respondent has raised

ground that at the time of accident, the claimant was only riding the

motorcycle and with connivance of the 3rd respondent, falsely stated that the

claimant was a pillion rider. This stand was not taken by the 2 nd

respondent/Insurance Company in the counter statement filed and has also

not let in any evidence to prove that the claimant was the rider of the

motorcycle. The Tribunal considering the entire materials held that the

accident has occurred only due to negligence on the part of the 3rd respondent,

the driver of the bus. There is no error in the said finding of the Tribunal

warranting interference by this Court.

14.As far as quantum of compensation is concerned, the claimant

contended that he was suffered injuries and fracture and has taken treatment

as in-patient in Erode Emergency Care Hospital from 25.01.2016 to

05.02.2016. To prove the same, the claimant filed Ex.P4/wound certificate,

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

Ex.P5/discharge summary and Ex.P6/medical bills. The claimant has not filed

any disability certificate and has not examined any Doctor to show that he

suffered disability. The Tribunal considering the nature of injuries from

medical records and evidence of P.W.1, awarded a sum of Rs.60,000/-

towards disability. In the absence of any document with regard to disability,

the compensation granted by the Tribunal towards disability is not correct, the

same is liable to be set aside and is hereby set aside. The claimant has

claimed that he was working as a painter and was earning a sum of

Rs.20,000/- per month. He failed to prove the same. The Tribunal fixed a sum

of Rs.8,000/- per month as notional income of the claimant. The accident is of

the year 2016. The amount fixed by the Tribunal is meagre. Hence, a sum of

Rs.13,000/- is fixed as monthly income of the claimant. The Tribunal granted

compensation towards loss of earning for six months. Thus, the compensation

awarded by the Tribunal towards loss of earning is modified to Rs.78,000/-

(Rs.13,000/- X 6). The appellant has not produced any document to prove

that he is still taking treatment and therefore, he is not entitled to any

compensation towards future medical expenses. The amounts awarded by the

Tribunal under all other heads are just and reasonable and the same are

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

hereby confirmed. Thus, the compensation awarded by the Tribunal is

modified as follows:

S.No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of earning 48,000 78,000 Enhanced
2. Transportation 8,000 8,000 Confirmed
3. Extra 8,000 8,000 Confirmed
nourishment
4. Attendant 8,000 8,000 Confirmed
charges
5. Damage to 2,000 2,000 Confirmed
clothes
6. Medical 1,07,000 1,07,000 Confirmed
expenses
7. Pain and 60,000 60,000 Confirmed
suffering
8. Permanent 60,000 - Set aside
disability and
loss of earning
power
Total 3,01,000 2,71,000 Reduced by
Rs.30,000/-

15.In the result, C.M.A.No.1763 of 2020 filed by the 2nd

respondent/Insurance Company is partly allowed and C.M.A.No.1968 of

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1763 and 1968 of 2020

2020 filed by the claimant is dismissed and the compensation of

Rs.3,01,000/- awarded by the Tribunal is hereby reduced to Rs.2,71,000/-

together with interest at the rate of 7.5% per annum from the date of petition

till the date of deposit. The 2nd respondent/Insurance Company is directed to

deposit the award amount now determined by this Court along with interest

and costs within a period of six weeks from the date of receipt of a copy of

this judgment. On such deposit, the claimant is permitted to withdraw the

entire award amount along with interest and costs, after adjusting the amount

if any, already withdrawn. The 2nd respondent/Insurance Company is