Madras High Court
S.Ashik Ali vs Jak Industries on 29 July, 2021
C.M.A.No.1486 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.07.2021
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A.No.1486 of 2020
S.Ashik Ali .. Appellant
Vs.
1.Jak Industries,
Plot No.28/A, New Street,
Arjuna Nagar, Thirumullaivoyal,
Chennai - 600 062.
2.Universal Sompo General Insurance Company Limited,
Capitable Towers, 5th Floor,
554 & 555, Anna Salai, Teynampet,
Chennai - 600 018. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
26.06.2019 made in M.C.O.P.No.3347 of 2017 on the file of the Motor
Accident Claims Tribunal, III Small Causes Court, Chennai.
For Appellant : Ms.Ramya V.Rao
For R2 : Ms.R.Sreevidhya
1/10
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C.M.A.No.1486 of 2020
JUDGMENT
The matter is heard through “Video Conferencing/Hybrid Mode”.
2.This Civil Miscellaneous Appeal has been filed challenging the
contributory negligence fixed on the part of the deceased as well for
enhancement of compensation granted by the Tribunal in the award dated
26.06.2019 made in M.C.O.P.No.3347 of 2017 on the file of the Motor
Accident Claims Tribunal, III Small Causes Court, Chennai.
3.The appellant is the claimant in M.C.O.P.No.3347 of 2017 on the file
of the Motor Accident Claims Tribunal, III Small Causes Court, Chennai. He
filed the above said claim petition, claiming a sum of Rs.30,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 17.10.2016.
4.According to the appellant, on 17.10.2016 at about 15.30 hrs., when
he was riding the motorcycle bearing Registration No. TN 56 Z 6630
proceeding towards Ambattur, Tannerkulam junction near water service
centre, the car bearing Registration TN 13 A 7384 driven by its driver from
(Thiruvallur) opposite direction in a rash and negligent manner endangering
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C.M.A.No.1486 of 2020
public safety, hit the appellant's motorcycle and caused the accident. Due to
the said accident, the appellant sustained grievous and multiple injuries all
over the body. Therefore, the appellant filed the said claim petition claiming a
sum of Rs.30,00,000/- as compensation for the injuries sustained by him in
the accident, against the respondents, being the owner and insurer of the car
respectively.
5.The 1st respondent-owner of the car and 2nd respondent-Insurance
Company remained exparte before the Tribunal.
6.Before the Tribunal, the appellant examined himself as P.W.1 and 22
documents were marked as Exs.P1 to P22. The respondents did not let in any
oral and documentary evidence. Disability certificate received from the
Regional Medical Board was marked as Ex.C1.
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 car belonging to the 1st respondent as well as due to
negligence on the part of the appellant, fixing 75% negligence on the part of
the driver of the car and 25% negligence on the part of the appellant for not
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C.M.A.No.1486 of 2020
possessing valid driving license at the time of accident, awarded a sum of
Rs.9,74,212.74/- as compensation and directed the 2nd respondent-Insurance
Company, being the insurer of the car to pay a sum of Rs.7,30,660/- towards
25% of the award amount as compensation to the appellant.
8.Questioning the portion of the award fixing 25% contributory
negligence on the part of the appellant as well for enhancement of
compensation in the award dated 26.06.2019 made in M.C.O.P.No.3347 of
2017, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant contended that the
Tribunal erroneously fixed 25% contributory negligence on the part of the
appellant on the ground that he did not possess driving license at the time of
accident. The accident occurred only due to the negligence on the part of the
driver of the car belonging to 1st respondent and F.I.R. was registered against
the driver of the car. The Tribunal ought to have fixed entire negligence on
the part of the driver of the car belonging to 1st respondent. The appellant has
taken treatment as inpatient for more than 84 days at Sri Ramachandra
Hospital, Porur. He was referred to the Regional Medical Board from
Government Royapettah Hospital and the Regional Medical Board examined
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C.M.A.No.1486 of 2020
the appellant and certified that appellant suffered 10% disability and issued
Ex.C1/disability certificate to that effect. But the Tribunal fixed a meagre sum
of Rs.12,000/- as monthly income of the appellant. The accident occurred in
the year 2016 and the Tribunal ought to have fixed a sum of Rs.16,000/- as
monthly income of the appellant. The amounts awarded by the Tribunal under
different heads are meagre and prayed for setting aside 25% of contributory
negligence on the part of the appellant as well as enhancement of
compensation.
10.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the accident did not occur due to rash and
negligent driving by the driver of the car belonging to 1st respondent as
alleged by the appellant. The appellant only had driven the uninsured
motorcycle without driving license in a rash and negligent manner and
caused the accident. The appellant has not proved the avocation and income
by producing any valid document. In the absence of acceptable evidence, the
monthly income of the appellant fixed by the Tribunal at Rs.12,000/- per
month is excessive. The total compensation awarded by the Tribunal is not
meagre and prayed for dismissal of the appeal.
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C.M.A.No.1486 of 2020
11.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.
12.It is the case of the appellant that on 17.10.2016 at about 15.30 hrs.,
when he was riding the motorcycle bearing Registration No. TN 56 Z 6630
proceeding towards Ambattur, Tannerkulam junction near water service
centre, the car bearing Registration TN 13 A 7384 driven by its driver from
(Thiruvallur) opposite direction in a rash and negligent manner endangering
public safety, hit the appellant's motorcycle and caused the accident. To prove
the same, the appellant examined himself as P.W.1 and marked F.I.R. as
Ex.P1, which was registered against the driver of the car. To disprove the
same, the respondents did not examine the driver of the car or any other
independent witness to prove their case that accident has occurred due to the
negligence of the appellant. The Tribunal fixed 25% contributory negligence
on the part of the appellant only on the ground that the appellant has not
produced the driving license. The Hon'ble Apex Court in the judgment
reported in 2018 (1) TN MAC 34 (SC) [Dinesh Kumar, J. @ Dinesh, J. Vs.
National Insurance Co. Ltd. and others], held that mere failure to produce
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C.M.A.No.1486 of 2020
the driving license is not sufficient to draw adverse inference in respect of
contributory negligence and non-production of driving license by claimant is
of no consequence and prayed to set aside the contributory negligence fixed.
The ratio in the said judgment is squarely applicable to the facts of the present
case and the 25% contributory negligence fixed on the part of the appellant is
liable to be set aside and is hereby set aside. The appellant is entitled to entire
compensation awarded by the Tribunal.
13.It is the contention of the appellant that in the accident, he sustained
right femur diaphyseal fracture, right leg both bone fracture with Ex-fix in
situ, postop status right femur IMI sirus nailing and right tibia open reduction
and internal fixation with plate and screws, malunited fracture right tibia and
multiple injuries all over the body. The Regional Medical Board from
Government Royapettah Hospital examined the appellant and certified that
appellant suffered 10% disability and issued disability certificate/Ex.C1 to
that effect. The Tribunal accepted the disability certificate issued by the
Medical Board and considering the nature of injuries sustained by the
appellant, adopted multiplier method and awarded a sum of Rs.3,22,560/-
towards loss of earning capacity, which is proper. The Tribunal considering
the entire materials on record, has awarded a sum of Rs.9,74,213/- as
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C.M.A.No.1486 of 2020
compensation to the appellant, which is just and reasonable and hence the
same is hereby confirmed.
14.In the result, this Civil Miscellaneous Appeal is partly allowed and a
sum of Rs.9,74,213/- awarded by the Tribunal as compensation to the
respondents, along with interest and costs is confirmed. The 2nd respondent-
Insurance Company is directed to deposit the award amount along with
interest and costs, less the amount if any 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.3347 of 2017 on the file of the Motor Accident Claims Tribunal,
III Small Causes Court, Chennai. On 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 by making
necessary applications before the Tribunal. No costs.
29.07.2021
mpa
Index : Yes / No
Internet : Yes / No
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C.M.A.No.1486 of 2020
To
1.The III Judge,
Small Causes Court
Motor Accident Claims Tribunal,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.1486 of 2020
S.KANNAMMAL, J.
mpa
C.M.A.No.1486 of 2020
29.07.2021
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