Madras High Court
R. Raja vs Ms.Tvl Jayam Bus Roadlines on 7 January, 2021
C.M.A. No.1989 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1989 of 2020
R. Raja .. Appellant
Vs.
1.Ms.TVL Jayam Bus Roadlines,
No.130A, Attur Road,
Rasipuram Taluk,
Namakkal 637 408.
2.United India Insurance Co. Ltd.,
104-A, Peramanur Main Road,
Peramanur,
Salem District 636 007. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 29.11.2019, made
in M.C.O.P. No.386 of 2019, on the file of the Special Sub Court No.2,
(Motor Accident Claims Tribunal) Salem.
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C.M.A. No.1989 of 2020
For Appellant : Mr.A.Sathishkumar
for M/s. C.Thangaraju
For Respondents : Mr.D.Bhaskaran (For R2)
JUDGMENT
The matter is heard through "Video Conferencing".
This appeal has been filed for enhancement of the compensation
granted by the Tribunal in the award dated 29.11.2019, made in M.C.O.P.
No.386 of 2019, on the file of the Special Sub Court No.2, (Motor Accident
Claims Tribunal) Salem.
2.The appellant filed M.C.O.P. No.386 of 2019, on the file of the
Special Sub Court No.2, (Motor Accident Claims Tribunal) Salem, claiming a
sum of Rs.20,00,000/- as compensation for the injuries sustained by him in
the accident that took place on 27.09.2018.
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C.M.A. No.1989 of 2020
3.According to the appellant, on the date of accident, he was traveling
as a passenger in Jayaram Private Bus bearing Registration No. TN-28-AL-
5279 belonging to the 1st respondent. At 5.30 pm, while crossing Attur Police
Station, near Sargam Thandavarayapuram Bus Stop, the driver of the said Bus
drove the same in a rash and negligent manner and without control, turned the
Bus in the turning. At that time, the appellant unable to hold the Bus, fell
down on the road and caused the accident. The accident occurred due to rash
and negligent driving by the Bus belonging to the 1st respondent. In the
accident, the appellant sustained grievous and multiple injuries. For the
injuries suffered by him, he has filed the claim petition, claiming
compensation against the respondents as owner and insurer of the said Bus.
4.The 1st respondent remained exparte before the Tribunal.
5.The 2nd respondent - Insurance Company filed counter statement and
denied all the averments made by the appellant. The 2nd respondent denied the
manner of the accident. According to the 2nd respondent, the appellant while
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C.M.A. No.1989 of 2020
traveling carelessly on the foot board of the Bus in a drunken mood, using the
cell phone, fell down and sustained injuries. The accident did not occur due
to rash and negligent driving by driver of the Bus belonging to the 1st
respondent. The 2nd respondent-Insurance Company is not liable to indemnify
the 1st respondent, as the appellant is tort-feasor. At the time of accident, the
alleged Bus was carrying excess number of passengers than the permitted
limit, in violation of policy condition and against the provision of the Motor
Vehicles Act. The claim petition is bad for non-joinder of driver of the Bus
involved in the accident. In any event, the appellant has to prove the nature of
injuries, treatment taken, disability suffered, his age, avocation and income,
to claim compensation. The total compensation claimed by the appellant is
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the appellant examined himself as P.W.1 and
examined Doctor as P.W.2 and marked 10 documents as Exs.P1 to P10. The
respondents did not let in any oral and documentary evidence.
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C.M.A. No.1989 of 2020
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 Bus belonging to the 1st respondent and directed the 2nd
respondent, as insurer of the said vehicle to pay a sum of Rs.10,19,333/- as
compensation to the appellant.
8.Not being satisfied with the amounts awarded by the Tribunal in the
award dated 29.11.2019, made in M.C.O.P. No.386 of 2019, the appellant has
come out with the present appeal.
9.The learned counsel appearing for the appellant submitted that at the
time of accident, the appellant was aged 29 years and was working as a
Driller in rig carriage and was earning a sum of Rs.12,000/- per month. In the
accident, he suffered multiple injuries and fractures. P.W.2 Doctor examined
the appellant and certified that the appellant suffered 40% disability and
issued disability certificate showing the defects as intellectual disability,
headache with memory loss on and off, swelling and pain over operated site
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C.M.A. No.1989 of 2020
and unable to lift heavy objects. The Tribunal ought to have calculated loss of
earning capacity and adopted multiplier method for awarding compensation.
The appellant has taken treatment as inpatient at Universal Hospital, Salem
from 29.09.2018 to 18.10.2018, for a period of 17 days. The amounts
awarded by the Tribunal for extra nourishment, pain and suffering,
transportation, attendant charges, loss of dress, loss of earning, loss of
amenities and future medical expenses and prayed for enhancement of
compensation.
10.Heard learned counsel appearing for the appellant as well as the 2nd
respondent-Insurance Company and perused the materials available on record.
11.From the materials on record, it is seen that it is the contention of the
appellant that due to the injuries sustained in the accident, he suffered fractures
and disability. P.W.2 Doctor examined the appellant and certified that the
appellant suffered 40% disability and issued disability certificate to that effect.
For the injuries sustained in the accident, he has taken treatment as inpatient at
Universal Hospital, Salem from 29.09.2018 to 18.10.2018, for a period of 17
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C.M.A. No.1989 of 2020
days. P.W.2 Doctor has deposed that the appellant suffered head ache and
difficulty in lifting objects. He has not deposed that the appellant suffered any
functional disability and loss of earning power. The Tribunal considering the
disability certificate and evidence of P.W.2 Doctor, held that the appellant has
not suffered any functional disability and awarded compensation by adopting
percentage method. The appellant has taken treatment as in-patient in
Hospital for 17 days. He has not produced any materials to show that he
requires treatment in future. In the absence of any materials, the Tribunal
excessively awarded a sum of Rs.2,00,000/- towards future medical expenses.
Further, the Tribunal has awarded a sum of Rs.1,00,000/- towards extra
nourishment, Rs.60,000/- towards loss of amenities and Rs.50,000/- towards
pain and suffering. Considering the entire materials on record, the total
compensation awarded by the Tribunal under different heads are excessive
and hence, the appellant is not entitled for any enhancement.
12.In the result, the appeal is dismissed and the amount awarded by the
Tribunal at Rs.10,19,333/- together with interest at the rate of 7.5% per
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C.M.A. No.1989 of 2020
annum from the date of petition till the date of deposit is confirmed. The 2nd
respondent is directed to deposit the award amount, along with interest and
costs, less the amount already deposited, within a period of six weeks from
the date of receipt of a copy of this judgment, to the credit of M.C.O.P.
No.386 of 2019. On such deposit, the appellant is permitted to withdraw the
award amount, along with interest and costs, after adjusting the amount, if
any already withdrawn, by filing necessary applications before the Tribunal.
No costs.
07.01.2021
Index : Yes / No
gsa
To
1.The II Special Subordinate Judge,
(Motor Accident Claims Tribunal),
Salem.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.1989 of 2020
V.M.VELUMANI, J.,
gsa
C.M.A.No.1989 of 2020
07.01.2021
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