Madras High Court
Jayaprakash vs Thangavel on 18 January, 2021
C.M.A. No.1944 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1944 of 2020
Jayaprakash .. Appellant
Vs.
1.Thangavel
2.National Insurance Company Ltd.,
73, Perundurai Road, Opposite Collector Office,
PB No.911, Erode District
Branch Office: Opp. New Bus Stand, Sankari. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 23.07.2020, made
in M.C.O.P. No.465 of 2012, on the file of the Sub Court, (Motor Accident
Claims Tribunal) Sankari.
For Appellant : Mr.T.S.Arthanareeswaran
for M/s.C.Paraneedharan
For Respondents : Mr.J.Chandran (For R2)
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C.M.A. No.1944 of 2020
JUDGMENT
The matter is heard through "Video Conferencing".
This appeal has been filed against the award of the Tribunal dated
23.07.2020, made in M.C.O.P. No.465 of 2012, on the file of the Sub Court,
(Motor Accident Claims Tribunal) Sankari.
2.The appellant filed M.C.O.P. No.465 of 2012, on the file of the Sub
Court, (Motor Accident Claims Tribunal) Sankari, claiming a sum of
Rs.20,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 06.05.2012.
3.According to the appellant, on the date of accident, at about 4.20
P.M., when he was walking on the mud portion at the left side of the road
near KSR College, the driver of a Car bearing bearing Registration No. TN-
37-AU-5005, belonging to the 1st respondent, drove the same in a rash and
negligent manner and dashed against the appellant and caused the accident.
The accident occurred due to rash and negligent driving by the driver of the
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C.M.A. No.1944 of 2020
Car belonging to the 1st respondent. In the accident the appellant suffered
multiple injuries and fractures. For the injuries suffered by him, he has filed
the claim petition, claiming compensation against the respondents as owner
and insurer of the said Car.
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. According to the 2 nd
respondent, accident occurred when the appellant negligently crossed the
road without minding oncoming vehicle and not due to rash and negligent
driving by driver of the Car, as alleged by the appellant. The 1st respondent
has permitted the driver to ply the Car without any valid driving license at the
time of accident. Hence, for violation of policy conditions, the 2nd respondent
is not liable to indemnify the 1st respondent for the injured in the accident. In
any event, the appellant has to prove his age, income and avocation, injuries
sustained in the accident, treatment taken for the same, to claim
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C.M.A. No.1944 of 2020
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
marked 14 documents as Exs.P1 to P14. The 2nd respondent did not let in any
oral and documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that accident occurred due to negligence of both the deceased
as well as the driver of the Car and fixed 10% contributory negligence on the
part of the deceased and 90% negligence on the driver of the Car. The
Tribunal awarded a sum of Rs.12,87,724/- and directed the respondents as
owner and insurer of the Car to jointly and severally pay a sum of
Rs.11,60,000/- being 90% of the award amount, as compensation to the
appellant.
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C.M.A. No.1944 of 2020
8.Challenging the 10% contributory negligence fixed on the deceased
and not being satisfied with the amounts granted by the award dated
23.07.2020, made in M.C.O.P. No.465 of 2012, the appellant has come out
with the present appeal.
9.The learned counsel appearing for the appellant contended that on the
date of accident, when the appellant was walking on the mud portion,
extreme left side of the road, the driver of the Car belonging to the 1st
respondent drove the same in a rash and negligent manner and dashed on the
appellant and caused the accident. The Tribunal erroneously fixed 10%
contributory negligence on the part of the appellant. In the accident, the
appellant suffered grievous injuries and fractures and has taken treatment at
Tirukumaran Hospital, Tiruchengode from 06.05.2012 to 27.05.2012, at
Erode Kovai Medical Centre Hospital for further treatment from 13.06.2012
to 02.08.2012, from 26.06.2012 to 29.06.2012, underwent surgery and
external fixation in right femur and right tibia. Again he took treatment at
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C.M.A. No.1944 of 2020
Thirukumaran Hospital at Tiruchengode from 07.10.2012 to 10.10.2012 and
underwent surgery and femur bone pins were replaced. The Medical Board
assessed that the appellant suffered 20% permanent disability and issued
disability certificate, marked as Ex.C1. At the time of accident, the appellant
was working as a Painter and was earning a sum of Rs.10,000/- per month.
Due to the accident, he could not continue his work as he was doing earlier.
The Tribunal awarded only meagre amount towards loss of income and
disability. The Tribunal failed to award any amount towards loss of amenities
and attendant charges and prayed for enhancement of the compensation and
setting aside 10% negligence fixed on the appellant.
10.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the accident occurred only when the
appellant suddenly crossed the road from North to South, while the Car was
coming from East to West slowly. The appellant is responsible for the accident.
The learned counsel appearing for the 2nd respondent further contended that in
the FIR, it has been stated that the accident occurred while the appellant was
crossing the road. The Tribunal considering the entire materials, both oral and
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C.M.A. No.1944 of 2020
documentary evidence, held that appellant also contributed to the accident.
There is no error in the said finding of the Tribunal. The total compensation
awarded by the Tribunal under different heads are not meagre. The appellant has
not made out any case for enhancement of the compensation and prayed for
dismissal of the appeal.
11.Heard learned counsel appearing for the appellant as well as the 2nd
respondent-Insurance Company and perused the materials available on record.
12.It is the contention of the appellant that while he was walking on the
left hand side of the road, the driver of the Car belonging to the 1st respondent
drove the same in a rash and negligent manner and dashed on the appellant
and caused the accident. In the accident, he sustained injuries, fracture and
suffered disability. He has taken treatment as inpatient at Erode KMCH and
Tiruchengode Thirukumaran Hospital on different spells viz., from
06.05.2012 to 27.05.2012, from 13.06.2012 to 02.08.2012, from 26.06.2012
to 29.06.2012 and from 07.10.2012 to 10.10.2012, for a period of 169 days.
To prove the same, he examined himself as P.W.1 and filed FIR and other
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C.M.A. No.1944 of 2020
documents with regard to treatment taken and Ex.C1 – disability certificate.
On the other hand, it is the case of the 2nd respondent that accident occurred
only due to negligence of the appellant, when he suddenly crossed the road.
To substantiate the same, the 2nd respondent has not examined the driver of
the Car or any other independent witness. The Tribunal considering the FIR
and failure on the part of the appellant to produce the Accident Register, held
that appellant also would have contributed to the accident. The Tribunal has
not appreciated the evidence of P.W.1 who denied the suggestion that
accident occurred while he was crossing the road. The contents of FIR is not
the basis for fixing negligence. The Tribunal must consider the materials
placed before it, especially, the evidence let in on oath. In the present case,
the respondents have not let in any contra evidence to the evidence of
appellant as P.W.1. The Tribunal, on presumption fixed 10% contributory
negligence without there being any evidence. Hence, the same is liable to be
set aside and is hereby set aside. The appellant is entitled to entire award
amount, determined by the Tribunal.
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C.M.A. No.1944 of 2020
13.As far as the quantum of compensation is concerned, the Tribunal
considering the injuries suffered, period of treatment taken and disability
sustained, adopted multiplier method and granted compensation towards loss
of income. In addition to that, the Tribunal has awarded a sum of
Rs.1,00,000/- each towards pain and suffering and disability separately. In
view of the excess amount granted towards pain and suffering and disability
separately, the appellant is not entitled to compensation for loss of amenities
and attendant charges. There is no error in the award of the Tribunal,
warranting interference by this Court.
14.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.12,87,724/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit is confirmed. The
respondents are jointly and severally directed to deposit the entire award
amount, determined by the Tribunal, along with interest and costs, 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.465 of 2012. On such deposit, the appellant is
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C.M.A. No.1944 of 2020
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.
18.01.2021
Index : Yes / No
gsa
To
1.The Subordinate Judge,
(Motor Accident Claims Tribunal),
Sankari.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.1944 of 2020
V.M.VELUMANI, J.,
gsa
C.M.A.No.1944 of 2020
18.01.2021
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