Madras High Court
M.Sathya vs A.Dharani on 9 March, 2021
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 09.03.2021
Coram::
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A.Nos.135, 136, 137 of 2018
& C.M.A.Nos.514 to 516 of 2018
& C.M.P.Nos.4518 to 4520 of 2018
C.M.A.No.135 of 2018
M.Sathya ... Appellant
in C.M.A.No.135 of 2018
/versus/
1. A.Dharani,
(Remained ex-parte before trial Court)
2. United India Insurance Company Limited,
Motor Third Party Hubb, 4th Floor,
Silinghi Buildings, 134, Greams Road,
Thousand Lights, Chennai – 600 006. ... Respondents
in C.M.A.No.135 of 2018
Prayer in C.M.A.No.135 of 2018: Civil Miscellaneous Appeal is filed under
Section 173 of Motor Vehicle Act, 1988, against the judgment and decree dated
14.09.2013 made inn M.A.C.T.O.P.No.7932 of 2013, on the file of the II Small
Causes Court (Motor Accidents Claims Tribunal), Chennai.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
C.M.A.No.136 of 2018
K. Malar ... Appellant
in C.M.A.No.136 of 2018
/versus/
1. A.Dharani,
(Remained ex-parte before trial Court)
2. United India Insurance Company Limited,
Motor Third Party Hubb, 4th Floor,
Silinghi Buildings, 134, Greams Road,
Thousand Lights, Chennai – 600 006. ... Respondents
in C.M.A.No.136 of 2018
Prayer in C.M.A.No.136 of 2018: Civil Miscellaneous Appeal is filed under
Section 173 of Motor Vehicle Act, 1988, against the judgment and decree dated
14.09.2013 made inn M.A.C.T.O.P.No.7939 of 2013, on the file of the II Small
Causes Court (Motor Accidents Claims Tribunal), Chennai.
C.M.A.No.137 of 2018
Kaja ... Appellant
in C.M.A.No.137 of 2018
/versus/
1. A.Dharani,
(Remained ex-parte before trial Court)
2. United India Insurance Company Limited,
Motor Third Party Hubb, 4th Floor,
Silinghi Buildings, 134, Greams Road,
Thousand Lights, Chennai – 600 006. ... Respondents
in C.M.A.No.137 of 2018
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
Prayer in C.M.A.No.137 of 2018: Civil Miscellaneous Appeal is filed under
Section 173 of Motor Vehicle Act, 1988, against the judgment and decree dated
14.09.2013 made inn M.A.C.T.O.P.No.7940 of 2013, on the file of the II Small
Causes Court (Motor Accidents Claims Tribunal), Chennai.
C.M.A.No.514 of 2018
United India Insurance Company Limited,
Motor Third Party Hubb, 4th Floor,
Silinghi Buildings, 134, Greams Road,
Thousand Lights, Chennai – 600 006. ... Appellant
in C.M.A.No.514 of 2018
/versus/
1. M.Sathya,
2. A.Dharani, ... Respondents
in C.M.A.No.514 of 2018
Prayer in C.M.A.No.514 of 2018:- Civil Miscellaneous Appeal is filed under
Section 173 of Motor Vehicle Act, 1988, against the judgment and decree in
O.P.No.7932 of 2013 dated 14.09.2017 passed by the II Small Causes Judge,
Motor Accidents Claims Tribunal, Chennai.
C.M.A.No.515 of 2018
United India Insurance Company Limited,
Motor Third Party Hubb, 4th Floor,
Silinghi Buildings, 134, Greams Road,
Thousand Lights, Chennai – 600 006. ... Appellant
in C.M.A.No.515 of 2018
/versus/
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
1. K.Malar
2. A.Dharani, ... Respondents
in C.M.A.No.515 of 2018
Prayer in C.M.A.No.515 of 2018:- Civil Miscellaneous Appeal is filed under
Section 173 of Motor Vehicle Act, 1988, against the judgment and decree in
O.P.No.7939 of 2013 dated 14.09.2017 passed by the II Small Causes Judge,
Motor Accidents Claims Tribunal, Chennai.
C.M.A.No.516 of 2018
United India Insurance Company Limited,
Motor Third Party Hubb, 4th Floor,
Silinghi Buildings, 134, Greams Road,
Thousand Lights, Chennai – 600 006. ... Appellant
in C.M.A.No.516 of 2018
/versus/
1. Kaja
2. A.Dharani, ... Respondents
in C.M.A.No.516 of 2018
Prayer in C.M.A.No.516 of 2018:- Civil Miscellaneous Appeal is filed under
Section 173 of Motor Vehicle Act, 1988, against the judgment and decree in
O.P.No.7940 of 2013 dated 14.09.2017 passed by the II Small Causes Judge,
Motor Accidents Claims Tribunal, Chennai.
For Appellant : Mr.R.Kalaiarasan
in C.M.A.Nos.135, 136 & 137 of 2018
For R1 : exparte
in C.M.A.Nos.135, 136 & 137 of 2018
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
For R2 : Ms.R.Rathna Thara
in C.M.A.Nos.135, 136 & 137 of 2018
For Appellant : Ms.R.Rathna Thara
in C.M.A.No.514 of 2018
For R1 : Mr.R.Kalaiarasan
in C.M.A.No.514 of 2018
For R2 : exparte
in C.M.A.No.514 of 2018
For Appellant : Ms.R.Rathna Thara
in C.M.A.Nos.515 & 516 of 2018
For R1 : No appearance
in C.M.A.Nos.515 & 516 of 2018
For R2 : exparte
in C.M.A.Nos.515 & 516 of 2018
COMMON JUDGMENT
These Appeals are arising out of the common judgment and decree
passed by the Motor Accident Claims Tribunal, Chennai.
2. The facts of the case is that, on 03.09.2013, at about 19.00 hours, a
car bearing registration No.TN-22-CZ-4506, rash and negligently driven by his
driver, lost its control and run over the pedestrians walking along Mudichur Road
near Lakshmi Nagar, 1st Street. In the said accident, M.Sathya, K.Malar and Kaja
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
sustained injury. They were admitted in the hospital and treated for the injury.
Separate claim petitions were filed by these three injured persons against the
owner of the car A.Dharani and his insurer.
3. The Tribunal, after considering the evidence placed before it, had
awarded a sum of Rs.86,000/- to M.Sathya, who is the petitioner in
M.C.O.P.No.7932 of 2013 as against her claim of Rs.8,00,000/-. Awarded a sum
of Rs.20,000/- to K.Malar, who is the petitioner in M.C.O.P.No.7939 of 2013 as
against her claim of Rs.3,00,000/- Awarded a sum of Rs.20,000/- to Kaja, who is
the petitioner in M.C.O.P.No.7940 of 2013 as against his claim of Rs.3,00,000/-.
4. Aggrieved by the quantum of compensation and liability, the
Insurance Company has preferred appeal in C.M.A.No.514 of 2018 against the
award passed in M.C.O.P.No.7932 of 2013, whereas, the claimant/M.Sathya, not
been satisfied with the compensation, for the enhancement of compensation has
preferred the appeal in C.M.A.No.514 of 2018. Likewise, against
M.C.O.P.No.7939 of 2013 filed by K.Malar, the Insurance Company has preferred
Appeal in C.M.A.No.136 of 2018, challenging the quantum and liability. The
claimant has filed C.M.A.No.515 of 2018 for enhancement of compensation.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
Likewise, in claim petition filed by Kaja, the Insurance Company has preferred
appeal in C.M.A.No.516 of 2018 challenging the quantum and liability. The
claimant has filed C.M.A.No.137 of 2018 for enhancement of compensation.
Liability
5. As far as the liability fastened on the Insurance Company is
concerned, in the appeal, it is contended that, the driver of the offending car had
no driving licence and same has been proved in the trial. Since there is a
fundamental breach of statute as well as the terms of contract, the Insurance
Company is not liable to indemnify the vehicle owner. The evidence placed before
the Court not been properly considered by the Tribunal though the tribunal while
framing point for consideration, had framed one of the point, as who is liable to
pay compensation.
6. From the evidence of R.W.1 Regional Transport Officer, it has
been established that, the driver of the offending vehicle Mr.Amarnath had only
Learner's Licence, on the date of accident. The Tribunal has concluded that there
is no violation of Rule 3 of the Central Motor Vehicle Rules, 1989 and therefore,
negatived the plea of Insurance Company which prayed for pay and recovery. The
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
said conclusion of the Tribunal is legally incorrect.
7. Chapter – II, Rule 3 of Central Motor Vehicle Rule, 1989, which
deals with Licensing of Drivers of Motor Vehicle, who are learners. As per this
Rule, the necessity for driving licence as contemplated Section 3 of Motor Vehicle
Act, will not apply to a leaner. Provided, he must be accompanied by an instructor
holding an effective driving License to drive the vehicle and such instructor is
sitting in such a position to control or stop the vehicle and there must be painting
of the Letter “L” in red on a white background, in the front and the rear of the
vehicle on a plate or a card affixed.
8. Reading of Rule 3 of the Motor Vehicles Act, which mandates,
possession of a Driving License along with General Rule for learners clearly show
that a person who possess only learner licence cannot driver a vehicle alone
without being accompanied by a person who possess a valid driving licence and
accompanying driver sit in a position to control the vehicle. In this case, there is
no evidence to show that the driver of the offending vehicle was accompanied by a
person possessing valid driving licence. Therefore, the conclusion of the Tribunal
that, there is no violation of Rule 3 of Central Motor Vehicle Rules, is factually
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
incorrect. Hence, the Insurance Company taking recourse to the principle of “pay”
and “recover” is justifiable and to be allowed.
9. The Appellant/Insurance Company in C.M.A.Nos.514, 515 and
516 of 2018 is entitled to recovery the award amount from the vehicle owner, after
satisfying the claimants.
Quantum
10. As far as the quantum is concerned, M.Sathya, who is the
petitioner in M.C.O.P.No.7932 of 2013, the appellant in C.M.A.No.135 of 2018
and 1st respondent in C.M.A.No.514 of 2018 was awarded a sum of Rs.86,000/- as
compensation. The doctor, who has assessed the disability has given a disability
certificate that she has incurred 50% partial permanent disability. The nature of
injury sustained by her is fracture of both bone left lower forearm, injury at right
occipito parietal region, right temporal region aberration over right eyebrow.
11. The Tribunal, taking note of the guidelines prepared by American
Academy of Orthopedic Surgeons and the fact that, the claimant suffers mal-
united fracture which can be cured by way of physiotherapy, has fixed the
disability at 17% and had awarded a sum of Rs.51,000/- for the said disability
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
besides other compensation under non-conventional heads.
12. The Learned Counsel appearing for the appellant would submit
that the claimants was earning around Rs.16,500/- per month as a designer and due
to the accident injury, she has not only lost the income during the treatment period
but her earning capacity had permanently reduced, due to fracture of both bone on
left lower forearm.
13. As far as the claim made by M.Sathya, to substantiate her claim,
medical bills, discharge summary, salary certificate and reliving letter are marked
as exhibits. But the author of the salary certificate or the reliving letter not been
examined and therefore, the Tribunal has not given much evidentiary value for
these two documents. In the opinion of this Court, it is right on the part of the
Tribunal to ignore these two documents. However, taking note of the fact that
there was fracture of both bone in left lower forearm, 17% disability appears to be
less. As pointed out by the Tribunal, the American Journal has assessed such
disability to 22% and we find that, apart from fracture of left lower forearm, there
are other injuries also sustained by the claimant. Hence, this Court fixed the
disability at 30% instead of 17%. Regarding other non-conventional heads, this
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
Court finds no error in the award passed by the Tribunal. Accordingly, the Appeal
filed by M.Sathya in C.M.A.No.135 of 2018 is Partly Allowed as far as quantum
of compensation is concerned, the award of the Tribunal is enhanced from
Rs.86,000/- to Rs.1,25,000/-. The Appeal filed by the Insurance Company in
C.M.A.No.514 of 2018 is also partly allowed insofar as the liability is concerned
by ordering pay and recovery. The Insurance Company is directed to pay a sum of
Rs.1,25,000/- along with 7.5% interest, within a period of 8 weeks, from the date
of petition till the date of realisation. On such deposit, the claimant is permitted to
withdraw the award amount. The Insurance Company is permitted to recover the
award amount from the vehicle owner A.Dharani, as per the dictum laid down in
Nanjappa -vs- State of Karnataka.
C.M.A.No.136 of 2018
14. Regarding the Appeal in respect of the claim petition made in
M.C.O.P.No.7939 of 2013 by K.Malar, this Court finds that because of the there
was a oil spill over her and the Doctor has certified 15% disability. The Tribunal
has awarded a consolidated sum of Rs.20,000/-. taking note of the fact that, the
injury caused is only simple injury. In support of the claim, the claimant has filed
A.R copy marked as Ex.P.9. There is no indication in the A.R copy (Ex.P.9) that
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
the petitioner was injured grievously or being hospitalised for the said accident.
For mental agony, pain and sufferings, medical and travel expenses, the Tribunal
has awarded consolidate sum of Rs.20,000/-.
15. This Court, on considering the A.R copy (Ex.P.9) and out patient
slip (Ex.P.10), relied by the claimant conclude that there is no serious injury which
need compensation more than Rs.20,000/- therefore, the award passed by the
Tribunal regarding compensation payable to the claimant K.Malar is confirmed
and her Appeal filed for enhancement of compensation is dismissed.
16. The Appeal by the Insurance Company in C.M.A.No.515 of 2018
is partly allowed. Giving liberty to the Insurance Company to recovery the said
amount from the owner of the vehicle.
C.M.A.No.137 of 2018
17. Regarding the Appeal in respect of the claim petition made in
M.C.O.P.No.7940 of 2013 by Kaja, this Court finds that because of the accident,
there was a oil spill over her, and the Doctor has certified 15% disability. The
Tribunal has awarded a consolidated sum of Rs.20,000/-. Taking note of the fact
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
that, the injury caused is only simple injury. In support of the claim, the claimant
has filed A.R copy (Ex.P.11). There is no indication in the A.R copy (Ex.P.11) that
the petitioner was injured grievously or being hospitalised for the said accident.
For mental agony, pain and sufferings, medical and travel expenses, the Tribunal
has awarded consolidate sum of Rs.20,000/-.
18. This Court, on considering the A.R copy Ex.P.11 and out patient
slip (Ex.P.12), relied by the claimant hold that there is no serious injury which
needs compensation of more than Rs.20,000/- therefore, the award passed by the
Tribunal regarding compensation payable to the claimant Kaja is confirmed and
his appeal filed for enhancement of compensation is dismissed.
19. The Appeal filed by the Insurance Company in C.M.A.No.516 of
2018 is partly allowed. Liberty to pay & liberty granted to petitioner/Insurance
Company.
20. As a result, the Civil Miscellaneous Appeal No.135 of 2018 filed
for enhancement of compensation is Partly Allowed. C.M.A.Nos.514 of 2018,
515 of 2018 and 516 of 2017 are Partly allowed. The appellants are given liberty
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
to pay the claimant and recovery from the insured/vehicle owner. C.M.A.No.136
of 2018 and C.M.A.No.137 of 2018 filed for enhancement of compensation are
dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
09.03.2021
Index :Yes/No
Speaking order/Non-speaking order.
bsm
To:-
1.The II Small Causes Court (Motor Accidents Claims Tribunal), Chennai.
2.The Section Officer, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.135, 136, 137 of 2018
& C.M.A.No.514 to 516 of 2018 & C.M.P.Nos.4518 to 4520 of 2018
Dr.G.Jayachandran,J.
bsm
C.M.A.Nos.135,136, 137 of 2018
& C.M.A.Nos.514 to 516 of 2018
& C.M.P.Nos.4518 to 4520 of 2018
09.03.2021
https://www.mhc.tn.gov.in/judis/
