Madras High Court

Reliance General Insurance ... vs B.Selvaraj on 5 April, 2022

                                                                                 CMA.No.1871 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                 DATED: 05.04.2022
                                                      CORAM:
                                  THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
                                               CMA.No.1871 of 2018
                                                      and
                                               CMP.No.14440 of 2018

                     Reliance General Insurance Company Limited,
                     Rep.by its BM,
                     570, Rectified House, Naigum Cross Road,
                     Wadala (W) Mumbai – 600 031.                                ...Appellant

                                                          v.

                     1.B.Selvaraj

                     Mohanraj (died)

                     2.Ganeshamoorthy

                     3.The Managing Director,
                       Tamil Nadu State Transport Corporation,
                       37, Mettupalayam Road,
                       Coimbatore.                                               ...Respondents



                     Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
                     Act, 1988, to set aside the award and decree dated 14.02.2013 passed in
                     MACTOP No.1543 of 2008 on the file of the Motor Accident Claims
                     Tribunal, Tiruppur / the Chief Judicial Magistrate Court, Tiruppur.


                     1/11


https://www.mhc.tn.gov.in/judis
                                                                                    CMA.No.1871 of 2018




                                          For Appellant        : Mr.K.Moorthy
                                          For R1               : Mr.Ma.Pa.Thangavel
                                          For R2               : No appearance
                                          For R3               : Mr.K.J.Sivakumar


                                                     JUDGMENT

The 3rd respondent in MACTOP No.1543 of 2008 on the file of

the Chief Judicial Magistrate, Tiruppur / Motor Accident Claims Tribunal, is

the appellant herein. They have questioned the judgment dated 14.02.2013

in the aforementioned MACTOP No.1543 of 2008 on the ground that they

should not have been held liable to pay the compensation amount

determined and on the other hand, it was the 4th respondent before Tribunal

/ Managing Director, Tamil Nadu State Transport Corporation / 3rd

respondent herein who should have been mulcted with payment of any

compensation, if at all determined on the claim petition filed by B.Selvaraj

for the injuries suffered in a motor accident.

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2.The facts are that on 02.10.2008 at around 14:50 hours,

B.Selvaraj, was a pillion rider of a two wheeler / TVS Apache bearing Regn.

No.TN 40 W 4927. The motorcycle was driven from Tiruppur to

Dharapuram and when it reached Pollikalipalayam, the driver of the

motorcycle, had apparently tried to overtake, a State Transport Corporation

bus bearing Regn. No.TN-38-N-6701, apparently in a rash and negligent

manner and at that time, he hit the bus and the claimant suffered injuries.

The nature of the injuries suffered had been stated in the Claim Petition and

they are as follows:

“Right humarous fracture, right elbow fracture,

right leg fracture, right leg angle joint, right foot, left hand

and injuries all over the body.”

3.Claiming compensation for the injuries suffered, the Claim

Petition had been filed not only against the driver of the vehicle, but also

against the owner of the two wheeler and also against the Insurance

Company of the two wheeler. It is seen that subsequently, the State

Transport Corporation had also been impleaded as the 4th respondent in the

Claim Petition.

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4.A counter affidavit had been filed denying liability and also the

manner in which it was claimed that the accident had occurred. It was stated

by the present appellant that the main cause for the accident was the bus

driver and therefore, placing liability on the Insurance Company of the two

wheeler was unjustified and it was therefore stated that the appeal should be

allowed and the order passed granting compensation be interfered with.

5.During the course of trial, the claimant had examined himself as

PW1 and had also examined PW-2 to prove the income and as PW-3, the

Doctor who determined the disability. N.Nataraj the driver of the

Corporation bus was examined as RW-2. It is thus seen that the transport

corporation had given direct evidence with respect to the nature of the

accident which had occurred. Claimant marked Exs.P1 to P10. Among those

documents Exs.P1 to P5 were discharge summaries. Ex.P6 were Medical

Bills and Ex.P8 was the Teacher Education Certificate of the claimant.

Ex.P9 was the Disability Certificate. The respondent marked Exs.R1 to R3.

The Driving License was marked as Ex.R1.

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6.The Tribunal then proceeded to examine the nature of the

accident and whether it occurred owing to the negligence of the driver of the

bus bearing Regn. No.TN-38-N-0701.

7.In the discussion, with respect to the 1st issue, the Tribunal

found that on 02.10.2008 at around 2.50 p.m, the claimant was travelling as

pillion rider in a TVS Apache motorcycle bearing Regn. No.TN-40-W-4927

from Thiruppur to Dharapuram. When it came to MGR Nagar bus stop, the

driver of the two wheeler had hit against the bus from behind while trying to

overtake the bus. Naturally, a presumption can be drawn, in an accident of

such nature, that if a vehicle collides with the vehicle in the front, then the

vehicle coming from the back was the cause for the accident.

8.In the instant case, the two wheeler had tried to overtake the bus

when the accident occurred.

9.The Tribunal also examined the First Information Report

marked as Ex.P1 and also the complaint given by the driver of the bus, who

https://www.mhc.tn.gov.in/judis CMA.No.1871 of 2018

had stated that when he was about to park the vehicle, the driver of the two

wheeler had caused the accident by hitting it from behind. This evidence

was also corroborated by both PW-1 and by RW-2. It was therefore held that

the driver of the two wheeler was responsible for the accident.

10.This finding is questioned in the present appeal, wherein

reliance is placed by the appellant on the findings in Claim Petition in

MCOP No.1290 of 2008 filed by the driver of the two wheeler, wherein, it

was held that the driver of the bus was responsible for the accident. But that

reliance placed a responsibility on the present appellant to produce

necessary documents with respect to that Claim Petition. In the absence of

any such document it would be impossible on the part of this Court to

accept such a finding.

11.Further, the Tribunal in its order had very clearly stated that on

the basis of the evidence produced before the Tribunal, it had come to the

conclusion that the driver of the two wheeler alone was responsible for the

accident. I would therefore affirm that particular finding. The appeal had

been filed questioning that particular finding and the appeal is dismissed

with respect to that particular finding.

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12.The Tribunal then proceeded to determine compensation. The

Tribunal had taken into consideration the discharge summaries, which had

been issued by the hospitals, where the claimant had undergone operations

on 02.10.2008, 20.10.2008, 31.08.2009, 23.10.2009 and 23.03.2010. The

Doctor who issued the disability certificate was also examined as PW-3. His

evidence had been extracted in the order of the Tribunal. The Tribunal had

discussed about that particular evidence, which determined the disability of

the claimant. The doctor had determined 18% disability for the right leg

mobility reduction, 35% for stability reduction and 46% as per formula and

18% disability for mobility and strength reduction and another 18% for

reduction integrated activity and had fixed the total disability at 62.1% /

62%. The disability certificate had been produced as Ex.P9 and the X-Ray

as Ex.P10. As a fact, the claimant underwent surgery atleast 5 times. The

injuries had been extracted above. He had suffered extensive injuries. His

age was 28 years. Therefore, the Tribunal had adopted the multiplier

method, since there was continuous treatment and consecutive operations

conducted on the claimant. I would not find fault with that principle adopted

by the Tribunal.

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13.The Tribunal had determined the monthly income at

Rs.3,000/- and therefore, had determined the compensation for partial

permanent disability and loss of earning at

Rs.3,000x12x62/100x18=Rs.4,01,760/-. I would retain that particular

amount. The Tribunal also granted compensation under the conventional

heads and also granted a sum of Rs.72,000/- towards loss of income. I

would not disturb with those findings.

14.The Tribunal had granted compensation under various heads as

follows:-

                                                        Heads                         Amount
                                  1. Partial Permanent disability                      Rs.4,01,760/-
                                  2.Pain and suffering and mental agony                Rs.1,00,000/-
                                  3.Loss of amenities                                    Rs.25,000/-
                                  4.Medical expenses                                   Rs.1,88,281/-
                                  5.Loss of income                                       Rs.72,000/-
                                  (during the period of treatment)
                                  6.Nutrition                                            Rs.20,000/-
                                  7.Transportation                                       Rs.10,000/-
                                                         Total                         Rs.8,17,041/-







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                                                                                   CMA.No.1871 of 2018

15.The learned counsel for the appellant questioned the

compensation granted by the Tribunal. According to him the income had

been fixed at Rs.3,000/-, when there was no proof for income.

16.But I would state that income determined at Rs.3,000/- is a

minimum wage that could be determined and as a matter of fact, the

claimant had also produced Ex.P8 which was a Teacher Education

Certificate and therefore, it cannot be stated that the claimant could not have

had any employment at all.

17.The compensation granted is reasonable and I will not interfere

with the same. Therefore the Appeal is dismissed with costs. Consequently,

connected Civil Miscellaneous Petition is closed.

18.The award of the Tribunal dated 14.02.2013 in MCOP