Madras High Court
Vivekanandhan vs M.Thangaraju on 25 January, 2021
C.M.A.No.2011 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.2011 of 2020
Vivekanandhan .. Appellant
Vs.
1.M.Thangaraju
2.National Insurance Company Ltd.
Divisional Office – 1
LRN complex
Saradha college Road
Salem-7. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 27.02.2020
made in M.C.O.P.No.1647 of 2019 on the file of Motor Accident Claims
Tribunal, Special Sub Court No.2, Salem.
1/13
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C.M.A.No.2011 of 2020
For Appellant : Mr.K.Suryanarayanan
for Mr.M.Mohamed Riyaz
For R2 : Mrs.R.Sreevidhya
JUDGMENT
This matter is heard through “Video-Conferencing”.
The Civil Miscellaneous Appeal is filed challenging the portion of the
award fixing 20% contributory negligence on the part of the appellant as well
as for enhancement of compensation granted by the Tribunal in the award
dated 27.02.2020 made in M.C.O.P.No.1647 of 2019 on the file of Motor
Accident Claims Tribunal, Special Sub Court No.2, Salem.
2.The appellant is claimant in M.C.O.P.No.1647 of 2019 on the file of
Motor Accident Claims Tribunal, Special Sub Court No.2, Salem. He filed the
said claim petition claiming a sum of Rs.10,00,000/- as compensation for the
injuries sustained by him in the accident that took place on 14.02.2019.
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C.M.A.No.2011 of 2020
3.According to the appellant, on the date of accident, i.e., on
14.02.2019 at about 6.30 a.m., while the appellant was riding the motorcycle
from Odapalli to Aayakattur Main Road, near Vinayakar Temple, the driver of
the lorry belonging to the 1st respondent, which was coming from Aayakattur,
drove the lorry in a rash and negligent manner, dashed against the motorcycle
driven by the appellant and caused the accident. In the accident, the appellant
sustained grievous injuries and therefore, he filed the above claim petition
claiming compensation as against the respondents.
4.The 1st respondent, owner of the lorry remained exparte before the
Tribunal.
5.The 2nd respondent/Insurance Company insurer of the lorry filed
counter statement denying the averments made by the appellant and stated
that the driver of the lorry drove the same in a careful manner. The appellant,
who was coming in the opposite direction, alone rode the motorcycle in a
rash and negligent manner, hit against the lorry and invited the accident.
Therefore, the 2nd respondent/Insurance Company is not liable to pay any
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C.M.A.No.2011 of 2020
compensation to the appellant. The 2nd respondent/Insurance Company has
also denied the age, avocation, income and injuries sustained by the
appellant. In any event, the compensation claimed by the appellant is
excessive and prayed for dismissal of the claim petition as against the 2nd
respondent.
6.Before the Tribunal, the appellant examined himself as P.W.1 and 11
documents were marked as Exs.P1 to P11. The 2nd respondent/Insurance
Company did not let in any oral and documentary evidence. The disability
certificate issued by the 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, fixed 80%
contributory negligence on the part of the driver of the lorry and fixed 20%
contributory negligence on the part of the appellant as he did not possess
valid driving license at the time of accident, awarded a sum of Rs.2,26,222/-
as compensation to the appellant and directed the 2nd respondent/Insurance
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C.M.A.No.2011 of 2020
Company being insurer of the lorry to pay a sum of Rs.1,80,978/- being 80%
of the compensation to the appellant.
8.The appellant has come out with the present appeal challenging the
portion of the award fixing 20% contributory negligence on the part of him as
well as for enhancement of compensation.
9.The learned counsel appearing for the appellant contended that the
appellant was in possession of driving license at the time of accident, he
produced the same before the Tribunal and marked as Ex.P8. The Tribunal
without considering Ex.P8 erroneously held that the appellant did not possess
driving license at the time of accident and fixed 20% contributory negligence
on the part of the appellant. In the accident, the appellant suffered fracture on
his right leg, shoulder, chest and multiple injuries all over the body and has
taken treatment as in-patient. He was referred to Medical Board and the
Medical Board assessed that the appellant suffered 20% disability. The
Tribunal erroneously held that the appellant has not suffered any functional
disability. The method followed by the Tribunal is not based on the Motor
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C.M.A.No.2011 of 2020
Vehicles Act or judgment of the Hon'ble Apex Court. The Tribunal ought to
have adopted multiplier method for awarding compensation. The appellant
was working as a Safety Manager in Pallipalayam paper mills and was
earning a sum of Rs.15,747/- per month and proved the same by marking
Ex.P5/salary certificate. The Tribunal erroneously fixed monthly income of
the appellant at Rs.8,000/-. The amounts granted by the Tribunal towards pain
and suffering, loss of amenities, transportation, extra nourishment and
attendant charges are meagre and prayed for enhancement of compensation.
10.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that at the time of accident, the
appellant did not possess driving license. The appellant has admitted the same
in the cross-examination. The Tribunal rightly fixed 20% contributory
negligence on the part of the appellant. The appellant has not proved that he
suffered functional disability or lost his earning capacity. In the absence of
any evidence, the Tribunal rightly granted compensation by adopting
percentage method. The appellant failed to prove his income by examining
the author of Ex.P5. The notional income fixed by the Tribunal is not meagre.
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C.M.A.No.2011 of 2020
The total compensation awarded by the Tribunal under different heads 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 and perused the entire
materials on record.
12.It is the case of the appellant that while he was riding the
motorcycle, the driver of the lorry belonging to the 1st respondent drove the
same in a rash and negligent manner and dashed on the motorcycle in which
the appellant was riding and caused the accident. In the accident, the
appellant suffered injuries and filed claim petition claiming compensation for
the injuries. In support of his case, the appellant examined himself as P.W.1
and deposed as to that of the averments made in the claim petition. He
marked the F.I.R., which was registered against the driver of the lorry as
Ex.P1. On the other hand, it is the case of the 2nd respondent that the accident
has occurred only due to negligence of the appellant and therefore, the driver
of the lorry is not responsible for the accident. To substantiate their case, the
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C.M.A.No.2011 of 2020
2nd respondent did not examine the driver of the lorry or any eye-witness. In
the absence of any contra evidence to the evidence of P.W.1, F.I.R. and
considering the entire materials on record, the Tribunal held that the accident
has occurred only due to rash and negligent driving by the driver of the lorry.
Having held so, the Tribunal fixed 20% contributory negligence on the part of
the appellant on the ground that the appellant did not possess driving license
at the time of accident. From the award of the Tribunal, it is seen that the
appellant has produced his driving license and marked the driving license as
Ex.P8. The Tribunal without considering Ex.P8 erroneously held that the
appellant did not possess driving license at the time of accident and fixed
contributory negligence for not possessing driving license. The said
erroneous finding is liable to be set aside and is hereby set aside. The
appellant is entitled to entire compensation awarded.
13.As far as quantum of compensation is concerned, the appellant has
contended that in the accident, he suffered fracture on his right leg, shoulder,
chest and multiple injuries all over the body and has taken treatment as
in-patient in the hospital. He was referred to Medical Board and the Medical
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C.M.A.No.2011 of 2020
Board after examining the appellant assessed 20% disability. The appellant
has not let in any evidence to show that he suffered functional disability. It is
not the case of the appellant that he resigned his job or his income is reduced
due to the injuries. Hence, the appellant is not entitled to compensation by
adopting multiplier method. The Tribunal awarded a sum of Rs.3,000/- per
percentage of disability, which 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
the year 2019. In view of the same, a sum of Rs.5,000/- is awarded per
percentage of disability. Thus, the compensation awarded by the Tribunal
towards permanent disability is modified to Rs.1,00,000/- (20% X
Rs.5,000/-).
13(i) The appellant in the claim petition contended that he was working
as a Safety Manager in Pallipalayam paper mills and was earning a sum of
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C.M.A.No.2011 of 2020
Rs.40,000/- per month. In the grounds of appeal, the appellant has stated that
he was earning Rs.15,747/- per month and he produced Ex.P5/salary
certificate to show that he was earning Rs.15,263.25 per month. The Tribunal
did not accept Ex.P5 as the appellant did not examine author of the salary
certificate, fixed Rs.8,000/- per month as notional income of the appellant
and awarded a sum of Rs.48,000/- (Rs.8,000/- X 6 ) towards loss of income
for six months. The accident is of the year 2019 and the notional income
fixed by the Tribunal is meagre. Hence, a sum of Rs.15,000/- per month is
fixed as notional income of the appellant. Thus, the compensation awarded by
the Tribunal towards loss of income during treatment period is modified to
Rs.90,000/- (Rs.15,000/- X 6). The amounts awarded by the Tribunal towards
extra nourishment, attendant charges and damage to clothes are meagre and
hence, the same are hereby enhanced to Rs.25,000/-, Rs.10,000/- and
Rs.5,000/- respectively. The amounts awarded by the Tribunal under all
other heads are just and reasonable and hence, the same are hereby
confirmed.
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C.M.A.No.2011 of 2020
S.No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court enhanced or
(Rs) granted or
reduced
1. Permanent 60,000 1,00,000 Enhanced
disability
2. Pain and 25,000 25,000 Confirmed
suffering
3. Loss of 25,000 25,000 Confirmed
amenities
4. Medical bills 33,722 33,722 Confirmed
5. Loss of income 48,000 90,000 Enhanced
6. Transportation 13,500 13,500 Confirmed
7. Extra 15,000 25,000 Enhanced
nourishment
8. Attendant 5,000 10,000 Enhanced
charges
9. Damage to 1,000 5,000 Enhanced
clothes
Total 2,26,222 3,27,222
Enhanced by
Rs.1,46,244/-
20% of the 1,80,978 (Rs.3,27,222/-
award amount -
Rs.1,80,978/-)
14.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.2,26,222/- is hereby
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C.M.A.No.2011 of 2020
enhanced to Rs.3,27,222/- 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 entire 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. 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. No costs.
25.01.2021
Index : Yes / No
Internet : Yes/ No
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To
1.The Special Subordinate Judge No.2
Motor Accident Claims Tribunal
Salem.
2.The Section Officer
V.R.Section,
High Court,
Chennai.
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C.M.A.No.2011 of 2020
V.M.VELUMANI,J.
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C.M.A.No.2011 of 2020
25.01.2021
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