Madras High Court
G.Mahendira Kumar vs S.Rajaram on 12 April, 2022
C.M.A.No.337 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.04.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
C.M.A. No.337 of 2022
1.G.Mahendira Kumar
... Petitioner/ Appellant
Vs
1.S.Rajaram
2.The Branch Manager
National Insurance Company Limited,
Branch Office, 1st Floor,
Sharadhamma Building,
Bye Pass Road, Hosur - 635109. ... Respondents/Respondents
PRAYER: Petition filed under Section 173 of the Motor Vehicle Act, to set
aside the award and enhance the compensation amount and fix the entire
liability on the 2nd respondent made in judgment and decree dated
25.07.2019 made in M.C.O.P.No.91 of 2015 on the file of the Motor
Accidents Claims Tribunal, Principal Sub Judge, Hosur by allowing this
CMA.
For Petitioner : Mr.S.P.Yuaraj
For Respondents : M/s R.Rathna Thara [R.2]
Not ready in notice [R.1]
1/6
https://www.mhc.tn.gov.in/judis
C.M.A.No.337 of 2022
JUDGEMENT
The claimant has filed this appeal seeking an enhancement of the
award passed by the Motor Accident Claims Tribunal, Principal Sub Judge,
Hosur in MCOP No.91 of 2015. The grievance of the appellant is that the
Tribunal has fixed 20% contributory negligence on the appellant, not on
account of rash and negligent driving but on the ground that he was driving
the vehicle without having a valid driving license. The appellant is also
aggrieved by the quantum awarded by the Tribunal below. This Court is not
traversing through the facts of the case as the appeal is restricted only to the
above short points.
2. Mr.S.P.Yuvraj, learned counsel appearing on behalf of the appellant
would contend that the Court has mulcted the petitioner with 20% liability
only on the ground that the he did not possess a driving licence to drive two
wheeler. The learned counsel would submit that the appellant has a licence
to drive a light motor vehicle but however, he did not have an endorsement
for riding a two wheeler and this has been found against him and has
resulted in contributory negligence of 20% being fixed on him.
https://www.mhc.tn.gov.in/judis
C.M.A.No.337 of 2022
3. He would rely on the Judgments of the Hon’ble Supreme Court
reported in 2018 at TN MAC 34 (SC) - Dinesh Kumar, J. @ Dinesh, J. Vs.
National Insurance Co. Ltd. & others. where the Hon’ble Supreme Court
while considering the case of contributory negligence of 40% being
fastened on the claimant since he had not produced his driving licence had
set aside the order fixing contributory negligence on the claimant therein.
He would submit that the facts of that case squarely applies to the facts of
the instant case and therefore, the order deserves to be set aside and the
contributory negligence mulcted on the appellant has to be definitely set
aside. He would further submit that the amount under the head of pain and
suffering, extra nourishment etc., and towards attender charges are very
meagre.
4. Mrs. Ratna Tara, learned counsel appearing on behalf of the
insurance company would submit that the appellant cannot be permitted to
be left scot free as he has violated the provisions of the Act and further the
compensation fixed is reasonable and does not require to be enhanced.
https://www.mhc.tn.gov.in/judis
C.M.A.No.337 of 2022
5. Heard the learned counsels and perused the records.
6. The case on hand is one where the claimant has produced the
driving licence but the licence does not give him the authority to ride a two
wheeler. Therefore, it is the case of no licence in so far as two wheeler is
concerned. Therefore, the facts of the case cited on the side of the appellant
claimant has to necessarily be distinquished can be distinct. This is a clear
case of violation of the provisions of the Act.
7. The claimant/appellant who has driven the two wheeler without
authorisation has to definitely be penalized as he has violated the provisions
of the Act. Therefore, instead of fixing a contributory negligence on him of
20% the same has reduced to 10%. The appellant has been an in patient for
about 10 days and there is no permanent disablement that has been caused
to the appellant by reason of the accident. The amounts under the head of
attender charges can be enhanced by a further sum of Rs.5,000/-. The
amount of compensation under the other heads does not require to be
altered. Therefore, the appeal is partly allowed and the award is enhanced to
a sum of Rs.2,08,500/-.
https://www.mhc.tn.gov.in/judis
C.M.A.No.337 of 2022
8. The insurance company shall pay a compensation of Rs.1,87,650/-.
Rs.20,850/- is deducted towards the contributory negligence at 10% which
has been fixed on the appellant. The insurance company shall deposit the
additional amount enhanced to the credit of M.C.O.P.No.91 of 2015 within a
period of four weeks from the date of receipt of a copy of this Judgement.
The amount so deposited can be withdrawn. On such deposit being made,
the respondent is permitted to withdraw the amounts deposited, along with
interest and costs, after adjusting the amount if any already withdrawn. No
costs.
12.04.2022
Index : Yes/No
Internet: Yes/No
Speaking / Non-Speaking
shr
To
1. Motor Accidents Claims Tribunal,
Principal Sub Judge, Hosur.
2.The Section Office,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.337 of 2022
P.T. ASHA, J,
shr
C.M.A. No.337 of 2022
12.04.2022
https://www.mhc.tn.gov.in/judis
