Madras High Court
M. Rajendran vs P.R.Rajendran on 29 January, 2021
C.M.A.No.3129 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.01.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
CMA. No.3129 of 2012
M. Rajendran ... Appellant/Petitioner
..vs..
1.P.R.Rajendran
2.The New India Assurance Co., Ltd.,
No.46, Moore Street,
Chennai – 01. ... Respondents
(The 1st respondent exparte in lower court, hence notice may be dispensed
with )
Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the judgment and decree dated 19.08.2008 made in
M.C.O.P.No.966 of 2004, on the file of the Motor Accidents Claims
Tribunal, V Small Causes Court, Chennai.
For Appellant : Mr. K. Varadha Kamaraj
For Respondent No.1 : Notice unserved
For Respondent No.2 : Mr. G. Udaya Sankar
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1/10
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C.M.A.No.3129 of 2012
JUDGMENT
Dissatisfied with the judgment and decree, dated 19.08.2008,
passed by the Tribunal awarding compensation of Rs.1,67,000/- along
with interest at the rate of 7.5% per annum, the claimant/appellant is
before this Court for enhancement of compensation.
2. It is the case of the claimant/appellant herein that the appellant
met with an accident on 28.01.2004 at about 7.15 hours, when the
appellant was a pillion rider in a cycle, at Koladi Road, Chinnakoladi
Village, a lorry bearing registration No.TN-09 H 0700 was driven by its
driver in a rash and negligent manner, hit the appellant's cycle resulting in
the appellant/pillion rider sustaining grievous injuries. On complaint, a
case in Cr.No.16 of 2004 for the offence under Sections 279 and 332 II of
I.P.C. has been registered in the Thiruverkadu Police Station. The
appellant filed a claim petition before the Tribunal, claiming
compensation of Rs.4,00,000/- for the injuries sustained by him.
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C.M.A.No.3129 of 2012
3. The Tribunal, based on the oral and documentary evidence after
examining two witnesses as PW1 and PW2 and marking seven exhibits
as Exs.P1 to P7, has allowed the petition in part and awarded a sum of
Rs.1,67,000/- under various heads and the respondents are jointly and
severally ordered to deposit the said award amount with interest at 7.5%
per annum from the date of filing (11.02.2004) till the date of deposit
(excluding the period of dismissal for default, if any) with proportionate
costs in a month.
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 loss of earnings at Rs.72,000/- and
disability at Rs.78,000/-; Transportation Charges at Rs.10,000/-;
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C.M.A.No.3129 of 2012
Nutrition at Rs.10,000/- and medical expenses at Rs.1,00,000/-. The
appellant has marked disability certificate as Ex.P6 and medical bills as
Ex.P3 and X-ray as Ex.P7. PW2 has assessed the disability at 30%. The
Tribunal without any basis, awarded lesser compensation of
Rs.1,67,000/-. Therefore, the award passed by the Tribunal is liable to
be modified.
6. The learned counsel for the second respondent/Insurance
Company would submit that the appellant herein is the pillion rider of the
cycle. He further submitted that the accident took place on 28.01.2004
and the appellant being an in-patient with grievous injuries gave
complaint within a day shows that the appellant came with unclean hands
to this court. The rider of the lorry has driven the vehicle in a rash and
negligent manner and caused the accident, due to which, a criminal case
was also registered against him and charge sheet has also been filed. The
driver of the lorry is solely and personally liable to compensate the
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C.M.A.No.3129 of 2012
petitioner. Therefore, the Insurance Company is not liable to pay any
amount and the appellant herein being the pillion rider of the cycle, is not
entitled to any compensation. Hence, this appeal is liable to be dismissed.
7. From a perusal of Exs.P1 to P7, it reveals that the appellant and
the lorry bearing registration No.TN-09 H 0700 is also responsible for the
accident and a case has been registered in Thiruverkadu Police Station in
Cr.No.16 of 2004 for the offence under Sections 279 and 332 II of I.P.C.,
against the appellant for his involvement in the accident.
8. From the materials available on record, it is seen that the
appellant had claimed before the Tribunal that he was working as a
mason and was earning a sum of Rs.250/- a day. The appellant had failed
to produce the documents to substantiate the said contention. In the
absence of any material, the Tribunal has fixed a meagre amount as
notional income of the appellant. The accident is of the year 2004.
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C.M.A.No.3129 of 2012
9. 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-
Discharge summary, it is stated that the appellant has sustained multiple
ribs fracture on both sides, bilateral scapula fracture and bilateral
haemopneumo thorax. He had taken treatment in Billroth Hospital,
Chennai and still under treatment as outpatient. Ex.P2- Discharge
summary issued by Dr.K.J. Mathiazhagan also revealed the said fact.
Further as per Ex.P6 - Disability Certificate, the appellant had sustained
30% permanent disability. Considering the nature of fracture and injuries
sustained by the appellant, this Court confirms the disability at 30%
assessed by PW2/Dr.K.J.Mathiazhagan and by fixing Rs.1500/- per
disability, compensation enhanced to Rs.45.000/- for permanent
disability.
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C.M.A.No.3129 of 2012
10. Accordingly, this Court modifies the compensation under
various heads as follows:
S.No Description Amount Amount Award
awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted
1. Loss of Earning 30,000 30,000 Confirmed
2. Transportation 5,000 5,000 Confirmed
charges
3. Extra 5,000 10,000 Enhanced
Nourishment
3. Damage to 2,000 2,000 Confirmed
cycle
4. Medical 75,000 75,000 Confirmed
Expenses
5. Pain and 20,000 30,000 Enhanced
Sufferings
6. Permanent 30,000 45,000 Enhanced
Disability
Total Rs.1,67,000/- Rs.1,97,000/- Enhanced by
Rs.30,000/-
11. In the result, this Civil Miscellaneous Appeal is partly
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C.M.A.No.3129 of 2012
allowed. The compensation awarded by the Tribunal at Rs.1,67,000/- is
hereby enhanced to Rs.1,97,000/- (Rupees One Lakh Ninety Seven
Thousand Only) together with interest at the rate of 7.5% per annum
from the date of numbering the appeal till the date of deposit.
12. According to the learned counsel for the second
respondent/Insurance Company, the entire compensation amount passed
by the Tribunal was deposited before the Tribunal and the same was
withdrawn by the appellant. Further, he submitted that there is a delay in
filing an appeal. Therefore, the period of delay in filing the appeal has to
be excluded for payment of interest to the appellant. Such request of the
Insurance Company is accepted by this Court. Accordingly, the appellant
is entitled for interest from the date of claiming petition till the date of
realisation of the enhanced compensation amount. In other words, the
appellant is not entitled for interest for the period of delay in filing the
appeal till the date of numbering the appeal. No costs.
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C.M.A.No.3129 of 2012
13. The second respondent/Insurance Company shall 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 numbering the
appeal till the date of deposit, within a period of eight weeks, from the
date of receipt of a copy of this judgment. On such deposit being made,
the appellant is entitled to withdraw the same on filing an appropriate
application before the Tribunal. No costs.
29.01.2021
Index : Yes/No
Speaking / Non-speaking Judgment
gv
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C.M.A.No.3129 of 2012
D.KRISHNAKUMAR, J.,
gv
To
1. The Motor Accidents Claims Tribunal
V Small Causes Court, Chennai.
2.The Section Officer,
V.R Section, High Court,
Madras.
CMA.No.3129 of 2012
29.01.2021
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