Madras High Court
H.Fayas vs R.Tamil Selvi on 7 July, 2021
C.M.A.No.2214 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2021
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.2214 of 2016
H.Fayas ... Appellant
Vs
1.R.Tamil Selvi
2.The Reliance General Insurance Co. Ltd.,
No.628, II Floor, Balmer Lawrie House,
Anna Salai, Chennai. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and decree dated 27.06.2014
made in MCOP.No.531 of 2012 on the file of the Motor Accidents Claims
Tribunal, Sub Court, Poonamallee.
For Appellant : Mr.K.Varadha Kamaraj
For R-2 : Mrs.Bhuvana Sundari
For R-1 : No appearance
1/12
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C.M.A.No.2214 of 2016
JUDGMENT
(This Appeal has been taken up for hearing through Video Conferencing)
This Civil Miscellaneous Appeal has been filed by the
Appellant/Claimant seeking enhancement of compensation under the
impugned award dated 27.06.2014 passed by the Motor Accident Claims
Tribunal, Subordinate Judge, Poonamallee in MCOP No.531 of 2012.
2. Heard Mr.K.Varadha Kamaraj, learned counsel for the
Appellant/Claimant and Mrs.Bhuvana Sundari, learned counsel for the
Second respondent/Insurance Company. The first respondent has remained
exparte both before the Tribunal as well as this Court.
3. The Appellant/claimant has preferred this Appeal unsatisfied with
the quantum of compensation awarded by the Tribunal and also aggrieved
by the findings of the Tribunal that he is also equally responsible for the
cause of the accident as he was in a drunken state when the accident
happened.
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C.M.A.No.2214 of 2016
4. The Tribunal, under the impugned award assessed the
compensation payable to the Appellant/Claimant at Rs.3,59,951/-, as
detailed hereunder :
Heads Award Amount
(Rs.)
Injury 90,000/-
Transportation 5,000/-
Attendant's expenses 1,000/-
Medical expenses 2,18,951/-
Loss of income 20,000/-
Pain & Sufferings 20,000/-
Extra nourishment 5,000/-
Total 3,59,951/-
5. The Appellant / Claimant sustained the following injuries as a
result of an accident which happened on 07.05.2012 caused by a vehicle
owned by the first respondent and insured with the Second
Respondent/Insurance Company.
(a) Bone fracture of right frontal bone
(b) Head injury
(c) Bone fracture of orbital bone
(d) Injuries all over the body
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C.M.A.No.2214 of 2016
6. The Tribunal, under the impugned award has also fixed
contributory negligence against the Appellant/Claimant at 50% on account
of the fact that the Appellant/Claimant was under the influence of alcohol
when the accident happened.
7. Before the Tribunal, the Appellant/Claimant has filed nine
documents which were marked as Exs.P1 to P9 and two witnesses were
examined on his side namely the Appellant/Claimant himself as PW1 and
the doctor who examined him as PW2. On the side of the second
respondent, one document was filed namely the Accident Register copy
dated 07.05.2012 which was marked as Ex.R1 and one witness was
examined namely the Insurance company official as RW1. The second
respondent/insurance company disputed the liability before the Tribunal on
the ground that the Appellant/Claimant was under the influence of alcohol
when the accident had happened. However, as seen from the impugned
award, without the assistance of any scientific test report, as per the
provisions of the Motor Vehicles Act, based on the Accident Register copy
which was marked as Ex.R1, the Tribunal has fixed the contributory
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C.M.A.No.2214 of 2016
negligence on the Appellant/Claimant at 50% on the ground that he was
under the influence of alcohol at the time of accident. As per the provisions
of Section 185 of the Motor Vehicles Act, there is a procedure to be
adopted for the purpose of deciding as to whether any person was under the
influence of alcohol or not, while driving the vehicle.
Section 185 of the Motor Vehicles Act reads as follows -
185. Driving by a drunken person or by a person under the
influence of drugs - Whoever , while driving, or attempting
to drive, a motor vehicle -
(a) has, in his blood, alcohol exceeding 30 mg. per
100 ml. of blood detected in a test by a breath
analyser, or
(b) is under the influence of a drug to such an extent
as to be incapable of exercising proper control over
the vehicle,
shall be punishable for the first offence with imprisonment
for a term which may extend to six month, or with fine which
may extend to two thousand rupees, or with both ; and for a
second or subsequent offence, if committed within three
years of the commission of the previous similar offence, with
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C.M.A.No.2214 of 2016
imprisonment for a term which may extend to two years, or
with fine which may extend to three thousand rupees, or with
both.
Explanation – For the purpose of this section, the drug or
drugs specified by the Central Government in this behalf, by
notification in the Official Gazette, shall be deemed to render
a person incapable or exercising proper control over a motor
vehicle.
8. Admittedly, in the instant case, the above mentioned procedure has
not been followed and test report contemplated therein has also not been
filed before the Tribunal by the second respondent. The Tribunal, only
based on the Accident Register copy which discloses that the
Appellant/Claimant was under the influence of alcohol, has fixed his
contributory negligence at 50% which in the considered view of this Court
is not a correct assessment, as there is no scientific test report, as required
under the provisions of Section 185 of Motor Vehicles Act, 1988. This
Court is of the considered view that the assessment of contributory
negligence against the Appellant/Claimant at 50% is very high. After
giving due consideration to the materials and evidence available on record
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C.M.A.No.2214 of 2016
as well as the Accident Register copy (Ex.R1) relied upon by the second
respondent, this Court fixes the contributory negligence of the
Appellant/Claimant at 25% instead of 50% fixed by the Tribunal.
9. With regard to the quantum of compensation awarded by the
Tribunal towards disability at Rs.90,000/- is concerned, it has to be
necessarily enhanced as the Tribunal has failed to take into consideration
the year of the accident. The accident happened on 07.05.2012. The doctor
has assessed the disability of the Appellant/Claimant at 45%. If the year of
accident was given due consideration, the Tribunal ought to have granted
disability compensation at Rs.3000/- per percentage of disability but
instead, the Tribunal had erroneously awarded disability compensation at
Rs.2000/- per percentage of disability. Hence, this Court enhances the
disability compensation to Rs.1,35,000/-, calculated at Rs.3000/- per
percentage of disability for the 45% disability instead of Rs.90,000/-
awarded by the Tribunal, calculated at Rs.2000/- per percentage of disability
for 45% disability.
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C.M.A.No.2214 of 2016
10. The Tribunal has awarded a compensation of Rs.5,000/- towards
transportation and Rs.1,000/- towards attendant's expenses which in the
considered view of this Court is low. After giving due consideration to the
nature of injuries and the year of the accident, this Court enhances the
compensation towards transportation from Rs.5000/- to Rs.10,000/- and
towards Attendant's expenses from Rs.1,000/- to Rs.5,000/-. Similarly, the
Tribunal has awarded a compensation of Rs.20,000/- towards Pain &
Sufferings and Rs.5,000/- towards extra nourishment which also needs to
be enhanced. Accordingly, this Court enhances the compensation towards
Pain & Sufferings from Rs.20,000/- to Rs.30,000/- and towards extra
nourishment from Rs.5,000/- to Rs.10,000/-. The Tribunal has awarded a
compensation of Rs.20,000/- towards loss of income, calculated at
Rs.5,000/- per month for a period of four months.
11. At the time of accident, the Appellant/Claimant was working as a
service technician in a private concern. The avocation of the
Appellant/Claimant has also not been disputed by the second respondent
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C.M.A.No.2214 of 2016
before the Tribunal. This being the case, the Tribunal ought to have fixed
the notional monthly income of the Appellant/Claimant at Rs.8,000/-
instead of Rs.5,000/-. Accordingly, the notional monthly income of the
Appellant/Claimant is fixed at Rs.8,000/- instead of Rs.5,000/- fixed by the
Tribunal. Therefore, the loss of income to the Appellant/Claimant is
enhanced to Rs.32,000/-, calculated at Rs.8,000/- per month for a period of
four months instead of Rs.20,000/-, calculated at Rs.5,000/- per month for a
period of four months. The Tribunal has also erroneously failed to award
any compensation towards damages to clothing and loss of amenities of life
which the Appellant/Claimant is legally entitled to, in accordance with the
settled law. Hence, this Court awards the compensation at Rs.1,000/-
towards damages to clothing and Rs.15,000/- towards loss of amenities to
the Appellant/Claimant. In so far as the compensation awarded by the
Tribunal towards medical expenses at Rs.2,18,951/- is concerned, they are
supported by bills which have been marked as Ex.P4 before the Tribunal
and therefore the same is confirmed by this Court.
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C.M.A.No.2214 of 2016
12. For the foregoing reasons, the compensation awarded by the
Tribunal under the impugned award is enhanced from Rs.3,59,951/- to
Rs.4,56,951/- by this Court, in the following manner. The contributory
negligence against the appellant/claimant is also reduced to 25% instead of
50% fixed by the Tribunal.
Heads Amount awarded Amount awarded
by the Tribunal by this Court
(Rs.) (Rs.)
Injury 90,000/- 1,35,000/-
Transportation 5,000/- 10,000/-
Attendant's expenses 1,000/- 5,000/-
Medical expenses 2,18,951/- 2,18,951/-
Loss of income 20,000/- 32,000/-
Pain & Sufferings 20,000/- 30,000/-
Extra nourishment 5,000/- 10,000/-
Damages to clothing - 1,000/-
Loss of amenities - 15,000/-
Total 3,59,951/- 4,56,951/-
Less : contributory negligence @ 25%
against the appellant/claimant ... 1,14,238/-
----------------
75% of the award amount payable
by the 2nd respondent/Insurance company ... 3,42,713/-
==========
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C.M.A.No.2214 of 2016
Conclusion:
13. In the result, this appeal shall stand partly allowed. The Second
Respondent / Insurance Company is directed to deposit 75% of the amount
awarded by this Court i.e. Rs.3,42,713/- together with interest at the rate of
7.5% per annum from the date of claim till the date of deposit and costs,
after deducting the amount already deposited to the credit of MCOP.No.531
of 2012 within a period of four weeks from the date of receipt of a copy of
this Judgment. On such deposit being made, the Tribunal is directed to
transfer the award amount to the bank account of the appellant/claimant
through RTGS within a period of one week thereafter. The requisite Court
fee, if any has to be paid by the Appellant/Claimant before receiving the
copy of this Judgment. No costs.
07.07.2021
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
rgr
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2214 of 2016
ABDUL QUDDHOSE, J.
rgr
To
1. The Subordinate Judge,
Motor Accidents Claims Tribunal,
Poonamallee.
2.The Section Officer
V.R.Section, High Court,
Madras.
C.M.A.No.2214 of 2016
07.07.2021
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