Madras High Court

Sathiyaraj vs M/S.Amr Energy Resources on 11 January, 2021

                                                                         C.M.A.No.2545 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 11.01.2021

                                                     CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                              C.M.A.No.2545 of 2019

                   Sathiyaraj                                                 .. Appellant

                                                       Vs.

                   1.M/s.AMR Energy Resources
                     Pvt. Ltd.
                   No.86-A, Abhiramapuram South street
                   Chennai-600 018.
                   (R1 remained exparte before the
                   Tribunal and hence, notice to R1 is dispensed with)

                   2.The Divisional Manager
                   The Oriental Insurance Co. Ltd.
                   Spencer towers, IV floor
                   No.770/A, Anna salai
                   Chennai                                                    .. Respondents


                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the

                   Motor Vehicles Act, 1988, against the judgment and decree dated 08.04.2019

                   made in M.C.O.P.No.455 of 2016 on the file of Motor Accident Claims

                   Tribunal, Chief Judicial Magistrate's Court, Perambalur.

                   1/13


https://www.mhc.tn.gov.in/judis/
                                                                           C.M.A.No.2545 of 2019



                                         For Appellant      : Mr.S.Kamadevan

                                         For R2             : Mr.M.J.Vijayaraaghavan


                                                     JUDGMENT

This matter is heard through “Video-Conferencing”.

The Civil Miscellaneous Appeal is filed challenging the portion of the

award fixing 50% contributory negligence on the part of the appellant as well

as for enhancement of compensation granted by the Tribunal in the award

dated 08.04.2019 made in M.C.O.P.No.455 of 2016 on the file of Motor

Accident Claims Tribunal, Chief Judicial Magistrate's Court, Perambalur.

2.The appellant is claimant in M.C.O.P.No.455 of 2016 on the file of

Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court,

Perambalur. He filed the said claim petition claiming a sum of Rs.7,00,000/-

as compensation for the injuries sustained by him in the accident that took

place on 05.01.2016.

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3.According to the appellant, on the date of accident, i.e., on

05.01.2016 at about 12.15 p.m., while he was riding the two wheeler on Karai

Pirivu Road – Kolakanatham Road from West to East direction, near

Mallappillai Kovil curve, the driver of the Bolero car belonging to the 1st

respondent which was coming from East to West direction, drove the same

in a rash and negligent manner, instead of proceeding his extreme left side,

came right side, dashed against the two wheeler driven by the appellant and

caused the accident. In the accident, the appellant sustained grievous injuries

all over the body and therefore, he filed the above claim petition claiming

compensation as against the respondents.

4.The 1st respondent, owner of the car remained exparte before the

Tribunal.

5.The 2nd respondent/Insurance Company being insurer of the car filed

counter statement denying the averments made by the appellant and stated

that the accident has occurred only due to rash and negligent riding by the

appellant. The accident did not occur due to negligent driving by the driver

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of the car belonging to the 1st respondent. The driver of the car belonging to

the 1st respondent drove the same cautiously and the appellant all of a sudden

entered into the main road from the left side to right side without noticing the

1st respondent's car and collided with the car. The accident has occurred due

to own fault of the appellant. A false case has been foisted against the driver

of the car. The owner and insurer of the two wheeler were not made as

parties to the claim petition and hence, the claim petition is bad for non-

joinder of necessary parties. The appellant and the driver of the car belonging

to the 1st respondent did not possess driving license and the two wheeler was

not insured at the time of accident. Therefore, the 2nd respondent/Insurance

Company is not liable to pay any compensation to the appellant. The 2nd

respondent/Insurance Company has also denied the age, avocation, income,

disability and injuries sustained by the appellant. In any event, the

compensation claimed by the appellant is excessive and prayed for dismissal

of the claim petition as against the 2nd respondent.

6.The 2nd respondent/Insurance Company filed additional counter

statement stating that the accident has occurred only due to rash and negligent

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riding of the two wheeler by the appellant. The appellant is the tort-feasor.

The appellant alone rode the two wheeler in a rash and negligent manner,

dashed on the rear side of the car belonging to the 1st respondent and caused

the accident. This fact was revealed in the F.I.R. and the charge sheet was

filed against the appellant only. Therefore, the car belonging to the 1st

respondent was not at all responsible for the accident and the 2nd respondent

is not liable to pay any compensation to the appellant.

7.Before the Tribunal, the appellant examined himself as P.W.1 and

three documents were marked as Exs.P1 to P3. The 2nd respondent/Insurance

Company examined one Ms.Indra, Senior Assistant of Insurance Company as

R.W.1 and one Mr.S.Raja, Padalur Special Sub-Inspector of Police as R.W.2

and marked three documents as Exs.R1 to R3. The disability certificate issued

by the Medical Board was marked as Ex.C1.

8.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent riding by

both the appellant, the rider of two wheeler as well as the driver of the car

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belonging to the 1st respondent, fixed 50 : 50 contributory negligence on the

part of the appellant as well as the driver of the car belonging to the 1st

respondent respectively, awarded a sum of Rs.1,13,000/- as compensation to

the appellant and directed the 2nd respondent/Insurance Company to pay a

sum of Rs.56,500/- being 50% of the award amount as compensation to the

appellant.

9.The appellant has come out with the present appeal challenging the

portion of the award fixing 50% contributory negligence on the part of the

appellant as well as for enhancement of compensation.

10.The learned counsel appearing for the appellant contended that the

Tribunal erred in fixing 50% contributory negligence on the part of the

appellant. The appellant has deposed as P.W.1 about the manner of the

accident. The Tribunal erred in relying on F.I.R. and fixing negligence on the

appellant. The contents of F.I.R. cannot be the basis for fixing negligence.

The total compensation awarded by the Tribunal is meagre and prayed for

setting aside 50% of the negligence fixed on the part of the appellant and for

enhancement of compensation.

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11.Per contra, the learned counsel appearing for the 2nd

respondent/Insurance Company contended that the accident has occurred,

while the appellant was overtaking the bus going in front of him, dashed on

the right side of the bumper of the car and caused the accident. The appellant

alone rode the two wheeler in a rash and negligent manner and caused the

accident. The driver of the car was not responsible for the accident. The

accident has occurred only in the middle of the road and not on the left side

as alleged by the appellant. The Tribunal considering all the materials

especially the evidence of R.W.2 and rough sketch, rightly held that the

appellant also contributed negligence to the accident. In any event, the total

compensation awarded by the Tribunal is not meagre 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 2nd respondent/Insurance Company and

perused the entire materials on record.

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13.It is the contention of the appellant that while he was riding the two

wheeler, the driver of the car belonging to the 1st respondent drove the same

in a rash and negligent manner, came to the wrong side and dashed on the two

wheeler and caused the accident. The appellant examined himself as P.W.1

and deposed to that effect. On the other hand, it is the case of the 2 nd

respondent in the counter statement that while the rider of the car was going

cautiously following the rules, the appellant all of a sudden entered into the

main road from left side to right side without noticing the car, lost control and

collided with the car belonging to the 1st respondent. Hence, the appellant is

responsible for the accident. In the additional counter statement, the 2nd

respondent has stated that the appellant in a rash and negligent manner rode

the two wheeler and dashed on the rear side of the car. F.I.R. was registered

against the appellant, charge sheet was also laid against the appellant and

hence the 2nd respondent is not liable to pay compensation. The 2nd respondent

in support of their case, examined the Special Sub-Inspector of Police as

R.W.2 and marked the rough sketch as Ex.R2.

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14. From the materials on record, it is seen that R.W.2, Special Sub-

Inspector of Police in his evidence has stated that the accident occurred,

while the appellant overtook the omni bus and dashed on the right side

bumper of the car belonging to the 1st respondent. R.W.2 admitted that final

report was filed. Even though there are contradictions in the stand taken by

the 2nd respondent and evidence of R.W.2, the fact remains that the accident

has occurred in the middle of the road as per Ex.R2/rough sketch. The

appellant has not denied the rough sketch as fault and has not filed any

objection. The Tribunal considering the rough sketch, held that both the

appellant and the driver of the car belonging to the 1st respondent are equally

responsible and contributed to the accident and fixed 50% contributory

negligence on the part of the appellant. There is no error in the award fixing

contributory negligence on the part of the appellant.

15.As far as quantum of compensation is concerned, the Medical Board

after examining the appellant, certified that the appellant has suffered 20%

disability. The Tribunal accepted the disability certificate issued by the

Medical Board and awarded a sum of Rs.60,000/- (Rs.3,000/- X 20%)

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towards disability by awarding a sum of Rs.3,000/- per percentage of

disability. The accident is of the year 2016 and the amount awarded by the

Tribunal per percentage of disability is meagre. This Court by judgment dated

09.01.2020 made in C.M.A.No.4870 of 2020 in the case of M/s.IFFCO

TOKIO General Insurance Company Limited vs. Venkatesh and

another), fixed a sum of Rs.4,000/- per percentage of disability for the

accident occurred in the year 2014 & 2015 and a sum of Rs.5,000/- per

percentage of disability for the accident occurred from the year 2016

onwards, due to raise in cost of living. In the present case, the accident is of

the year 2016. In view of the same, a sum of Rs.5,000/- is awarded per

percentage of disability. Thus, the compensation awarded by the Tribunal

towards disability is hereby enhanced to Rs.1,00,000/- (Rs.5,000/- X 20%).

The amounts awarded by the Tribunal under all other heads are just and

reasonable and hence, the same are hereby confirmed. Thus, the

compensation awarded by the Tribunal is modified as follows:







https://www.mhc.tn.gov.in/judis/
                                                                            C.M.A.No.2545 of 2019

                    S.No           Description   Amount awarded        Amount           Award
                                                  by Tribunal        awarded by      confirmed or
                                                      (Rs)            this Court     enhanced or
                                                                         (Rs)         granted or
                                                                                       reduced
                   1.          Loss of income               18,000          18,000 Confirmed
                   2.          Disability                   60,000        1,00,000 Enhanced
                   3.          Transportation                5,000           5,000 Confirmed
                   4.          Pain and                     15,000          15,000 Confirmed
                               suffering
                   5.          Extra                        10,000          10,000 Confirmed
                               nourishment
                   6.          Attendant                     5,000           5,000 Confirmed
                               charges
                               Total                      1,13,000        1,53,000
                                                                                   Enhanced by
                               50% of the                   56,500          76,500 Rs.40,000/-
                               award amount

16. In the result, this Civil Miscellaneous Appeal is partly allowed and

the compensation awarded by the Tribunal at Rs.1,13,000/- is hereby

enhanced to Rs.1,53,000/- together with interest at the rate of 7.5% per

annum from the date of petition till the date of deposit. The 2nd respondent is

directed to deposit a sum of Rs.76,500/- being 50% of the award amount

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

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such deposit, the appellant is permitted to withdraw the award amount now

determined by this Court along with interest and costs, less the amount if any,

already withdrawn. No costs.

11.01.2021 Index : Yes / No kj