Madras High Court
The Divisional Manager vs Iyyappan on 6 January, 2021
C.M.A.No.2939 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.2939 of 2019
and C.M.P.No.15575 of 2019
The Divisional Manager
M/s.IFFCO-TOKIO General Insurance
Co. Ltd.
100 feet road, Mudaliarpet
Puducherry. ... Appellant
Vs.
1.Iyyappan
2.Ponnaiyan ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 17.09.2018 made
in M.C.O.P.No.463 of 2011 on the file of Motor Accident Claims Tribunal,
Additional Sub Court, Puducherry.
For Appellant : Mr.S.Arunkumar
For Respondents : No appearance
JUDGMENT
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2939 of 2019
This matter is heard through “Video-Conferencing”.
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company challenging the award dated 17.09.2018 made
in M.C.O.P.No.463 of 2011 on the file of Motor Accident Claims Tribunal,
Additional Sub Court, Puducherry.
2.The appellant/Insurance Company is the 2nd respondent in
M.C.O.P.No.463 of 2011 on the file of Motor Accident Claims Tribunal,
Additional Sub Court, Puducherry. 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 09.12.2010.
3.According to the 1st respondent, on the date of accident i.e., on
09.12.2010, at 22.30 hours, while he was riding in his Hero Honda Splendor
motorcycle at Pondy – Villupuram Main Road, from East to West direction, in
the middle of the Ariyapalayam bridge, Villianur, the driver of the Mahindra
Max truck belonging to the 2nd respondent, who was coming in the opposite
direction, drove the same in a rash and negligent manner, dashed against the
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C.M.A.No.2939 of 2019
1st respondent and caused the accident. Due to the accident, the 1st respondent
sustained grievous injuries all over the body. Therefore, the 1st respondent has
filed the above claim petition claiming compensation against the 2nd
respondent and appellant.
4.The 2nd respondent, owner of the Mahindra max truck, remained
exparte before the Tribunal.
5.The appellant/Insurance Company, insurer of the Mahindra max truck
filed counter statement denying the averments made in the claim petition and
stated that the accident has occurred only due to rash and negligent riding of
the motorcycle by the 1st respondent. The said motorcycle alone collided with
the Mahindra max truck belonging to the 2nd respondent. As per the judgment
of the Hon'ble Apex Court, when there is a head on collision between two
vehicles, the drivers of both vehicles should be equally held responsible for
the accident. The owner and insurer of the motorcycle and driver of the
Mahindra max truck are not made as parties to the claim petition. Hence, the
claim petition is bad for non-joinder of necessary parties. Therefore, the
appellant/Insurance Company is not liable to pay any compensation to the 1st
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C.M.A.No.2939 of 2019
respondent. The appellant/Insurance Company has also denied the age,
avocation, income, disability and nature of injuries sustained by the 1st
respondent. In any event, the compensation claimed by the 1 st respondent is
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1
and eight documents were marked as Exs.P1 to P8. The appellant/Insurance
Company did not let in any oral and documentary evidence. The certificate
issued by the Medical Board was marked as Ex.C1.
7.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 Mahindra max truck belonging to the 2nd respondent and
directed the appellant/Insurance Company being insurer of the said Mahindra
max truck to pay a sum of Rs.13,40,000/- as compensation to the 1 st
respondent.
8.Against the said award dated 17.09.2018 made in M.C.O.P.No.463 of
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C.M.A.No.2939 of 2019
2011, the appellant/Insurance Company has come out with the present appeal
challenging the quantum of compensation awarded by the Tribunal.
9.The learned counsel appearing for the appellant/Insurance Company
contended that assessment of disability of the 1st respondent by the Medical
Board is without any basis and the same is not for the whole body and loss of
earning power. The disability certificate issued by the Medical Board reveals
that assessment was made on probability without any scientific reasoning.
The 1st respondent has failed to prove his avocation and income. In the
absence of any material evidence, the Tribunal fixed excess amount of
Rs.10,000/- per month as notional income of the 1 st respondent and fixed the
disability at 60% for loss of earning power. The amounts awarded by the
Tribunal towards pain and suffering and extra nourishment are excessive and
prayed for setting aside the award of the Tribunal.
10.Though notice was served on the respondents 1 and 2 and their
names are printed in the cause list, there is no representation for them either
in person or through counsel.
11.Heard the learned counsel appearing for the appellant/Insurance
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C.M.A.No.2939 of 2019
Company and perused the entire materials on record.
12.It is the contention of the learned counsel appearing for the
appellant that the Medical Board has not properly assessed the disability and
the disability of 60% is not for whole body of the 1st respondent and not
based on any scientific assessment. The Tribunal erred in accepting the
disability certificate issued by the Medical Board and fixed 60% disability for
loss of earning power. This contention is contrary to the materials on record.
In the accident, the 1st respondent suffered fracture in back bone, lacerated
injury in forehead, abrasions in right ankle, left foot and multiple injuries all
over the body. He was referred to Medical Board and the Medical Board after
examining the 1st respondent, certified that he suffered 60% disability. The 1st
respondent as P.W.1 deposed that due to the injuries in head and spinal cord,
he could not continue his work as driver. The appellant has not let in any
evidence to disprove the evidence of the 1st respondent as P.W.1 that he was a
driver and disability certificate issued by the Medical Board. In the absence
of any contra evidence by the appellant, the Tribunal accepted the disability
certificate issued by the Medical Board and evidence of 1st respondent as
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C.M.A.No.2939 of 2019
P.W.1, adopted multiplier method for awarding compensation towards future
income.
13. According to the 1st respondent, he was aged 38 years at the time of
accident. As per the judgment of the Hon'ble Apex Court reported in 2009 (2)
TNMAC 1 SC Supreme Court (Sarla Verma vs. Delhi Transport
Corporation), the correct multiplier applicable is '15'. The Tribunal
erroneously applied multiplier '16'. The 1st respondent has taken treatment in
the hospital as in-patient from 10.12.2010 to 05.01.2011. The Tribunal has
not awarded any compensation towards loss of amenities and damage to
clothes and articles. In view of the above, the multiplier '16' instead of '15'
applied by the Tribunal is not interfered with. The 1st respondent contended
that he was working as a driver and was earning a sum of Rs.15,000/- per
month. In the absence of any material evidence with regard to avocation and
income, the Tribunal fixed a sum of Rs.10,000/- per month as notional
income of the 1st respondent. The accident is of the year 2010 and the
notional income fixed by the Tribunal is not excessive. The Tribunal after
considering all the materials on record, awarded compensation, which is not
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C.M.A.No.2939 of 2019
excessive warranting interference by this Court.
14.In the result, this Civil Miscellaneous Appeal is dismissed and the
sum of Rs.13,40,000/- awarded by the Tribunal as compensation to the 1st
respondent along with interest and costs is confirmed. The
appellant/Insurance Company is directed to deposit the entire amount
awarded by the Tribunal 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 1st respondent is permitted to
withdraw the amount awarded by the Tribunal along with interest and costs,
less the amount if any, already withdrawn. Consequently, connected
Miscellaneous Petition is closed. No costs.
06.01.2021
Index : Yes / No
kj
V.M.VELUMANI,J.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2939 of 2019
kj
To
1.The Additional Subordinate Judge
Motor Accident Claims Tribunal
Pudhucherry.
2.The Section Officer
VR Section
High Court
Madras.
C.M.A.No.2939 of 2019
and C.M.P.No.15575 of 2019
06.01.2021
https://www.mhc.tn.gov.in/judis/
