Madras High Court
The Branch Manager vs Devaraj on 27 July, 2021
C.M.A.No.2390 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.07.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.2390 of 2015 &
M.P.No.1 of 2015
The Branch Manager,
United India Insurance Co. Ltd.,
Ranipet ... Appellant
Vs
1.Devaraj
2.Durairaj ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act against the Judgment and Decree dated 13.06.2014 made in
MCOP.No.68 of 2012 on the file of the Motor Accident Claims Tribunal
(Subordinate Judge), Cheyyar.
For Appellant : Ms.Rathna Thara
For Respondent 1 : Mr.S.Mathesh
Not ready in notice regarding R2.
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2390 of 2015
JUDGMENT
(This case is heard through Video Conferencing)
This civil miscellaneous appeal has been filed by the Insurance
company challenging the award dated 13.06.2014 passed by the Motor
Accident Claims Tribunal (Subordinate Judge, Cheyyar) in MCOP.No.68 of
2012.
2. The Appellant Insurance Company has challenged the impugned
award on the following grounds (a) the first respondent/claimant himself is
a tortfeasor as the accident had happened while he was boarding the bus
(insured vehicle) and (b) the quantum of compensation awarded by the
Tribunal is excessive, since the Tribunal has erroneously adopted the
multiplier method for assessing the compensation.
3. The Tribunal has awarded a compensation of Rs.12,68,000/- to the
first respondent/claimant as detailed hereunder:
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C.M.A.No.2390 of 2015
Heads Award Amount
(Rs.)
Transport to hospital 10,000/-
Extra nourishment 20,000/-
Pain and suffering 50,000/-
Permanent disability 11,88,000/-
Total 12,68,000/-
4. With regard to the first contention raised by the Appellant is
concerned, this Court rejects the same for the following reasons:
(a) It is the case of the first respondent/claimant as seen from the
claim petition filed before the Tribunal that while attempting to board the
bus (insured vehicle) at the bus stop and even before he could board the bus,
the driver of the bus by his rash and negligent driving moved the bus which
resulted in him falling down and sustaining injuries. A consistent stand has
been taken by the first respondent/claimant as seen from his pleading as
well as from his deposition before the Tribunal. No contra evidence has
been produced by the Appellant insurance Company to disprove the said
contention.
(b) FIR (Ex.P1) has also been registered only against the driver of the
bus (insured vehicle). No contra evidence has been produced by the
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C.M.A.No.2390 of 2015
Appellant Insurance Company before the Tribunal to disprove the
contention of the first respondent/claimant.
5. This Court is of the considered view that the Tribunal was right in
holding the driver of the insured bus alone responsible for the cause of the
accident which resulted in the first respondent/claimant sustaining injuries.
6. With regard to the second contention namely the quantum of
compensation awarded by the Tribunal to the first respondent/claimant is
excessive is concerned, there is some substance. However, the same will
have to be re-adjudicated once again by the Tribunal for the following
reasons:
(a) The first respondent/claimant in his claim petition has claimed a
compensation of Rs.4,50,000/-, whereas the Tribunal has awarded a
compensation of Rs.12,68,000/- under the impugned award. Though the
same is permissible under law, the Tribunal ought to have given reasons for
awarding such a huge sum, despite the fact that the first respondent/claimant
has himself claimed only R.4,50,000/-
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C.M.A.No.2390 of 2015
(b) The permanent disability of the first respondent/claimant has been
fixed at 60% by the Tribunal under the impugned award based on the
certificate issued by the medical board which has been marked as Ex.P10 as
well as the certificate issued by the Doctor which has been marked as
Ex.P18 before the Tribunal. The disability certificate issued by the medical
board (Ex.P10) does not refer to the fractures sustained by the first
respondent/claimant as a result of the accident, but it refers to other
ailments. Whether 60% disability assessed by the medical board (Ex.P10)
and the disability certificate issued by the Doctor (Ex.P18) is only on
account of the injuries sustained by the first respondent/claimant as a result
of the accident caused by a vehicle insured with the Appellant has not been
considered by the Tribunal as seen from the impugned award. The
contention of the Appellant Insurance Company is that the assessment of the
disability by the medical board as well as the doctor is an erroneous
assessment.
(c) The Appellant insurance company has also raised the contention
that the first respondent/claimant is a chronic smoker and an alcohol
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C.M.A.No.2390 of 2015
consumer as seen from Ex.P4 and Ex.P7 discharge summaries issued by
Miot Hospitals. The Tribunal has also not taken into consideration the said
contention of the Appellant Insurance Company as seen from the impugned
Award.
(d) Tt is brought to the notice of this Court that 50% of the award
amount has already been deposited by the Appellant Insurance company
before the Tribunal and out of the said deposited amount, a sum of
Rs.4,00,000/- was permitted to be withdrawn by the first
respondent/claimant by the order of this Court.
7. Since the contention of the Appellant insurance company which
have been raised in this appeal referred to supra, have admittedly not been
considered by the Tribunal under the impugned award, this Court is of the
considered view that the matter will have to be remitted back to the Tribunal
for fresh consideration on merits and in accordance with law and the
Tribunal shall consider the contentions referred to supra based on the
materials and evidence available on record.
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C.M.A.No.2390 of 2015
8. This Court is not expressing any opinion on the merits of the claim
made by the first respondent/claimant and the Tribunal shall pass an award
uninfluenced by any of the observations made by this Court in this
judgment.
9. For the foregoing reasons, the impugned judgment dated
13.06.2014 passed by the Motor Accident Claims Tribunal (Sub Judge,
Cheyyar) in MCOP.No.68 of 2012 is hereby set aside and the matter is
remanded back to the Tribunal for fresh consideration and the Tribunal after
permitting the respective parties to adduce further evidence ,shall pass final
award within a period of four months from the date of receipt of a copy of
this judgment. However, it is made clear that the Tribunal shall confirm the
findings of the Tribunal under the impugned award that the driver of the
bus (insured vehicle) was alone responsible for the cause of the accident and
shall give the finding only with regard to the quantum of compensation
payable to the Appellant/Insurance Company raised in this appeal which
have been referred to supra.
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C.M.A.No.2390 of 2015
10. In the result, this civil miscellaneous appeal is disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
27.07.2021
nl
Note: Registry is directed to send back the records after issuance of order
copy to the respective counsels immediately to the Tribunal.
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
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C.M.A.No.2390 of 2015
To
1. The Subordinate Judge, Cheyyar.
2.The Section Officer, V.R.Section, High Court of Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2390 of 2015
ABDUL QUDDHOSE, J.
nl
C.M.A.No.2390 of 2015
27.07.2021
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