Madras High Court
Kathirvel vs R.Rajee on 27 January, 2021
C.M.A.No.2865 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
CMA. No.2865 of 2012
Kathirvel,
S/o Arumugam ... Appellant
..vs..
1.R.Rajee,
S/o Raja Gounder,
2.The New India Assurance Co. Ltd.,
Divisional Office, Premier Complex,
Five Roads, Salem-4. ... Respondent
Appeal filed under Section 173 of the Motor Vehicles Act,
1988, against the judgment and decree dated 03.10.2011 made in
M.C.O.P.No.62 of 2010, on the file of the Motor Accidents Claims
Tribunal (Chief Judicial Magistrate Court), Salem.
For Appellants : Mr.K.Kuppusamy
For Respondent No.2 : Mr.J.Chadran
For Respondent No.1 Given up
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1/8
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C.M.A.No.2865 of 2012
JUDGMENT
Dissatisfied with the judgment and decree, dated 3.10.2011,
passed by the tribunal awarding compensation of Rs.29,400/- along with
interest at the rate of 7.5% per annum, the claimant is before this Court for
enhancement of compensation.
2. It is is the case of the claimant/appellant herein that the
appellant met with an accident on 24.08.2005 at about 12.00 p.m., when
the appellant was riding a motorcycle bearing registration No.TN-45 Q 3583
and one Selvam was on pillion, at Saradha College road near Santham
complex, a motorcycle bearing registration No.TN-29 A 5211 driven by its
driver in a rash and negligent manner proceeding towards Asthampatti, hit
the appellant's motorcycle resulting in the appellant and the pillion rider
sustained fracture and multiple injuries. On complaint, case in Cr.No.414
of 2005 for the offence under Sec.279 and 337 of I.P.C. has been registered
by the Salem Traffic Police. The appellant filed a claim petitioner before
the tribunal, claiming compensation of Rs.3,00,000/- for the injuries
sustained by him.
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C.M.A.No.2865 of 2012
3. The Tribunal, based on the oral and documentary evidence Exs.P1
to P.8, has fixed the contributory negligence of 60% on the part of driver of
the motorcycle bearing registration No.TN-29 A 5211 and 40% on the part of
the appellant and awarded total compensation of Rs.49,000/- under various
heads. Out of Rs.49,000/-, the appellant is entitled for a sum of Rs.29,400/-
since contributory negligence of 40% fixed on the part of the appellant.
4. Heard the learned counsel appearing for the appellant/ claimant
and the learned counsel appearing for the second respondent/ Insurance
Company and perused the materials available on record.
5. The learned counsel for the appellant submitted that the tribunal
ought to have fixed the permanent disability at 36% instead of 25%. The
appellant has marked disability certificate Ex.P2 and Dr.Sreethar deposed
before the tribunal that he assessed the disability to the claimant at 36% .
The tribunal without any basis fixed the permanent disability at 25%.
Therefore the award passed by the tribunal is liable to be modified.
6. The learned counsel for the Insurance Company would submit that
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C.M.A.No.2865 of 2012
the appellant herein is the pillion rider of the motor bike bearing Reg.No.
TN-45-Q-3583 and the rider of the said motor bike driven the bike in a rash
and negligent manner and caused the accident and due to which, a criminal
case was also registered against him and charge sheet has also been filed.
Therefore, the insurance company is not liable to pay any amount and the
appellant herein being the pillion rider of the above said bike, is not
entitled to any compensation. Hence the appeal is liable to be dismissed.
7. Though the learned counsel for the appellant strongly objected the
contributory negligence fixed at 40% by the tribunal, from a perusal of Ex.1
to 6, it reveals that the appellant and rider of the motor bike bearing
Reg.No. TN45-Q-3583 is also responsible for the accident and the Special
Sub Inspector of Police/RW1 in his evidence deposed that a case in Crime
No.62/2010 has been registered against the appellant for his involvement in
the accident. It is mentioned in the Motor Inspection Report/Ex.P5 that the
front side of the bullet motor bike bearing Reg.No. TN-29-A-5211, which
was coming in the opposite direction was damaged, therefore it is clear
that the both the vehicles have dashed against each other. The tribunal by
considering the all these aspects and supporting documents and evidence
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C.M.A.No.2865 of 2012
has fixed the contributory negligence as against the appellant at 40% and
60% as against the 1st and 2nd respondents. This Court finds no error in
respect of contributory negligence fixed by the tribunal. The arguments
advanced by the learned counsel for the appellant against the contributory
negligence cannot be accepted, the same is confirmed.
8. Insofar as quantum of compensation is concerned, though the
appellant's involvement in the accident is proved, considering the
contributory negligence, this Court is of the view that it would be fair to
enhance the compensation to some extent by taking note of the injuries
sustained and the consequential expenses incurred by him. As per Ex.P2-
Wound Certificate, the appellant had taken treatment from 25.08.2005 to
01.09.2005 as inpatient and he sustained bone fracture on his left leg.
Ex.P2- Discharge summary issued by the Mohan Kumaramangalam Medical
College Hospital also reveal the said fact. Further as per Ex.P10- Disability
Certificate, the appellant had sustained 35% permanent disability.
Considering the nature of fracture and injuries sustained by the appellant,
this Court confirms the disability at 35% assessed by PW3/Dr.Sreethar and
by fixing Rs.1200/- per disability, compensation enhanced to Rs.42.000/- for
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C.M.A.No.2865 of 2012
Disabililty. Like wise the compensation awarded under the heads Medical
expenses, extra nourishment, transport expenses and pain and suffering are
enhanced. The sum awarded under the head loss of income is confirmed
and a sum of Rs.5,000/- is granted under the head loss of amenity.
Accordingly, this Court modifies the compensation under various heads as
follows;
Heads Compensation Compensation
awarded by modifiedby this
the Tribunal Court
Rs.
Disability (25 x Rs.1200) 30,000/- 42,000/-
(35x1200)
Pain and suffering 7,000/- 10000/-
Loss of income (one month) 4,000/- 4000/-
Medical expenses 3,000/- 6000/-
Extra Nourishment 3,000/- 10000/-
Transportation 2,000/- 5000/-
Loss of amenity -- 5000/-
Total 49,000/- 82,000/-
Since the contributory negligence is fixed at 40% on the appellant, he
is eligible for compensation only at 60%. Therefore, out of the total
enhanced compensation of Rs.82,000/-, the appellant is entitled for a sum
Rs.49,200/-.
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C.M.A.No.2865 of 2012
9. In the result, this Civil Miscellaneous Appeal is partly
allowed, by enhancing the total amount of compensation. The
appellant is entitled to withdraw a sum of Rs.49,200/- along with
interest at the rate of 7.5% per annum from the date of petition till
the date of deposit.
10. The 1st and 2nd respondents shall jointly and severally
deposit the enhanced compensation amount, as awarded by this
Court, along with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit, less the amount already
deposited, if any, within a period of eight weeks, from the date of
receipt of a copy of this judgment. No costs.
27.01.2021
Index : Yes/No
ak
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2865 of 2012
D.KRISHNAKUMAR, J.,
ak
To
1. The Motor Accidents Claims Tribunal
Chief Judicial Magistrate Court, Salem
2.The Section Officer,
V.R Section, High Court, Madras.
CMA.No.2865 of 2012
27.01.2021
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