Madras High Court
Duraimurugan vs Asokan on 29 January, 2021
C.M.A.(MD)No.953 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A.(MD)No.953 of 2011
Duraimurugan ... Appellant/
Claimant
versus
1. Asokan
2. The Manager,
Sriram General Insurance Company,
No.E8, RIICO Industrial Area,
Sita Pura, Jaipur City,
Rajasthan State – 3022022.
3. Selvaraj ... Respondents/
(R1 and R3 were set ex parte before Respondents
the Tribunal)
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decreetal order dated
16.03.2011 made in M.C.O.P.No.259 of 2009 on the file of the Motor Accident
Claims Tribunal (Additional District Judge / FTC-II), Pattukottai.
For Appellant : Mr.S.Deenadhayalan
for M/s.C.Vakeeswaran
For Respondents : Mr.V.Sakthivel for R2
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C.M.A.(MD)No.953 of 2011
JUDGMENT
This appeal is directed against the award passed by the Motor
Accident Claims Tribunal (FTC-II), Pattukottai in M.C.O.P.No.259 of 2009
dated 16.03.2011.
2. The appellant is the claimant in M.C.O.P.No.259 of 2009.
According to him, on 07.12.2008, he was proceeding to Madukkur in a Two-
wheeler, from west to east direction, at that time, a lorry, bearing
Reg.No.TN01Q 8015, which is owned by the 3rd respondent, coming from the
opposite direction in a rash and negligent manner, hit against the motorcycle.
Due to which, the rider and pillion-rider were thrown away and sustained
fracture and injuries. Immediately, they were taken to the Government
Hospital, Pattukottai. After providing first aid treatment, they were admitted
to Vinodhagan Hospital, Thanjavur, where, the claimant took treatment as in-
patient from 07.12.2008 to 03.01.2009 and during that period, a surgery was
performed on his right leg and a rod was also fixed. Though the claimant
sought compensation of Rs.15,00,000/-, the Tribunal has arrived at a
compensation of Rs.3,54,543/- and after deducting 25% towards contributory
negligence on the part of the claimant, awarded a compensation of
Rs.2,65,907/- with interest at 7.5% p.a. Challenging the award, the present
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C.M.A.(MD)No.953 of 2011
appeal has been filed.
3. Mr.S.Deenadhayalan, learned counsel appearing for the appellant
submitted that fixing 25% of contributory negligence on the part of the
claimant is contrary to law. It is also contended that the Tribunal has failed to
appreciate the evidence of P.W.1 in proper perspective and mechanically, fixed
the negligence on the part of the claimant.
4. Per contra, Mr.V.Sakthivel, learned counsel appearing for the
Insurance Company submitted that the Tribunal, after analysing the evidence
adduced by the claimant, has rightly come to the conclusion that the claimant
also contributed negligence to the accident and therefore, no interference is
required in this matter. It is further contended that the accident took place in
the year 2008 and while awarding compensation, the Tribunal has wrongly
adopted Rs.3,000/- per percentage of disability and arrived at the
compensation of Rs.1,50,000/- under the head of disability.
5. Heard the submissions on both sides and perused the materials
available on record.
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C.M.A.(MD)No.953 of 2011
6. In the instant case, the injured/claimant was examined as P.W.1,
wherein, he has narrated the manner of accident. In support of his oral
evidence, he produced Ex.P1-First Information Report, Ex.P14-Certified copy
of the Judgment in STC No.1037/09. A perusal of Ex.P1 and Ex.P14 would
reveal that in a criminal case registered against the driver of the lorry, he
pleaded guilty and paid the fine amount. It is an admitted fact that the
Insurance Company has not let in any evidence to show that it is a case of head
on collision and the claimant also contributed negligence to the accident.
7. A perusal of the Judgment of the Tribunal shows that the
Tribunal, on the sole ground that the claimant has not produced his driving
licence, came to the conclusion that he also contributed negligence to the
accident and fixed the negligence at the ratio of 75% : 25%.
8. In my considered view, the finding on negligence, fixing 25%
contributory negligence on the part of the claimant, cannot be countenanced
and hence, it is set aside.
9. As rightly contended by the learned counsel for the Insurance
Company, in the case of injury, this Court is adopting Rs.2,000/- per
percentage of disability. But, the Tribunal, while awarding compensation, has
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C.M.A.(MD)No.953 of 2011
applied Rs.3,000/- per percentage of disability. Hence, it has to be reduced.
Further, it is proved before the Tribunal that the claimant sustained 50% of
permanent disability, for which, the Tribunal awarded Rs.1,50,000/- as
compensation. Therefore, by applying Rs.2,000/- per percentage of disability,
the claimant would be entitled to Rs.1,00,000/- (Rs.2,000/- x 50%) as
compensation under the head of disability. In respect of other heads, the award
of the Tribunal is confirmed. Accordingly, the amount awarded by the
Tribunal is re-calculated and modified as under:-
Transport Expenses - Rs. 18,100/-
Nutrition - Rs. 5,000/-
Medical Expenses - Rs. 1,31,443/-
Pain and sufferings - Rs. 50,000/-
Disability - Rs. 1,00,000/-
____________
Total - Rs. 3,04,543/-
____________
Rounded off - Rs. 3,04,540/-
10. In the result, the Civil Miscellaneous Appeal is partly allowed,
by modifying the award dated 16.03.2011 passed by the Motor Accident
Claims Tribunal (Additional District Judge / FTC-II), Pattukottai in
M.C.O.P.No.259 of 2009.
11. The Insurance Company is directed to deposit the compensation
amount as determined by this Court in this appeal with accrued interest and
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C.M.A.(MD)No.953 of 2011
costs, less the amount already deposited, if any, within a period of eight weeks
from the date of receipt of a copy of this order. On such deposit being made,
the claimant/appellant is permitted to withdraw the same, by making necessary
application before the Tribunal. No costs.
29.01.2021
Index : Yes / No
Internet : Yes / No
ogy
To
1. The Motor Accident Claims Tribunal
(Additional District Judge / FTC-II),
Pattukottai.
http://www.judis.nic.in
C.M.A.(MD)No.953 of 2011
K.KALYANASUNDARAM, J.
ogy
C.M.A.(MD)No.953 of 2011
29.01.2021
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