Madras High Court
The Divisional Manager vs N.Mohan on 4 January, 2021
C.M.A.No.176 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.176 of 2019
and
C.M.P.No.841 of 2019
The Divisional Manager,
M/s. The New India Insurance Company Limited,
No.1, C.S.I. Complex, Anna Salai,
Vellore, Vellore District. .. Appellant
Vs.
1.N.Mohan
2.Joint Director,
Health Department,
Kanchipuram. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
03.08.2018 made in M.C.O.P.No.347 of 2016 on the file of the Motor
Accidents Claims Tribunal, Chief Judicial Magistrate Court, Vellore.
For Appellant : Mr.J.Michael Visuvasam
For R1 : Mr.M.Sivakumar
for Mr.C.Prabakaran
For R2 : Mr.Devnarenderan
Government Advocate (C.S)
1/12
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C.M.A.No.176 of 2019
JUDGMENT
The matter is heard through “Video-Conferencing”.
2.This Civil Miscellaneous Appeal has been filed against the award
dated 03.08.2018 made in M.C.O.P.No.347 of 2016 on the file of the Motor
Accidents Claims Tribunal, Chief Judicial Magistrate Court, Vellore.
3.The appellant is the 2nd respondent in M.C.O.P.No.347 of 2016 on
the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate
Court, Vellore. 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 23.11.2013.
4.According to 1st respondent, on 23.11.2013 at about 08.30 P.M.,
while he was riding his motorcycle on the extreme left side of the Katpadi –
Latheri Main Road near Venkatesapuram bus stop, the driver of the
Ambulance bearing Registration No.TN 21 G 0356 belonging to 2nd
respondent, who was driving the ambulance in a rash and negligent manner
from the opposite direction without blowing horn endangering public safety,
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C.M.A.No.176 of 2019
dashed against the motorcycle rode by the 1st respondent and caused the
accident. In the accident, the 1st respondent sustained multiple grievous
injuries and immediately he was admitted in the C.M.C. Hospital, Vellore.
Therefore, the 1st respondent filed the said claim petition claiming a sum of
Rs.20,00,000/- as compensation for the injuries sustained by him against the
2nd respondent and appellant-Insurance Company, being the owner and
insurer of the Ambulance respectively.
5.The 2nd respondent-owner of the Ambulance filed counter statement
and denied various averments made by the 1st respondent. According to 2nd
respondent, the driver of the Ambulance drove the same cautiously by
following the road traffic rules and the 1st respondent only rode his
motorcycle without seeing the oncoming Ambulance, suddenly turned to his
right side, dashed against the Ambulance and invited the accident. The driver
of the Ambulance was possessing valid driving license and the 2 nd
respondent's Ambulance was insured with the appellant at the time of
accident. Hence, the appellant is only liable to pay the compensation to the 1st
respondent if any amount was awarded by the Tribunal. The owner of the
motorcycle rode by the 1st respondent has to be impleaded as necessary party
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C.M.A.No.176 of 2019
in the claim petition. In any event, the quantum of compensation claimed by
the 1st respondent is exorbitant and prayed for dismissal of the claim petition.
6.The appellant-Insurance Company, being the insurer of the
Ambulance belonging to 2nd respondent filed counter statement and denied all
the averments made by the 1st respondent. The appellant denied the manner of
accident as alleged by the 1st respondent. According to the appellant, the
driver of the 2nd respondent's Ambulance drove the same by following the
road traffic rules and only the 1st respondent, who was under the influence of
alcohol, rode his motorcycle in a rash and negligent manner, suddenly turned
the motorcycle to his right side, dashed against the Ambulance and invited
the accident. The Criminal Case registered against the driver of the 2nd
respondent's Ambulance was closed as Mistake of Fact. Hence, the appellant
is not liable to pay any compensation to the 1st respondent. The appellant
denied the age, avocation, income, nature of injuries and treatment taken by
the 1st respondent. In any event, the quantum of compensation claimed by the
1st respondent is highly excessive and prayed for dismissal of the claim
petition.
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C.M.A.No.176 of 2019
7.Before the Tribunal, the 1st respondent examined himself as P.W.1
and 10 documents were marked as Exs.P1 to P10. On behalf of the 2nd
respondent and appellant, one M.Baskaran was examined as R.W.1 and one
document was marked as Ex.R1. Further, Medical Inspection Report was
marked as Ex.C1.
8.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 Ambulance belonging to 2nd respondent and
directed the appellant to pay a sum of Rs.4,53,784/- as compensation to the 1st
respondent.
9.Against the said award dated 03.08.2018 made in M.C.O.P.No.347 of
2016, the appellant has come out with the present appeal.
10.The learned counsel appearing for the appellant contended that the
accident has occurred only due to the negligence on the part of the 1 st
respondent who while coming from a bye-lane to busy highways without
minding traffic suddenly turned to the right. The appellant examined their
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C.M.A.No.176 of 2019
official as R.W.1 and proved the negligence on the part of the 1st respondent.
The Tribunal erred in not considering the evidence of R.W.1 that 1st
respondent was under the influence of alcohol and 1st respondent is
responsible for the accident. In Ex.P4/wound certificate it was mentioned that
1st respondent was under the influence of alcohol. The Tribunal failed to see
that Ambulance was coming with sounding horn carrying chest pain patient,
following the Rules of Road Regulations. The Tribunal failed to appreciate
that F.I.R. registered against the driver of the Ambulance was closed as
mistake of fact and the same was mentioned in the counter statement filed by
the appellant. The 1st respondent has not raised any objections to the same.
The Tribunal erroneously accepted the evidence of 1st respondent in the
absence of any material evidence and fastened the liability on the appellant.
The 1st respondent failed to prove the avocation and income. The Tribunal
erroneously fixed a sum of Rs.9,000/- per month as notional income of the 1st
respondent and awarded a sum of Rs.36,000/- towards loss of income. The
total compensation awarded by the Tribunal is excessive and prayed for
setting aside the award of the Tribunal.
11.Per contra, the learned counsel appearing for the 1st respondent
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C.M.A.No.176 of 2019
contended that accident has occurred only due to rash and negligent driving
by the driver of the Ambulance belonging to 2nd respondent. The 1st
respondent has proved the negligence by examining himself as P.W.1 and by
marking documents. The reliance of the appellant on the final report is not the
credential to fix negligence. The Tribunal considering the evidence of 1st
respondent and materials placed before it, rightly held that accident has
occurred only due to the negligence on the part of the driver of the
Ambulance belonging to 2nd respondent and considering the nature of injuries
and disability assessed by Medical Board, treatment taken, awarded
compensation under different heads which are not excessive and prayed for
dismissal of the appeal.
12.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 1st respondent and perused the entire
materials on record.
13.It is the case of the 1st respondent that while the 1st respondent was
riding his motorcycle, the driver of the Ambulance belonging to 2 nd
respondent drove the Ambulance in a high speed without blowing horn in a
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C.M.A.No.176 of 2019
rash and negligent manner, dashed against the 1st respondent and caused the
accident. In the accident, the 1st respondent sustained multiple injuries and
has taken treatment as inpatient. In support of his case, he examined himself
as P.W.1 and marked F.I.R., which was registered against the driver of the
Ambulance as Ex.P1. On the other hand, it is the case of the appellant that
accident has occurred only due to the negligence on the part of the 1 st
respondent who under the influence of alcohol suddenly came from a
bye-lane to main road and dashed on the Ambulance which was coming
following the rules by sounding horn from Latheri to Katpadi carrying chest
pain patient. In support of his case, the appellant examined its official as
R.W.1. The Tribunal considering the oral and documentary evidence let in
before it, fixed negligence on the part of the driver of the Ambulance. From
the award of the Tribunal, it is seen that the Tribunal has not considered the
evidence of R.W.1 and has not given any finding with regard to evidence of
R.W.1. From the award of the Tribunal it is seen that the brother of the 1 st
respondent has given complaint against the driver of the Ambulance based on
which F.I.R. was registered. In the complaint, it was stated that while the 1st
respondent was riding his motorcycle from North and turned towards West,
accident has occurred. This shows that accident has occurred on the Western
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C.M.A.No.176 of 2019
side of the road which is right hand side of the 1st respondent. The Tribunal
also has not considered the case of the appellant that Ambulance was driven
by the driver sounding horn and 1st respondent coming from bye-lane to Main
Road, dashed against the Ambulance without minding the traffic in the
Highways. The appellant also contended that the F.I.R. registered against the
driver of the Ambulance was closed as mistake of fact.
14.The learned counsel appearing for the appellant also relied on the
final report. From the records it is seen that final report was not filed before
the concerned Magistrate. At the same time, it has to be taken note that
appellant has mentioned the same in the counter statement filed in the
M.C.O.P. The 1st respondent has not disputed that final report was filed as
mistake of fact. The 1st respondent has filed Ex.P4/wound certificate. The
learned counsel appearing for the appellant relied on Ex.P4/wound certificate
and submitted that 1st respondent was under the influence of alcohol and
caused the accident. The Tribunal rejected the said contention as no blood
test was conducted to ascertain the presence of alcohol content in the blood.
There is no error in the said finding. At the same time, considering the entire
materials, especially the fact that 1st respondent came from bye-lane from
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C.M.A.No.176 of 2019
North to turning towards Western side in the Highways, this Court is of the
considered view that 1st respondent also contributed negligence to the
accident. Considering the type of vehicles involved in the accident, 60%
negligence is fixed on the part of the driver of the Ambulance belonging to
2nd respondent and 40% negligence is fixed on the part of the 1st respondent.
As insurer of the Ambulance belonging to 2nd respondent, the appellant is
liable to pay only 60% of the compensation awarded.
15.As far as quantum of compensation is concerned, the Tribunal
considering the nature of injuries, treatment taken and disability assessed by
Medical Board, awarded compensation under different heads, which are not
excessive warranting interference by this court.
16.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.4,53,784/- together with
interest and costs is hereby confirmed. The appellant-Insurance Company is
directed to deposit 60% of the award amount, (i.e., Rs.2,72,270/-) 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 six
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C.M.A.No.176 of 2019
weeks from the date of receipt of a copy of this judgment, to the credit of
M.C.O.P.No.347 of 2016 on the file of the Motor Accidents Claims Tribunal,
Chief Judicial Magistrate Court, Vellore. On such deposit, the 1st respondent
is permitted to withdraw the award amount 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.347 of 2016, if
the entire award amount has been already deposited by them. Consequently
the connected Miscellaneous Petition is closed. No costs.
04.01.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Chief Judicial Magistrate,
Motor Accidents Claims Tribunal,
Vellore.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.176 of 2019
V.M.VELUMANI, J.
krk
C.M.A.No.176 of 2019
04.01.2021
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