Madras High Court
Madeshwaran vs Maniprasath on 8 April, 2022
C.M.A.No.2456 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2022
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A.No.2456 of 2021
Madeshwaran ... Appellant
Vs.
1.Maniprasath
2.The Proprietor,
RKM Indane Gas Service,
359, Old Bus Stand Road,
Bhavani Town,
Bhavani Taluk – 638 301.
3.The Divisional Manager,
United India Insurance Company Ltd.,
Office at Mettur Road,
Muthaiah Complex,
Erode – 638 011. ... Respondents
[The Respondents 1 and 2 are remained set ex-parte before the
Tribunal, hence, notice may be dispensed with for R1 & R2
in this appeal)
Prayer: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicle Act, 1988 against the award and decree dated 23.12.2020
made in MCOP.No.373 of 2018 by the Motor Accidents Claims Tribunal/IV
Additional District and Sessions Judge, Bhavani at Erode District.
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For Appellant : Mr.M.Guruprasad
for Mr.C.Ramaraj
For Respondents : Mr.S.Arunkumar
for R3
R1 & R2 Notice Dispensed with
JUDGMENT
[Judgment of the Court was delivered K.KALYANASUNDARAM, J]
The claimant in M.C.O.P.No.373 of 2018 on the file of the Motor
Accident Claims Tribunal/IV Additional District and Sessions Judge,
Bhavani at Erode District has come up with this appeal seeking
enhancement.
2.For the sake of convenience, the parties are referred to as per their
ranking before the Tribunal.
3.The case of the claimant before the Tribunal was that on 05.10.2018
at about 9.30 a.m he was standing with his motor cycle bearing
Registration No.TN 36 S 0819 on the left side of Bhavani to Appakoodal
main Road. At that time, a Lorry bearing Registration No.TN 86 6588,
owned by the second respondent and insured with the third
respondent/Insurance Company, which was driven by the first respondent in
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a rash and negligent manner and hit against him. Due to the impact, he
sustained grievous injuries all over his body.
4.It is his further case that he was 45 year old at the time of the
accident and working as a Cable Operator and earning Rs.20,000/- per
month. Due to the injuries sustained in the accident, he is not in a position
to continue his avocation. Hence, he filed a petition seeking compensation
of Rs.20,00,000/- from the driver, owner as well as the insurer of the Lorry.
5. The respondents 1 and 2 remained ex-parte before the Tribunal.
The claim petition was contested by the third respondent/Insurance
Company, and they disputed the manner of accident as projected by the
claimants and their liability to pay the compensation.
6.To substantiate the case, on the side of the claimant, he examined
himself as PW1 and marked totally 19 documents. On the side of the
Insurance Company, neither any oral evidence was adduced nor document
was marked. Ex.C1 Medical Board Certificate was marked as Court
Document.
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7.On appreciation of the oral and documentary evidence, the Tribunal
found that the accident had occurred, when the claimant was riding the two
wheeler, he dashed against the lorry. Further, the Tribunal on the basis of
Ex.P2/Rough Sketch, Ex.P3/Observation Mahazar, Ex.P4/M.V.I report and
Ex.P.5/Wound Certificate and the evidence of P.W.1 has held that the
claimant did not have valid driving licence and also not wearing helmet at
the time of the accident, hence fixed the negligence on the claimant as 35%.
8. Though the Tribunal by awarding amounts under various heads,
arrived the compensation as Rs.3,87,550/-, reduced the amount to
Rs.2,51,907/- on account of the negligence fixed on the claimant as above
referred. Questioning the same, the present appeal has been filed by the
claimant.
9. We have heard the learned counsel for the appellant and the learned
counsel for the third respondent and also perused the materials available on
record.
10.In the instant case, the only question that arises for consideration
is whether the negligence fixed on the appellant by the Tribunal is
sustainable.
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11. From the perusal of the records, it is seen that the Tribunal fixed
contributory negligence at 35% on the claimant for the reasons that he was
not having valid driving licence and he hit the rear left side of the lorry.
12.Considering the submissions of the learned counsels appearing for
both sides and after perusal of the materials available on record, this Court
is of the opinion that for the non-possession of licence and non-wearing of
helmet, the negligence can be fixed at 20% as there is no material to show
that the claimant had hit against the lorry. Hence, we fix 20% negligence on
the part of the claimant.
13. With regard to quantum, we hereby confirm the award passed by
the Tribunal for Rs.60,000/- towards Pain and Suffering; Rs.80,000/-
towards partial Permanent disability by applying Rs.4,000/- per percentage
of disability [20x4,000] ; Rs.1,92,551/- (rounded of Rs.1,92,550/-) towards
Medical Expenses and Transportation Charges ; Rs.45,000/- towards partial
loss of earning and Rs.10,000/- towards Extra nourishment and damages to
clothing and articles. In total, the claimant is entitled to Rs.3,87,550/-.
Since this Court fixed 20% negligence on the part of the deceased, the
claimant is entitled to Rs.3,10,040/- (3,87,550 – 77,510) along with interest
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at the rate of 7.5% per annum from the date of claim petition till the date of
realization. The total compensation payable to the claimant is re-calculated
and tabulated below:
S. Heads under which Amount awarded Amount
No. amount is awarded by the Tribunal in awarded by the
by the Tribunal Rs. Tribunal in Rs.
1. Pain and suffering 60,000 60,000
2. Partial Permanent 80,000 80,000
disability
3. Medical Expenses 1,92,550 1,92,550
and transportation
charges
4. Partial Loss of 45,000 45,000
Earning
5. Extra Nourishment 10,000 10,000
and Damages to
Clothing and Articles
Total 3,87,550 3,87,550
Less 20% negligence - 3,10,040
14. In view of the above modifications, the Civil Miscellaneous
Appeal is partly allowed. The third respondent/Insurance Company is
directed to deposit the above modified award amount with accrued interest
and costs, less the amount already deposited, if any, within a period of six
weeks from the date of receipt of a copy of this judgment. On such deposit,
the appellant/claimant is permitted to withdraw the award amount, less the
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amount already withdrawn, if any, together with interest and costs. The
claimant shall pay necessary Court fee, if any on the enhanced
compensation. No costs.
[M.K.K.S., J.] [V.S.G., J.]
08.04.2022
Index : Yes / No
Speaking order: Yes/No
ms
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C.M.A.No.2456 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
ms
To
1. The IV Additional District and Sessions Judge,
Motor Accident Claims Tribunal,
Bhavani at Erode District.
2. The Section Officer,
V.R.Section,
High Court, Madras.
C.M.A.No.2456 of 2021
08.04.2022
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