Madras High Court
Oriental Insurance Company ... vs S.Kamalesan on 9 November, 2021
C.M.A.No.29 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.29 of 2014
and
M.P.No.1 of 2014
Oriental Insurance Company Limited
Divisional Office J.L.C. Building No.1,
Katpadi Road, Vellore 4 .. Appellant
Vs.
S.Kamalesan .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment and Decree dated 11.06.2013 in
M.C.O.P.No.1504 of 2006 on the file of the Motor Accident Claims Tribunal,
Chief Judicial Magistrate Court, Krishnagiri.
For Appellant : Mr.K.Vinoth for
Mr.Elveera Ravindran
For Respondent : No appearance
1/8
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C.M.A.No.29 of 2014
JUDGMENT
(This matter is heard through “Video-Conferencing”.)
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the award dated 11.06.2013 in
M.C.O.P.No.1504 of 2006 on the file of the Motor Accident Claims Tribunal,
Chief Judicial Magistrate Court, Krishnagiri.
2.The appellant/Insurance Company is the second respondent in
M.C.O.P.No.1504 of 2006 on the file of the Motor Accident Claims Tribunal,
Chief Judicial Magistrate Court, Krishnagiri. The respondent filed the said
claim petition claiming a sum of Rs.4,10,000/- as compensation for the
injuries sustained by him in the accident that took place on 14.11.2005.
3.According to the respondent, on the date of accident i.e., on
14.11.2005 at about 2.15 p.m., while he was proceeding in the motorcycle
bearing Registration No. TN 24 A 0509 towards Kaveripattinam in
Krishnagiri to Dharmapuri NH Road, nearing Nalandha School, Krishnagiri,
the rider of the motorcycle bearing Registration No.TN 23 AY 5119 who was
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C.M.A.No.29 of 2014
coming in the opposite direction, over took the bus by riding the same in a
rash and negligent manner and dashed against the motorcycle bearing
Registration No.TN 24 A 0509 driven by the claimant/respondent. In the
accident, the respondent sustained multiple injuries and therefore, filed the
claim petition seeking compensation against the appellant and owner of the
vehicle.
4.The owner of the vehicle, the first respondent in the claim petition
remained ex-parte before the Tribunal.
5.The appellant filed counter statement denying the averments made by
the respondent and contented that the accident has occurred only due to rash
and negligent riding by the respondent. Both riders of the motorcycle bearing
Registration Nos. TN 24 A 0509 and TN 23 AY 5119 did not possess valid
driving license at the time of accident. The owner and insurer of the
motorcycle bearing Registration No. TN 24 A 0509 are not made as parties in
the claim petition and hence, the claim petition is not maintainable for non-
joinder of necessary parties. Therefore, the appellant is not liable to pay any
compensation to the respondent. The appellant has also denied the age,
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C.M.A.No.29 of 2014
avocation, income and nature of injuries sustained by the respondent. In any
event, the total compensation claimed by the respondent is excessive and
prayed for dismissal of the claim petition.
6.Before the Tribunal, the respondent examined himself as P.W.1 and
Dr.S.Krishnan was examined as P.W.2 and marked 7 documents as Exs.P1 to
P7. On the side of the appellant/Insurance Company, one Ramesh, the Sub
Inspector of Police was examined as R.W.1, one Ghouse Sheriff, the Junior
Assistant in RTO Office was examined as R.W.2, one Panneerselvam,
Administration Officer in the appellant's Insurance Company was examined
as R.W.3 and marked 8 documents as Exs.R1 to R8.
7. Pending claim petition, the owner of the Motor cycle bearing
Regn.No.TN 23 AY 5119, 1st respondent in MCOP, died.
8. The Tribunal, considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent riding by
the rider cum owner of the motorcycle bearing Registration No. TN 23 AY
5119 insured with the appellant and directed the appellant/Insurance
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C.M.A.No.29 of 2014
Company to pay a sum of Rs.3,01,035/- as compensation to the respondent at
the first instance and recover the same from the legal estate of owner of the
offending vehicle.
9.Against the said award dated 11.06.2013 made in M.C.O.P.No.1504
of 2006, granting compensation to the respondent, the appellant/Insurance
Company has come out with the present appeal.
10. Though the learned counsel appearing for the appellant/Insurance
Company raised grounds with regard to negligence, at the time of arguments,
he restricted his arguments only with regard to quantum of compensation
granted by the Tribunal and contended that the Tribunal has failed to see the
appellant has not proved that he lost his vision. In the absence of any evidence
with regard to loss of vision in the left eye, the Tribunal erred in awarding
compensation by fixing 75% disability for loss of permanent and partial
disability. The amounts awarded by the Tribunal under different heads are
excessive and prayed for setting aside the award of the Tribunal.
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C.M.A.No.29 of 2014
11.Heard the learned counsel appearing for the appellant/Insurance
Company and perused the entire materials available on record.
12. It is the contention of the respondent that in the accident, he lost his
vision in the left eye. As per Exs.A2 to A7, the Doctor/P.W.2 certified that the
appellant has suffered 75% disability. The appellant/Insurance Company has
not let in any contra evidence to disprove the disability assessed by the
Doctor/P.W.2. The Tribunal after perusing the documents filed by the
respondent, considering the nature of injuries sustained by the respondent and
evidence of Doctor/P.W.2, accepted the percentage of disability assessed by
Doctor/P.W.2, applied percentage method, fixed the disability of the
respondent at 75% and awarded a sum of Rs.2,25,000/- towards loss of
permanent and partial disability at the rate of Rs.3,000/- per percentage. The
accident is of the year 2005. The amounts granted for disability is not
excessive. The Tribunal considering the age of the respondent, qualification
and nature of injuries sustained by him, awarded compensation under
different heads, which are not excessive warranting any interference by this
Court.
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C.M.A.No.29 of 2014
13. In the result, this Civil Miscellaneous Appeal is dismissed and the
sum of Rs.3,01,035/- awarded by the Tribunal as compensation to the
respondent along with interest and costs is confirmed. The
appellant/Insurance Company is directed to deposit the entire amount
awarded by the Tribunal along with interest and costs, less the amount
already deposited, if any, within a period of twelve weeks from the date of
receipt of a copy of this judgment, at the first instance and recover the same
from the legal estate of owner of the vehicle. On such deposit, the respondent
is permitted to withdraw the entire amount awarded by the Tribunal along
with interest and costs, less the amount if any, already withdrawn.
Consequently, connected Miscellaneous Petition is closed. No costs.
09.11.2021
vkr
Index : Yes / No
Internet : Yes / No
To
1.The Chief Judicial Magistrate,
Motor Accident Claims Tribunal,
Krishnagiri.
2.The Section Officer,
VR Section, High Court,
Madras.
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C.M.A.No.29 of 2014
V.M.VELUMANI, J.
vkr
C.M.A.No.29 of 2014 and
M.P.No.1 of 2014
09.11.2021
https://www.mhc.tn.gov.in/judis
