Cholamandalam Ms General ... vs K.Karthick Prasath
2021 Latest Caselaw 5276 Mad

                                                                         C.M.A.No.616 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 01.03.2021

                                                     CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                               C.M.A. No.616 of 2021
                                             and C.M.P.No.3781 of 2021

                   Cholamandalam MS General Insurance Co. Ltd.,
                   having its Registered Office
                   at 2nd Floor, Dare House, 2, NSC Bose Road,
                   Chennai 600 001.                                             .. Appellant

                                                        Vs.

                   1.K.Karthick Prasath

                   2.S.Vignesh

                   3.R.Surendhar                                               .. Respondents


                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                   Vehicles Act, 1988, against the judgment and decree dated 20.09.2018, made

                   in M.C.O.P. No.473 of 2017, on the file of the Special Sub Court, (Motor

                   Accident Claims Tribunal), Erode.


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https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.616 of 2021

                                         For Appellant      : Mr.K.Vinod
                                                              for M/s. Elveera Antionette Ravindran

                                         For Respondents : Mr.R.Nalliyappan (For R1)

                                                  JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant-

Insurance Company against the judgment and decree dated 20.09.2018, made

in M.C.O.P. No.473 of 2017, on the file of the Special Sub Court, (Motor

Accident Claims Tribunal), Erode.

2.By consent of the learned counsel appearing for the appellant as well

as the 1st respondent, the appeal is taken up for final disposal at the admission

stage itself.

3.The appellant is the 3rd respondent in M.C.O.P. No.473 of 2017, on

the file of the Special Sub Court, (Motor Accident Claims Tribunal), Erode.

The 1st respondent/claimant filed the said claim petition, claiming a sum of

Rs.12,00,000/- as compensation for the injuries sustained in the accident that

took place on 18.01.2017.

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4.According to the 1st respondent, on the date of accident, when he was

traveling as pillion rider in a Motorcycle bearing Registration No.TN-38-CC-

8251 on Kovai Vilankurichi road, Vinobaji Nagar, near Visagam furniture,

from South to North direction, in a very slow speed, in cautious manner,

observing the traffic rules and regulations and also keeping left side of the

road, 2nd respondent driver of a Car bearing Registration No.TN-09-AX-8224

belonging to the 3rd respondent drove the same in a rash and negligent manner

and dashed against the Motorcycle in which the 1st respondent traveled as

pillion rider and caused the accident. The accident occurred only due to rash

and negligent driving by the 2nd respondent, driver of the Car belonging to the

3rd respondent. Hence, the 1st respondent filed the claim petition claiming

compensation against the respondents 2 and 3 as driver, owner and appellant

as insurer of the offending vehicle respectively.

5.The respondents 2 and 3, driver and owner of the Car, remained

exparte before the Tribunal.

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6.The appellant-Insurance Company, filed counter statement and

denied all the averments made by the 1st respondent in the claim petition.

According to the appellant, on the date of accident, when the 2 nd respondent

drove the Car bearing Registration No.TN-09-AX-8224 belonging to the 3rd

respondent slowly and carefully, following all the traffic rules and

regulations, the rider of the Motorcycle in which the 1st respondent traveled

as pillion rider, rode the same in a rash and negligent manner, with high speed

and without following traffic rules, failed to notice the Car coming in the

opposite direction and hit against the Car. There is no negligence on the part

of the 2nd respondent, driver of the Car. Hence, the appellant is not liable to

pay compensation to the 1st respondent. Two vehicles are involved in the

accident. Therefore, the claim petition is bad for non-joinder of owner and

insurer of the Motorcycle. At the time of accident, the rider of the Motorcycle

did not possess valid driving license to ply the vehicle and invited the

accident, without following the traffic rules. The 1st respondent has to prove

his age, avocation and income, manner of accident, injuries sustained and

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treatment taken to claim compensation. The total compensation claimed by

the 1st respondent is excessive and prayed for dismissal of the claim petition.

7.Before the Tribunal, the 1st respondent examined himself as P.W.1,

examined Dr.Sekar as P.W.2 and marked 20 documents as Exs.P1 to P20. The

appellant did not let in any oral and documentary evidence. The disability

certificate received from the District Medical Board was marked as Ex.C1.

8.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

the 2nd respondent, driver of the Car belonging to the 3rd respondent and

directed the appellant as insurer of the said vehicle to pay a sum of

Rs.11,54,100/- as compensation to the 1st respondent.

9.To set aside the award of the Tribunal dated 20.09.2018, made in

M.C.O.P. No.473 of 2017, the appellant - Insurance Company has come out

with the present appeal.

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10.The learned counsel appearing for the appellant-Insurance Company

contended that the Tribunal considering the fact that the rider of the

Motorcycle did not possess valid driving license and 1st respondent traveled

as pillion rider without wearing helmet and contributed to the occurrence,

ought not to have fixed the liability on the appellant. The Tribunal ought to

have fixed 50% contributory negligence on the part of the 1st respondent and

deducted 50% of the compensation awarded to him. The Tribunal erred in

holding that the 1st respondent suffered 35% disability, when the Medical

Board Certificate marked as Ex.C1, certified that the disability was temporary

and that it was not permanent. The Tribunal having found that a temporary

disability certificate is valid only for 5 years and that thereafter, the disability

may disappear or may get reduced considerably, went wrong in treating the

alleged disability as permanent disability. The Tribunal erred in fixing the

functional disability of the 1st respondent as 20% without any basis. In the

absence of any evidence by the respondents 1 and 2 to prove the avocation

and income of the deceased, the Tribunal erroneously fixed a sum of

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Rs.12,000/- per month as notional income. The Tribunal failed to consider the

deposition of P.W.1, wherein he has deposed that after 2017, he had not taken

any further treatment and he was leading a normal life without any difficulty.

In view of the above, the Tribunal erred in awarding 40% enhancement

towards future prospects. The amounts awarded by the Tribunal towards

future loss of earnings, pain and sufferings, medical expenses, loss of earning

during treatment period, transportation charges, extra nourishment and

damage to clothing are excessive and prayed for setting aside the award of the

Tribunal.

11.Per contra, the learned counsel appearing for the 1st respondent

contended that the Tribunal considering the evidence of 1st respondent as

P.W.1 and FIR registered against the 2nd respondent/driver of the Car

belonging to the 3rd respondent, in the absence of any contra evidence to

disprove the evidence of P.W.1 and any objection to the FIR registered

against the 2nd respondent, rightly fixed negligence on the part of the driver of

the Car and held the appellant as insurer of the offending vehicle is liable to

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pay the compensation awarded. There is no error in the finding of the

Tribunal. At the time of accident, the 1st respondent was working as a

Marketing Executive at Multitek Controls, Coimbatore and was earning a

sum of Rs.15,000/- per month. The Tribunal fixed only a sum of Rs.12,000/-

as monthly income and granted compensation which is not excessive. The

total compensation awarded by the Tribunal is not excessive, warranting

interference by this Court and prayed for dismissal of the appeal.

12.Heard the learned counsel appearing for the appellant-Insurance

Company as well as the 1st respondent and perused the materials available on

record.

13.It is the case of the 1st respondent that while he was travelling as a

pillion rider in a Motorcycle, the 2nd respondent, driver of the Car belonging

to the 3rd respondent and insured with the appellant drove the same in a rash

and negligent manner and dashed on the Motorcycle and caused the accident.

In the accident, he sustained head injuries and fracture. To substantiate the

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same, he examined himself as P.W.1 and marked FIR which was registered

against the 2nd respondent, driver of the Car as Ex.P1. On the other hand, it is

the case of the appellant that accident occurred only due to rash and negligent

riding by rider of the Motorcycle in which the 1st respondent was travelling as

a pillion rider. The appellant did not examine the driver of the Car or any eye

witness to prove their case. In the absence of any rebuttal evidence, the

Tribunal accepted the evidence of 1st respondent as P.W.1 and held that driver

of the Car was responsible for the accident. There is no error in the finding of

the Tribunal, warranting interference by this Court.

14.As far as the quantum of compensation is concerned, the 1st

respondent contended that he suffered head injuries, multiple bone fracture,

head ache, giddiness and loss of memory power. He was referred to the

District Medical Board. The District Medical Board examined the 1st

respondent and certified that he suffered 35% temporary disability. To prove

the nature of injuries, disability and treatment taken, the 1st respondent has

examined P.W.2 Doctor. The Tribunal considering the nature of avocation of

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the 1st respondent being Marketing Executive, injuries sustained, treatment

taken, the disability assessed by the District Medical Board and evidence of

P.W.1 and P.W.2, held that 1st respondent suffered functional disability and

fixed 20% as functional disability. The 1st respondent claimed that he was a

Marketing Executive and was earning a sum of Rs.15,000/- per month. He

did not file any document to prove the same. In the absence of any materials,

the Tribunal fixing the monthly income of the 1st respondent as Rs.12,000/-

and granting 40% enhancement, fixed Rs.16,800/- as monthly income. The 1st

respondent has not filed any documents to prove his avocation and income.

In the absence of any document, the monthly income fixed by the Tribunal is

excessive and hence, the same is reduced to Rs.14,000/-, including future

prospects. Due to the injuries sustained in the accident, the 1st respondent

would not have worked atleast for a period of two months. Hence, the amount

granted by the Tribunal towards partial loss of income is modified to

Rs.28,000/- [Rs.14,000/- x 2 months], at the rate of Rs.14,000/- for two

months. The Tribunal considering the judgment of the Hon'ble Apex Court,

has given valid reason for fixing 20% as functional disability and adopting

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multiplier method. The Tribunal considering the age of the 1st respondent as

23 years, applied the correct multiplier '18'. By fixing the monthly income

including future prospects as Rs.14,000/-, the compensation granted by the

Tribunal towards disability and loss of earning is modified to Rs.6,04,800/-

[Rs.14,000/- x 12 x 18 x 20%]. The Tribunal has granted a sum of

Rs.1,00,000/- for pain and sufferings, including loss of amenity of life,

happiness, inconvenience, future prospects and marriage life. The Tribunal

has granted a sum of Rs.2,92,935/-, rounded off to 2,92,900/- towards

medical expenses, including a sum of Rs.10,000/- towards future medical

expenses and Rs.5,000/- towards attendant charges. Considering the period of

treatment taken and nature of injuries sustained by the 1st respondent, the

amounts granted by the Tribunal towards extra nourishment, attendant

charges and damage to clothes are meagre. In view of the same, the

compensation awarded by the Tribunal for pain and suffering is not interfered

with. The amounts granted by the Tribunal under other heads are just and

reasonable and hence, the same are confirmed. Thus, the compensation

awarded by the Tribunal is modified as follows:

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S. No Description Amount awarded Amount Award by Tribunal awarded by this confirmed or (Rs) Court (Rs) enhanced or granted

1. Partial loss of income 24,000/- 28,000/- Enhanced

2. Transport expenses 5,000/- 5,000/- Confirmed

3. Extra nourishment 6,000/- 6,000/- Confirmed

4. Damage to clothes and 500/- 500/- Confirmed articles

5. Medical expenses, 2,92,900/- 2,92,900/- Confirmed future medical expenses and attendant charges

6. Pain and sufferings and 1,00,000/- 1,00,000/- Confirmed others

7. Disability and loss of 7,25,700/- 6,04,800/- Reduced earning power Total 11,54,100/- 10,37,200/- Reduced by Rs.1,16,900/-

15.In the result, this Civil Miscellaneous Appeal is partly allowed and

the amount awarded by the Tribunal at Rs.11,54,100/- is modified to

Rs.10,37,200/- together with interest at the rate of 7.5% per annum from the

date of petition till the date of deposit. The 1st respondent is not entitled for

any interest for the future medical expenses of Rs.10,000/-, as held by the

Tribunal. The appellant-Insurance Company is directed to deposit the award _____

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amount, now determined by this Court, along with interest and costs, 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.473 of 2017. On such deposit, the 1st respondent is

permitted to withdraw the award amount, now determined by this Court,

along with interest and costs, after adjusting the amount, if any, already

withdrawn, by filing necessary applications before the Tribunal. The

appellant-Insurance Company is permitted to withdraw the excess amount,

lying in the deposit to the credit of M.C.O.P. No.473 of 2017, if any already

deposited by them. It is made clear that if the 1st respondent has already

withdrawn the award amount, the appellant-Insurance Company is not

entitled to recover the same from the 1st respondent. Consequently, connected

Miscellaneous Petition is closed. No costs.

01.03.2021

Index : Yes/No Speaking Order : Yes/No gsa

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V.M.VELUMANI, J.,

gsa

To

1.The Special Subordinate Judge, (Motor Accident Claims Tribunal), Erode.

2.The Section Officer, V.R Section, High Court, Madras.

C.M.A. No.616 of 2021

01.03.2021

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