Madras High Court
United India Insurance Company ... vs S.Dharunkumar on 27 January, 2021
C.M.A.No.79 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.79 of 2021
and
C.M.P.No.589 of 2021
United India Insurance Company Limited,
178, Dr.Nanjappa Road,
Opposite to V.O.C. Park,
Coimbatore – 641 018. .. Appellant
Vs.
1.S.Dharunkumar
2.B.Ahamed Batcha
3.R.Gunaseelan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
19.10.2019 made in M.C.O.P.No.416 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Coimbatore.
For Appellant : Mr.A.Dhiraviyanathan
For R1 : Mr.P.Ravi Shankar Rao
for Mr.L.Mouli
1/12
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C.M.A.No.79 of 2021
JUDGMENT
The matter is heard through “Video-Conferencing”.
2.By consent of both the learned counsel appearing for the appellant as
well as the learned counsel appearing for the caveator/1st respondent, this
Civil Miscellaneous Appeal is taken up for final disposal at the admission
stage itself.
3.This Civil Miscellaneous Appeal has been filed against the award
dated 19.10.2019 made in M.C.O.P.No.416 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Coimbatore.
4.The appellant is the 3rd respondent in M.C.O.P.No.416 of 2017 on the
file of the Motor Accidents Claims Tribunal, Special Sub Court, Coimbatore.
The 1st respondent filed the said claim petition, claiming a sum of
Rs.20,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 09.02.2017.
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C.M.A.No.79 of 2021
5.According to 1st respondent, on 09.02.2017 at about 11.25 hours,
while he was riding in a motorcycle bearing Registration No. TN 38 BR 4964
along with the claimant in M.C.O.P.No.596 of 2017 as pillion rider from
West to East direction on Coimbatore – Trichy Road, opposite to Singanallur
ESI Hospital, near Thai Nursery, the driver of the Tata Ace vehicle bearing
Registration No.TN 66 K 3396 who was proceeding in front of the
motorcycle rode by the 1st respondent, drove the same in a rash and negligent
manner and without giving any signal or indication, suddenly turned to the
left side of the road and dashed against the motorcycle rode by the 1st
respondent and caused the accident. In the accident, the 1st respondent's left
hand cut below the shoulder and fell down separately from his body and also
sustained grievous injuries all over the body. Therefore, the 1 st respondent
filed the said claim petition claiming a sum of Rs.20,00,000/- as
compensation for the injuries sustained by him against the respondents 2, 3
and appellant-Insurance Company, being the driver, owner and insurer of the
Tata Ace respectively.
6.The respondents 2 and 3, driver and owner of the Tata Ace remained
exparte before the Tribunal.
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C.M.A.No.79 of 2021
7.The appellant-Insurance Company, being the insurer of the Tata Ace
filed counter statement and denied all the averments made by the 1st
respondent. According to the appellant, the accident did not occur as alleged
by the 1st respondent. The 1st respondent has to prove that the 3rd respondent's
Tata Ace was having valid insurance policy and also the 2 nd respondent/driver
of the Tata Ace was possessing valid driving license at the time of accident.
The cheque bearing No.598716 dated 21.09.2016 issued by the 3rd
respondent-owner of the Tata Ace for a sum of Rs.18,591/- drawn on IOB
Bank towards payment of insurance premium for the Insurance Policy
bearing No.1716013116P108170321/0 was returned by the Drawee Bank for
want of CTS cheque. Therefore, the insurance policy indicated in the receipt
No.10117160116108404103 dated 21.09.2016 was canceled for
non-realization of amount. Therefore, in such cicumstances, only the
respondents 2 and 3, being the driver and owner of the Tata Ace respectively
alone are liable to pay compensation and the appellant is not liable to pay any
compensation to the 1st respondent. The 1st respondent also contributed
negligence to the accident and hence, contributory negligence has to be fixed
on the part of the 1st respondent. The appellant denied the age, avocation,
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C.M.A.No.79 of 2021
income, nature of injuries and treatment taken by the 1 st respondent. In any
event, the quantum of compensation claimed by the 1st respondent is highly
excessive and prayed for dismissal of the claim petition.
8.Before the Tribunal, the 1st respondent examined himself as P.W.1
and the father of the claimant in M.C.O.P.No.596 of 2017 was examined as
P.W.2 and 11 documents were marked as Exs.P1 to P11. On behalf of the
appellant-Insurance Company, one J.Paul Amirtharaj was examined as R.W.1
and 4 documents were marked as Exs.R1 to R4.
9.The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occurred only due to rash and negligent
driving by the driver of the Tata Ace belonging to 3rd respondent and directed
the appellant to pay a sum of Rs.8,92,831/- as compensation to the 1 st
respondent at the first instance and recover the same from the 3rd respondent.
10.Against the said award dated 19.10.2019 made in M.C.O.P.No.416
of 2017, the appellant has come out with the present appeal.
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C.M.A.No.79 of 2021
11.The learned counsel appearing for the appellant contended that the
cheque bearing No.598716 dated 21.09.2016 for a sum of Rs.18,591/- drawn
on IOB Bank issued by the 3rd respondent for payment of insurance premium
for his Tata Ace was returned by the Drawee Bank. As per the terms and
conditions of the policy, the policy issued by the appellant was canceled. The
appellant examined their official as R.W.1 and marked 4 documents as
Exs.R1 to R4 and proved the cancellation of policy. The Tribunal without
considering the defence taken in the counter statement by the appellant and
the evidence of R.W.1, erroneously ordered pay and recovery. The amounts
awarded by the Tribunal for pain and sufferings and loss of amenities are
excessive. The total compensation awarded by the Tribunal under different
heads are excessive and prayed for setting aside the award passed by the
Tribunal.
12.Per contra, the learned counsel appearing for the caveator/1st
respondent contended that 1st respondent has proved that accident has
occurred only due to rash and negligent driving by the 2nd respondent-driver
of the Tata Ace belonging to 3rd respondent by letting in oral and
documentary evidence. The Tribunal considering the fact that the Tata Ace
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C.M.A.No.79 of 2021
belonging to 3rd respondent was insured with appellant on the date of
accident, directed the appellant to pay the compensation at the first instance
and recover the same from the 3rd respondent. The policy issued by the
appellant was in force on the date of accident. The appellant has not proved
that policy issued by the appellant was canceled and has given intimation to
the owner and concerned RTO. The Tribunal considering the nature of
injuries, fracture and treatment taken by the 1st respondent, awarded
compensation under different heads which are not excessive. The Tribunal
considering the entire materials on record has awarded a sum of Rs.8,92,831/-
as compensation to the 1st respondent, which is not excessive and prayed for
dismissal of the appeal.
13.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the caveator/1st respondent and perused the
entire materials on record.
14.From the materials available on record, it is seen that 1 st respondent
claimed compensation for the injuries sustained by him in the accident that
occurred on 09.02.2017 due to the rash and negligent driving by the 2nd
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C.M.A.No.79 of 2021
respondent-driver of the Tata Ace belonging to 3rd respondent. The Tribunal
considering the oral and documentary evidence, held that accident has
occurred due to rash and negligent driving by 2nd respondent and considering
the nature of injuries, awarded a sum of Rs.8,92,831/- as compensation to the
1st respondent under different heads. The Tribunal considering the judgments
of the Hon'ble Apex Court, ordered pay and recovery. It is the case of the
appellant that cheque dated 21.09.2016 issued by the 3rd respondent for
payment of insurance premium was returned and as per the terms and
conditions of the policy, policy issued by the appellant was canceled and
appellant is not liable to pay any compensation to the 1st respondent. To prove
their case, the appellant examined their official as R.W.1 and marked Xerox
copy of the cheque as Ex.R1, Xerox copy of the cheque deposit slip as Ex.R2,
Xerox copy of returned memo as Ex.R3 and Insurance letter as Ex.R4. From
the counter statement filed by the appellant, it is seen that appellant has not
furnished any details of date of receipt, date of cancellation, date of
intimation to 3rd respondent-owner of the Tata Ace and concerned RTO. From
Exs.R1 to R4 it is seen that appellant has not filed any proof for having sent
letter to the 3rd respondent and RTO and has not filed any proof for having
served on the 3rd respondent. When the appellant has failed to prove the
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C.M.A.No.79 of 2021
cancellation of policy and intimation to the owner of the vehicle, the 3rd
respondent herein before the date of accident, the appellant cannot be
exonerated from its liability. The Tribunal considering the judgment of the
Hon'ble Apex Court has ordered pay and recovery. There is no error in the
said finding of the Tribunal ordering pay and recovery.
15.As far as quantum of compensation is concerned, the 1 st respondent
has contended that his left hand cut below the shoulder and fell down
separately from his body and also sustained grievous injuries all over the
body. To prove the same, he filed Ex.P3/wound certificate, Ex.P7/discharge
summary, Ex.P8/medical bills. Ex.P7/discharge summary would show that he
has taken treatment as inpatient for 13 days from 09.02.2017 to 21.02.2017.
The 1st respondent has not produced any disability certificate to show that due
to the injuries sustained in the accident, he suffered disability. The 1st
respondent has also not examined any Doctor to prove the nature of injuries
and fracture. The Tribunal considering Ex.P3/wound certificate, held that 1st
respondent suffered three fractures and granted a sum of Rs.75,000/- towards
grievous injuries for the three fractures. In addition to that the Tribunal has
awarded a sum of Rs.1,00,000/- for loss of amenities and Rs.2,00,000/- for
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C.M.A.No.79 of 2021
pain and sufferings. The 1st respondent has not filed any disability certificate
and not examined any Doctor to prove the injuries. Considering the entire
materials on record, the amounts awarded by the Tribunal towards pain and
sufferings and loss of amenities are excessive and the same are reduced to
Rs.25,000/- each. 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. Loss of income 28,000/- 28,000/- Confirmed
2. Pain and sufferings 2,00,000/- 25,000/- Reduced
3. Loss of amenities 1,00,000/- 25,000/- Reduced
4. Medical expenses 4,64,831/- 4,64,831/- Confirmed
5. Grievous injuries 75,000/- 75,000/- Confirmed
6. Transportation 10,000/- 10,000/- Confirmed
7. Extra nourishment 10,000/- 10,000/- Confirmed
8. Damages to clothes 5,000/- 5,000/- Confirmed
Total Rs.8,92,831/- Rs.6,42,831/- Reduced by
Rs.2,50,000/-
16.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.8,92,831/- is hereby reduced
to Rs.6,42,831/- together with interest at the rate of 7.5% per annum from the
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C.M.A.No.79 of 2021
date of petition till the date of deposit. The appellant-Insurance Company is
directed to deposit the modified 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.416 of 2017 on the file of the Motor Accidents
Claims Tribunal, Special Sub Court, Coimbatore, at the first instance and
recover the same from the 3rd respondent-owner of Tata Ace. On such
deposit, the 1st respondent 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. The appellant-Insurance Company is permitted to withdraw the
excess amount lying in the credit of M.C.O.P.No.416 of 2017, if the entire
award amount has been already deposited by them. Consequently the
connected Miscellaneous Petition is closed. No costs.
27.01.2021
krk
Index : Yes / No
Internet : Yes / No
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C.M.A.No.79 of 2021
V.M.VELUMANI, J.
krk
To
1.The Special Subordinate Judge,
Motor Accidents Claims Tribunal,
Coimbatore.
2.The Section Officer,
VR Section,
High Court,
Madras.
C.M.A.No.79 of 2021
27.01.2021
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