Madras High Court
R.Vijay Anand vs J.Sathish Kumar on 23 June, 2021
CMA No. 2178 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 23.06.2021
Coram :
THE HONOURABLE MRS. JUSTICE S.KANNAMMAL
Civil Miscellaneous Appeal No. 2178 of 2014
R.Vijay Anand .. Appellant
Versus
1. J.Sathish Kumar
(Notice for R1 dispensed with, since
R1 set exparte before the Tribunal)
2. New India Assurance Co. Ltd.,
Regional Office, Premier Complex
Yercaud Main Road, Salem -16. .. Respondents
Civil Miscellaneous Appeal filed under Section 173 of The Motor
Vehicles Act, 1988 against the Order and Decreetal order dated 07.04.2011
made in MCOP No.114 of 2010 on the file of the Motor Accident Claims
Tribunal , (Chief Judical Magistrate), Salem.
For Appellant : M/s.C.Kulanthaivel
-------
1/12
http://www.judis.nic.in
CMA No. 2178 of 2014
JUDGMENT
This appeal has been filed by the appellant/claimant challenging the
contributory negligence fixed on the driver of the two wheeler-TVS XL
Super, in which the appellant/claimant was travelling as a pillion rider and
also the quantum of compensation awarded by the Tribunal in and by the
award dated 07.04.2011 made in MCOP No.114 of 2010 on the file of the
Motor Accident Claims Tribunal, (Chief Judical Magistrate), Salem.
2. The case of the appellant/claimant before the Tribunal is that on
22.03.2007 at about 8.30 a.m, when the appellant/claimant was travelling in
a TVS XL Super as pillion rider in Salem to Ayothiapattinam Road, near
Ayothiapattinam river bridge, one Swaraj Mazta Tempo bearing registration
No.TN-30-C-9990 came in the opposite direction in a rash and negligent
manner, dashed against the TVS XL Super and thereby, the
appellant/claimant and the driver of TVS XL Super fell down and due to the
said impact, the appellant sustained fracture in right hand below knee and
other multiple injuries all over the body and hence, the appellant/claimant
claimed a sum of Rs.6,00,000/- as compensation.
http://www.judis.nic.in
CMA No. 2178 of 2014
3. The claim petition filed by the claimant was resisted by the
second respondent herein/Insurance Company disputing the liability, manner
of accident and age, occupation and income of the claimant and nature of
injuries sustained by the claimant and also disputed the quantum of
compensation sought by the claimant.
4. In order to prove the claim, on the side of the claimant, the
claimant was examined as PW.1 and one Dr.Sridhar was examined as PW.2.
Exs.P1 to P14 were marked on the side of claimant. On the side of Insurance
Company, no oral and documentary evidence was adduced.
5. The Tribunal, after analysing the entire evidence available on
record, came to the conclusion that the accident was due to the contributory
negligent driving of both the driver of the TVS XL Super, in which claimant
travelled as a pillion rider and the driver of the tempo belonging to the first
respondent and insured with the second respondent. The Tribunal also fixed
contributory negligence of 20% :80% on the driver of the TVS XL Super and
the driver of the tempo respectively and passed an award for a sum of
Rs.92,300/-, under the following heads and out of which Rs.18,460/- (20%
http://www.judis.nic.in
CMA No. 2178 of 2014
award amount) was deducted towards contributory negligence on the part of
the driver of the TVS XL Super and the Tribunal ordered that the claimant is
entitled for Rs.73,840/- (80% award amount) only.
Sl.No Head under which the amount is Amount awarded by
awarded the Tribunal(in Rs.)
1 Medical Bills (as per Ex.P10) 43,300
2 Medical Bills (as per Ex.P11) 5,000
3 Loss of income for three months 9,000
4 20% partial permanent disability 30,000
5 Transportation 2,000
6 Extra nourishment 3,000
Total 92,300
6. Not being satisfied with the quantum of compensation awarded
by the Tribunal and the contributory negligence fixed on the driver of the two
wheeler-TVS XL Super, the appellant/claimant has come forward with the
present appeal seeking enhancement of compensation.
7. The learned counsel for the appellant contended that in the
accident, the appellant sustained fracture injuries and other grievous injuries
all over the body. The learned counsel further contended that P.W.2-Doctor
assessed 30% partial permanent disability to the claimant, considering the
http://www.judis.nic.in
CMA No. 2178 of 2014
fracture in his right hand front arm and dislocation of head portion of his
radial bone, but the Tribunal had taken only 20% disability and awarded
Rs.30,000/- by taking Rs.1,500/- per percentage of disability, which is very
meagre and atleast Rs.3,000/- is to be taken per percentage of disability. It is
further contended that the appellant was a tailor and due to the accident, the
appellant has been disabled from continuing his avocation. It is also
contended that the Tribunal has awarded a very meagre sum under the other
heads also and the Tribunal has not awarded any amounts towards pain and
sufferings, attender charges and loss of amenities. Hence, the learned
counsel prayed for enhancement of compensation. The learned counsel
would contend that the appellant is a third party and pillion rider and when
there is no evidence to prove that the rider of the two wheeler was rash and
negligent. The tribunal had erroneously fixed 20% contributing negligence
on the part of the rider of the two wheeler, needs to interfere of this Court and
prayed for setting aside the above findings.
8. Per contra, learned counsel for the second respondent/Insurance
Company would submit that the Tribunal, after considering the nature of
injuries, disability and treatment taken by the claimant and also considering
http://www.judis.nic.in
CMA No. 2178 of 2014
the age of the claimant, awarded a correct compensation and the same
requires no interference by this Court.
9. Insofar as the liability is concerned, this Court is of the view that
merely because of the evidence of PW.1/claimant that there was head on
collision, the liability cannot be fixed on the part of the driver of the two
wheeler-TVS XL Super. The Tribunal committed error in fixing the liability
on the part of the driver of the two wheeler-TVS XL Super, by merely
considering the evidence of PW.1/claimant and without any substantial
evidence that the rider of two wheeler was rash and negligent. FIR is
registered against the driver of the tempo and the driver of the tempo has also
admitted the offence and paid the fine amount, which was not considered by
the Tribunal. Since the Tribunal erred in fixing 20% liability on the part of
the driver of the two wheeler-TVS XL Super, it has to be interfered and this
Court is of the view to fix the entire liability on the part of the driver of tempo
belonging to the first respondent.
http://www.judis.nic.in
CMA No. 2178 of 2014
10. The disability suffered by the appellant was fixed at 30% by
PW.2-Doctor, but the Tribunal has taken only 20% disability. Considering
the fact that PW-2 Doctor, who gave disability certificate, has not given
treatment to the appellant/claimant, this Court is of the opinion that 20%
disability taken by the Tribunal is correct. The Tribunal has awarded
Rs.30,000/- towards disability by taking Rs.1,500/- per percentage of
disability, which in the opinion of this Court is meagre. Considering the
nature of fracture in the right hand front arm and the dislocation of head
portion of his radial bone, this Court is of the view that Rs.2,500/- per
percentage of disability is fair and reasonable. Accordingly, the disability
compensation arrived at by this Court is Rs.50,000/- (20% x Rs.2500).
11. Since the compensation awarded by the Tribunal under the
heads 'medical bills (Ex.A10) and (Ex.A11)' are based on medical bills
submitted by the claimant and the same was not disputed by the Insurance
Company, the same is hereby confirmed.
http://www.judis.nic.in
CMA No. 2178 of 2014
12. The Tribunal, considering the age of the claimant and year of the
accident, fixed Rs.3,000/- as notional monthly income of the claimant and
awarded a sum of Rs.9,000/- under the head loss of income for 3 months.
Considering the nature of injuries and the disability, this Court is of the view
that the compensation awarded by the Tribunal under the head loss of income
for 3 months is just and reasonable and hence, the same is hereby confirmed.
13. The Tribunal has awarded Rs.2,000/- for transportation and that
has to be enhanced to Rs.5,000/-. The Tribunal has awarded Rs.3,000/- for
extra-nourishment and that also has to be enhanced to Rs.5,000/-.
14. The Tribunal has not awarded any amounts towards pain and
suffering, attender charges, and loss of amenities. Considering the nature of
injuries, period of treatment and fixing of wire, this Court is of the view that a
reasonable amount to be awarded under the above heads. Accordingly, this
Court awards a sum of Rs.20,000/- towards pain and suffering, Rs.5,000/-
towards attender charges and Rs.5,000/- towards loss of amenities.
15. Accordingly, the award passed by the Tribunal, in comparison with
the amounts now awarded by this Court, is tabulated hereunder:
http://www.judis.nic.in
CMA No. 2178 of 2014
Sl.No Head under which the amount is Amount awarded Amount
awarded by the Tribunal awarded by this
(in Rs.) Court (in
Rs.)
1 Medical Bills (as per Ex.P10) 43,300 43,300
2 Medical Bills (as per Ex.P11) 5,000 5,000
3 Loss of income for three months 9,000 9,000
4 20% partial permanent disability 30,000 50,000
5 Transportation 2,000 5,000
6 Extra nourishment 3,000 5,000
7 Pain and sufferings Nil 20,000
8 Attender charges Nil 5,000
9 Loss of amenities Nil 5,000
Total 92,300 1,47,300
16. In the result, this Civil Miscellaneous Appeal is partly allowed,
enhancing the amount of compensation awarded by the Tribunal from
Rs.92,300/- to Rs.1,47,300/- (Rupees One Lakh Forty Seven Thousand and
Three Hundred only) payable by the second respondent/Insurance Company
with interest at 7.5% per annum from the date of claim petition till the date of
deposit, except for the default period, if any. No costs in this CMA.
17. The second respondent/Insurance Company is directed to deposit
http://www.judis.nic.in
CMA No. 2178 of 2014
the award amount, as assessed by this Court, together with interest at 7.5%
p.a., from the date of MCOP till the date of realisation with costs of MCOP,
except for the default period if any, less the amount already deposited, to the
credit of MCOP No.114 of 2010 on the file of the Motor Accident Claims
Tribunal, (Chief Judical Magistrate), Salem, 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 directly to the
bank account of the claimant/appellant herein, through NEFT/RTGS, within a
period of two weeks thereafter.
mra 23.06.2021
Index : yes/no
Internet : yes/no
Speaking/Non-speaking order
To
http://www.judis.nic.in
CMA No. 2178 of 2014
1. The Chief Judicial Magistrate
Motor Accident Claims Tribunal
Salem.
2. New India Assurance Co. Ltd.,
Regional Office, Premier Complex
Yercaud Main Road, Salem -16.
3. The Section Officer
Vernacular Records Section
High Court, Madras.
S.KANNAMMAL, J
http://www.judis.nic.in
CMA No. 2178 of 2014
mra
CMA. No. 2178 of 2014
23.06.2021
http://www.judis.nic.in
