Madras High Court
Rajesh Kumar vs S.Natarajan on 25 January, 2021
C.M.A.No.63 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.63 of 2021
Rajesh Kumar .. Appellant
Vs.
1.S.Natarajan
2.United India Insurance Co. Ltd.
21, Raja Annamalai Road
Purasawakkam, Chennai-600 084. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 01.11.2018
made in M.C.O.P.No.76 of 2009 on the file of Motor Accident Claims
Tribunal, VI Small Causes Court, Chennai.
For Appellant : Mr.K.Varadha Kamaraj
For R2 : Mr.M.J.Vijayaraaghavan
1/14
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C.M.A.No.63 of 2021
JUDGMENT
This matter is heard through “Video-Conferencing”.
The Civil Miscellaneous Appeal is filed challenging the portion of the
award fixing 30% contributory negligence on the part of the appellant as well
as for enhancement of compensation granted by the Tribunal in the award
dated 01.11.2018 made in M.C.O.P.No.76 of 2009 on the file of Motor
Accident Claims Tribunal, VI Small Causes Court, Chennai.
2.By consent of both the learned counsel appearing for the appellant
and the 2nd respondent/Insurance Company, the appeal is taken up for final
disposal at the stage of admission itself.
3.The appellant is claimant in M.C.O.P.No.76 of 2009 on the file of
Motor Accident Claims Tribunal, VI Small Causes Court, Chennai. 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 05.09.2008.
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C.M.A.No.63 of 2021
4.According to the appellant, on the date of accident, i.e., on
05.09.2008 at about 19.00 hours, while the appellant was riding his
motorcycle and entering the SICOL Distribox Limited, SICOL Container
Company, Goundenpalayam, the driver of the container lorry belonging to the
1st respondent, drove the same in a rash and negligent manner, suddenly took
the container lorry in a reverse direction without giving any signal, knocked
down the appellant's motorcycle 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.
5.The 1st respondent, owner of the container lorry, remained exparte
before the Tribunal.
6.The 2nd respondent/Insurance Company being insurer of the container
lorry filed counter statement denying the averments made by the appellant
and stated that the appellant has to prove that the accident has occurred due to
rash and negligent act of the driver of the container lorry belonging to the 1 st
respondent and there was a valid policy. The 1 st respondent has not furnished
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C.M.A.No.63 of 2021
the details of accident, driver and vehicular particulars and policy date.
Without proof, the 2nd respondent/Insurance Company is not liable to
indemnify the 1st respondent. The 2nd respondent has also denied the age,
income, disability 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.
7.Before the Tribunal, the appellant examined himself as P.W.1,
Dr.Thiayagarajan was examined as P.W.2 and marked 10 documents as
Exs.P1 to P10. The 2nd respondent/Insurance Company examined one
Mr.Suresh, Admin Officer of the Insurance Company as R.W.1 and marked
six documents as Exs.R1 to R6.
8.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 70% contributory
negligence on the part of the driver of the lorry and fixed 30% contributory
negligence on the part of the appellant as he did not possess valid driving
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C.M.A.No.63 of 2021
license at the time of accident, awarded a sum of Rs.3,75,637/- as
compensation to the appellant and directed the 2nd respondent/Insurance
Company being insurer of the lorry to pay a sum of Rs.2,63,000/- being 70%
of the compensation to the appellant.
9.The appellant has come out with the present appeal challenging the
portion of the award fixing 30% contributory negligence on the part of the
appellant as well as for enhancement of compensation.
10.The learned counsel appearing for the appellant contended that in
the accident, the appellant sustained grievous injuries, took treatment as in-
patient for 23 days on two different spells and underwent five surgeries. To
prove the nature of injuries and treatment taken, the appellant examined the
Doctor as P.W.2. P.W.2/Doctor after examining the appellant, certified that the
appellant suffered 65% disability. The Tribunal ought to have accepted the
disability assessed by P.W.2/Doctor considering the nature of injuries
sustained by the appellant. The appellant was working as a Supervisor in
SICOL Distribox Limited and was earning a sum of Rs.10,000/- per month.
The Tribunal erroneously fixed only a meagre sum of Rs.6,000/- per month.
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C.M.A.No.63 of 2021
Due to the injuries sustained in the accident, the appellant could not do the
work as he was doing as Supervisor. The Tribunal ought to have granted
compensation for loss of earning power. The learned counsel appearing for
the appellant further contended that the appellant filed Ex.P7/Estimation for
future medical expenses for Rs.75,000/- and the Tribunal granted only a sum
of Rs.30,000/-. The amounts granted by the Tribunal under different heads are
meagre. The Tribunal erroneously fixed 30% negligence on the appellant on
the ground that the appellant did not possess valid driving license at the time
of accident. The Tribunal ought to have fixed entire negligence on the driver
of the container lorry belonging to the 1st respondent and prayed for setting
aside 30% negligence fixed on the appellant and for enhancement of
compensation.
11.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that the appellant did not possess
driving license at the time of accident and without knowing how to drive the
motorcycle, rode the motorcycle and caused the accident. The Tribunal ought
to have fixed entire negligent on the appellant. P.W.2/Doctor is stock witness.
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C.M.A.No.63 of 2021
The Tribunal considering the entire materials, reduced percentage of
disability assessed by P.W.2/Doctor and granted compensation by adopting
percentage method. The total compensation awarded by the Tribunal under
different heads are not meagre. The appellant has not made out any case for
setting aside the contributory negligence fixed on him and for enhancement
of compensation and prayed for dismissal of the appeal.
12.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.
13.It is the case of the appellant that while he was riding his
motorcycle bearing Registration No.TN20-A-3155 and entering the SICOL
Distribox Limited (container company), a container lorry bearing Registration
No.TAC-5427 driven by its driver in a rash and negligent manner, suddenly
took the container lorry in a reverse direction without any signal, dashed on
the motorcycle and caused the accident. In the accident, the appellant suffered
grievous injuries. He has taken treatment as in-patient in the hospital for 23
days and underwent five surgeries. He filed claim petition claiming
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C.M.A.No.63 of 2021
compensation for the injuries. To prove the accident and injuries, the
appellant examined himself as P.W.1 and marked F.I.R. as Ex.P1. The
appellant has also examined the Doctor as P.W.2, who deposed about the
nature of injuries. 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 he is
responsible for the accident as he did not possess driving license at the time
of accident. To prove their contention, the 2nd respondent examined their
Admin Officer as R.W.1 and marked Motor Vehicle Inspector's Reports of
both the lorry and motorcycle as Exs.R3 and R4 respectively. The 2nd
respondent also marked the notice sent through the Advocate to the appellant
and the 1st respondent, owner of the lorry to produce the driving license. The
Tribunal considering the evidence of appellant as P.W.1, F.I.R. and failure on
the part of the 2nd respondent to examine the driver of the container lorry or
any eye-witness, held that the accident occurred only due to negligence of the
driver of the container lorry. Having held so, the Tribunal fixed 30%
contributory negligence on the part of the appellant as he did not possess
driving license at the time of accident. 30% contributory negligence fixed by
the Tribunal on the appellant is excessive.
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C.M.A.No.63 of 2021
14. It is the case of the appellant that he was working as a Supervisor in
SICOL Distribox Limited and was earning a sum of Rs.10,000/- per month.
It is not the case of the appellant before the Tribunal or before this Court that
he possessed driving license at the time of accident. The appellant holding a
responsible post as Supervisor in the company ought to have obtained driving
license to ride his motorcycle and for violation of statutory provision, some
contributory negligence has to be fixed on the appellant. Considering the
above materials, 30% contributory negligence fixed on the appellant is
modified and 20% contributory negligence is fixed on the appellant. Thus, the
2nd respondent/Insurance Company is liable to pay 80% of the compensation
awarded.
15.As far as quantum of compensation awarded by the Tribunal is
concerned, it is the case of the appellant that he examined the Doctor as P.W.2
and marked Exs.P2 to P10 to prove the nature of injuries, treatment taken and
disability suffered by him. The Tribunal considering the evidence of
P.W.2/Doctor, disability certificate and judgments relied on by the counsel for
the parties, held that the appellant has not proved that he suffered functional
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C.M.A.No.63 of 2021
disability and lost his earning power. The appellant has also not stated in the
present appeal that he lost his job or resigned or his salary was reduced. In
view of the same, the appellant is not entitled to compensation by adopting
multiplier method. P.W.2/Doctor after examining the appellant, certified that
the appellant suffered 65% disability. P.W.2/Doctor examined the appellant
after six years of the accident. He is not the treated Doctor and he has not
filed any work sheet along with disability certificate. The injuries sustained
by the appellant are not scheduled injuries. The appellant has not appeared
before the Medical Board. In view of the same, the Tribunal reduced the
percentage of disability to 50% and granted compensation by adopting
percentage method by awarding a sum of Rs.3,000/- per percentage of
disability. The Tribunal has given valid reason for reducing the percentage of
disability. In view of the same, the percentage of disability reduced by the
Tribunal is not interfered with.
15(i) The appellant has contended that he required further treatment
and filed Ex.P7/Estimation for future medical expenses claiming a sum of
Rs.75,000/- towards future medical expenses. He has not examined the author
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C.M.A.No.63 of 2021
of Ex.P7. In view of the same, the Tribunal did not accept Ex.P7 and granted
a sum of Rs.30,000/- towards future medical expenses, which is proper.
15(ii) The appellant claimed that he was working as a Supervisor in
SICOL Distribox Limited and was earning a sum of Rs.10,000/- per month.
The Tribunal fixed a sum of Rs.6,000/- as monthly income of the appellant,
which is meagre. The accident is of the year 2008 and hence, a sum of
Rs.9,000/- per month is fixed as notional income of the appellant. The
Tribunal granted a sum of Rs.24,000/- towards loss of income for four
months. Due to the injuries, surgery and treatment taken, the appellant would
not have worked atleast for a period of six months. Thus, the compensation
awarded by the Tribunal towards loss of income is modified to Rs.54,000/-
(Rs.9,000/- X 6). The amounts granted by the Tribunal towards attendant
charges and loss of amenities are meagre and hence, the same are hereby
enhanced to Rs.12,000/- and Rs.30,000/- respectively. The amounts awarded
by the Tribunal under all other heads are just and reasonable and hence, the
same are hereby confirmed. Thus, the compensation awarded by the Tribunal
is modified as follows:
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C.M.A.No.63 of 2021
S.No Description Amount awarded by Amount Award
Tribunal awarded by this confirmed or
(Rs) Court enhanced or
(Rs) granted or
reduced
1. Disability 1,50,000 1,50,000 Confirmed
2. Pain and 75,000 75,000 Confirmed
suffering
3. Extra 30,000 30,000 Confirmed
nourishment
4. Transportation 10,000 10,000 Confirmed
5. Damage to 1,000 1,000 Confirmed
clothes
6. Attendant 6,900 12,000 Enhanced
charges
7. Medical 28,737 28,737 Confirmed
expenses
8. Future medical 30,000 30,000 Confirmed
expenses
9. Loss of income 24,000 54,000 Enhanced
10. Loss of 20,000 30,000 Enhanced
amenities
Total 3,75,637 4,20,737
70% of the 2,62,945.90 -
award amount rounded off to Enhanced
2,63,000 by
80% of the 3,36,589.60 Rs.73,600/-
award amount rounded off to (Rs.3,36,600/
3,36,600 -
Rs.2,63,000)
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C.M.A.No.63 of 2021
16.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.3,75,637/- is hereby
enhanced to Rs.4,20,737/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. It is made clear that
the appellant is not entitled for any interest for the delay period on the amount
of Rs.73,600/- enhanced by this Court as per the order of this Court dated
06.01.2021 made in C.M.P.No.14593 of 2020 in C.M.A.SR.No.95101 of
2020. The 2nd respondent/Insurance Company is directed to deposit a sum of
Rs.3,36,600/- being 80% of 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. 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
kj
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C.M.A.No.63 of 2021
V.M.VELUMANI, J.,
kj
To
1.VI Judge
Motor Accident Claims Tribunal
Small Causes Court, Chennai.
2.The Section Officer
V.R.Section
High Court, Chennai.
C.M.A.No.63 of 2021
25.01.2021
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