Madras High Court

United India Insurance Co. Ltd vs Dheenadhayalan on 21 June, 2021

                                                                CMA Nos.2479 of 2015 and 2101 of 2016

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 21.06.2021

                                                       CORAM:

                                   THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                                        CMA Nos.2479 of 2015 and 2101 of 2016
                                                        and
                                                 MP No.1 of 2015

                     United India Insurance Co. Ltd.
                     No.2, Dr. Sankaran Road,
                     Namakkal Town & District.                          ... Appellant
                                                                                 in
                                                                        CMA No.2479 of 2015

                     Deenadhayalan                                      …   Appellant
                                                                                 in
                                                                        CMA No.2101 of 2016
                                                     Versus

                     1. Dheenadhayalan
                     2. Saroja
                     3. Kanagaraj
                     4. Aruna
                     5. Palaniammal                                     ... Respondents

in CMA No.2479 of 2015

Eswaramoorthi (Died)

1. The United India Insurance Company Ltd., No.2, Dr. Sankaran Road, Namakkal Town & District.

2. Saroja https://www.mhc.tn.gov.in/judis/

CMA Nos.2479 of 2015 and 2101 of 2016

3. Kanagaraj

4. Aruna

5. Palaniammal

Respondents 2 to 5 remained exparte before the Tribunal, hence notice may be dispensed with for the respondents 2 to 5 in this Appeal.

                                                           ….                Respondents
                                                                                  in
                                                                         CMA No.2101 of 2016

Prayer in CMA No.2479 of 2015 : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 28.01.2015 made in MCOP No.408 of 2013 on the file of the MACT (ADJ) at Namakkal.

Prayer in CMA No.2101 of 2016 : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act for enhancement of compensation awarded in the judgment and decree dated 28.01.2015 made in M.C.O.P. No.408 of 2013 on the file of MACT / Additional District Court at Namakkal CMA No.2479 of 2015 For Appellant : Ms.I.Malar For Respondents : Mr.Ma.P.Thangavel for R1 R2 to R5 – Served – No appearance

CMA No.2101 of 2016 For Appellant : Mr.Ma.P. Thangavel For Respondents : Ms.I.Malar for R1 Not ready in notice reg. R2 to R5

COMMON JUDGMENT

(Heard Video Conference)

CMA No.2479 of 2015 has been filed by the Insurance Company

challenging its liability to pay the compensation to the first respondent / https://www.mhc.tn.gov.in/judis/

CMA Nos.2479 of 2015 and 2101 of 2016

claimant under the impugned award dated 28.01.2015 passed by the

Motor Accidents Claims Tribunal, Additional District Judge, Namakkal

in MCOP No.408 of 2013.

2.The claimant, who is the first respondent in CMA No.2479 of

2015 has challenged the very same impugned award seeking for

enhancement of compensation in CMA No.2101 of 2016.

3. The Tribunal under the impugned award dated 28.01.2015,

directed the Insurance Company to pay the claimant a compensation of

Rs.1,44,500/- together with interest and costs as detailed hereunder :-

                                               Heads               Amount awarded
                                                                    by the Tribunal
                                                                         (Rs.)
                                   22% Disability compensation                 44000
                                   Medical expenses as per bills               25537
                                   Transportation charges                        5000
                                   Nutrition                                   10000
                                   Pain and suffering                          25000
                                   Loss of amenities                           25000
                                   Attender charges                            10000
                                   Total                                    1,44,537
                                   Rounded off                              1,44,500

https://www.mhc.tn.gov.in/judis/

CMA Nos.2479 of 2015 and 2101 of 2016

4. Heard Ms.I. Malar, learned counsel for the appellant in CMA

No.2479 of 2015 / 1st respondent in CMA No.2101 of 2016 and

Mr.Ma.P.Thangavel, learned counsel for the 1st respondent in CMA

No.2479 of 2015 / appellant in CMA No.2101 of 2016. Remaining

respondents in both appeals were set ex-parte before the Tribunal, hence

notice to them are dispensed with.

5. This Court has perused the materials and evidence available on

record before the Tribunal.

6. The Insurance Company has challenged the award on the ground

that the Tribunal has erroneously held them liable to compensate the

claimant despite there being no documentary evidence to show that the

accident had occurred only due to the negligent riding of the bike

bearing Registration No.TN-28-AE-0790 by its rider in which the

claimant Deena Dhayalan was a pillion rider. The Insurance Company

has not challenged the quantum of compensation fixed by the Tribunal.

With regard to the contention raised by the Insurance Company in CMA

No.2479 of 2015 is concerned, the same has been duly considered by the

Tribunal under the impugned award.

https://www.mhc.tn.gov.in/judis/

CMA Nos.2479 of 2015 and 2101 of 2016

7. Before the Tribunal, the claimant has filed 12 documents which

were marked as Exs.P1 to P12 and three witnesses were examined on his

side viz., the claimant himself as PW1, the Doctor who examined him as

PW2 and an eye witness to the accident as PW3. On the side of the

Insurance Company, no document was filed before the Tribunal and only

a witness viz., Tirumathi Vimala, the Sub Inspector of Police was

examined as RW1.

8. Before the Tribunal, the case of the claimant as seen from the

claim petition as well as from the oral evidence deposed by PW1 and

PW3 is that on 22.05.2012 at about 6.45 p.m., when the claimant was

travelling as a pillion rider in a Passion Pro motor bike bearing

Registration No.TN-28-AH-7264 on the left side of the road in the East

to West direction, another motor bike viz., Hero Honda Splendor plus

bearing Registration No.TN-28-AE-0790 coming from the opposite

direction dashed against the motor bike bearing Registration No.TN-28-

AH-7264, due to the rash and negligent driving by the rider of the motor

cycle bearing Registration No.TN-28-AE-0790. The motor bike bearing

Registration TN-28-AE-0790 was insured with the appellant in CMA

No.2479 of 2015. Even though the FIR was registered only against the

motor bike in which the claimant was travelling as a pillion rider viz., the https://www.mhc.tn.gov.in/judis/

CMA Nos.2479 of 2015 and 2101 of 2016

vehicle bearing Registration No.TN-28-AH-7264, the said FIR was

registered not at the behest of the claimant but at the behest of the

brother of the deceased Easwaramurthy, who was the rider of the vehicle

bearing TN-28-AH-7264. A consistent stand has been taken by the

claimant before the Tribunal that only the opposite vehicle bearing

Registration No.TN-28-AE-0790 was at fault, which resulted in the

accident.

9. Before the Tribunal, the brother of the deceased Easwaramurthy

who lodged a complaint which is the basis of the FIR was also not

examined as a witness. Even though the Insurance Company as seen

from the impugned award has alleged that a charge sheet has been filed

against the de-facto complainant viz., the brother of the deceased

Easwaramurthy, the rider of the motorcycle bearing Registration No.TN-

28-AH-7264, the said charge sheet has also not been placed before the

Tribunal. No documentary evidence has been produced by the Insurance

Company before the Tribunal to prove that their vehicle bearing TN-28-

AE-0790 is not at fault. However, a consistent stand has been taken by

the claimant, through his oral and documentary evidence that only due to

the fault of the vehicle TN-28-AE-0790 which is insured with the

appellant in CMA No.2479 of 2015, the accident had happened. https://www.mhc.tn.gov.in/judis/

CMA Nos.2479 of 2015 and 2101 of 2016

10. It is settled law that a motor accident claim is decided on

preponderance of probabilities. In the case on hand, as seen from the

evidence available on record and based on preponderance of probability,

the Tribunal has rightly come to the conclusion that the vehicle bearing

Registration TN-28-AE-0790 insured with the appellant in CMA

No.2479 of 2015 is solely responsible for the cause of the accident.

Hence, this Court rejects the contention of the appellant in CMA

No.2479 of 2015 that the rider of the vehicle, which has been insured

with them is not at fault for the cause of the accident.

11. The claimant has also filed a separate appeal in CMA No.2101

of 2016 seeking for enhancement of compensation as according to him,

the quantum of compensation fixed by the Tribunal is not a just

compensation. The claimant has sustained the following injuries as a

result of the accident.

12. The Doctor (PW2), who has treated the claimant has assessed

his disability at 22%. The disability compensation fixed by the Tribunal

is Rs.44,000/-, calculated at Rs.2,000/- per percentage of disability. The

accident happened in the year 2012. The Tribunal has not given due https://www.mhc.tn.gov.in/judis/

CMA Nos.2479 of 2015 and 2101 of 2016

consideration to the year of the accident and the nature of injuries

sustained by the claimant. If the same was considered, the Tribunal ought

to have granted a higher disability compensation. After giving due

consideration to the nature of injuries and the year of the accident, this

Court fixes the disability compensation at Rs.55,000, calculated at

Rs.2,500/- per percentage of disability for the 22% disability suffered by

the claimant. Accordingly, the disability compensation is enhanced to

Rs.55,000/- from Rs.44,000/- fixed by the Tribunal.

13. Insofar as the compensation awarded by the Tribunal under

various other heads medical expenses, transportation charges, nutrition,

pain and suffering, loss of amenities and attender charges are concerned,

this Court is of the considered view that it is a just compensation and

does not call for any interference.

14. For the foregoing reasons, the award of the Tribunal is hereby

enhanced in the following manner :

https://www.mhc.tn.gov.in/judis/

CMA Nos.2479 of 2015 and 2101 of 2016

Heads Amount awarded Amount awarded by the Tribunal by this Court (Rs.) (Rs.) 22% Disability 44000 55000 compensation * # *Rs.2,000/- per percentage x 22% # Rs.2,500/- per percentage x 22% Medical expenses as per 25537 25537 bills Transportation charges 5000 5000 Nutrition 10000 10000 Pain and suffering 25000 25000 Loss of amenities 25000 25000 Attender charges 10000 10000 Total 1,44,537 1,55,537 Rounded off 1,44,500 1,55,500

15. In the result, the appeal filed by the Insurance Company in

CMA No.2479 of 2015 is dismissed and the appeal filed by the claimant

in CMA No.2101 of 2016 is partly allowed. No costs. Consequently,

connected miscellaneous petition is closed.

16. The appellant in CMA No.2479 of 2015 as well as 1st

respondent in CMA No.2101 of 2016 / Insurance Company is directed to

deposit the entire award amount as assessed by this Court together with

https://www.mhc.tn.gov.in/judis/

CMA Nos.2479 of 2015 and 2101 of 2016

interest at 7.5% p.a. from the date of claim petition till the date of

realization, less the amount, if any, already deposited to the credit of

M.C.O.P. No.408 of 2013 on the file of Motor Accidents Claims Tribunal