Elumalai vs Sampath
2022 Latest Caselaw 8481 Mad

                                                            1

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED:     22.04.2022

                                                       CORAM:

                                  THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

                                                  CMA No. 1329 of 2018

                      Elumalai                                                  ... Petitioner

                                                           Vs

                      1. Sampath

                      2. Royal Sundaram Alliance Insurance Co. Ltd.,
                         No.21, Pattuos Road
                        Katpadi Road,
                        Virudampet.                                       ...Respondents

                      Prayer: Civil Miscellaneous Appeal filed under Section 173 of the M.V.
                      Act, 1988 against the Judgment and Decree dated 11.07.2017 and made in
                      M.A.C.T.O.P.No. 3076 of 2012 on the file of the Motor Accident Claims
                      Tribunal, II Court of Small Causes, Chennai.
                                                           ***
                                      For Appellant    : Mr. F.Terry Chella Raja

                                      For 2nd Respondent: Mr.G.Vasudevan




https://www.mhc.tn.gov.in/judis
                                                               2

                                                          JUDGMENT

The claimant in M.C.O.P.No. 3076 of 2012 aggrieved by an order

dated 11.07.2017 wherein the II Judge, Court of Small Causes, had

dismissed M.C.O.P.No. 3076 of 2012 as the appellant herein.

2. M.C.O.P.No. 3076 of 2012 had been filed under Section 163-A of

the Motor Vehicles Act, read with Rule 3 of the Motor Accident Claims

Tribunal Rules, seeking compensation for the injuries suffered by the

claimant on 06.06.2011.

3. A brief perusal of the facts reveal that on 06.06.2011 at around

12.45 p.m., the claimant was riding a motor cycle bearing Registration No.

TN-32-F-2827 when the driver of the lorry bearing Registration No. TN-

23-AL-8624 had suddenly applied brake and the petitioner who was driving

his motor cycle in the rear of the lorry, had dashed against the lorry and had

sustained injuries. The nature of the injuries suffered by the petitioner are

as follows:-

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“Fracture of left tibia, Grade-3, Compound Fracture of zygoma and head injuries.”

4. Claiming compensation under the provisions under Section 163-A

of the Motor Vehicles Act, a claim petition had been filed. It must be stated

that under Section 163-A of the Motor Vehicles Act, there is no necessity to

prove negligence on the part of the offending vehicle.

5. In the instant case, the claimant was driving his motor vehicle and

was in the rear of the lorry and had dashed against the lorry. When such an

accident occurs, a natural presumption arises that the driver of the vehicle

which comes at the back is, to a little extent, had atleast contributed to the

accident. It is for that reason, a petition was filed under Section 163-A.

6. The distinguishing feature between Section 163-A of the Motor

Vehicles Act, 1988 and Section 166 of the Motor Vehicles Act 1988 is that

if a petition is filed under Section 166 of the Motor Vehicles Act, then a

burden is cast on the claimant to prove negligence on the part of the

offending vehicle and thereby, seek the insurer of the offending vehicle to

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indemnify the insured and bear the compensation which is granted by the

Tribunal.

7. The Tribunal in the instant case, had unfortunately proceeded on

the basis that the claim petition had been filed under Section 166 of the

Motor Vehicles Act, 1988 and had thereafter framed issues and the first

issue was with respect to the manner in which the accident occurred and

whether it was due to the rash and negligent driving of the lorry bearing

Registration No. TN-23-AL-8624. By focusing on this particular aspect,

unfortunately the Tribunal as a matter of fact, misdirected itself and it is to

be stated that the claimant has been put to more suffering by the nature of

the order passed. Quite apart from the physical injury suffered, the order

passed itself should have caused some mental agony since while examining

that particular issue, the Tribunal had come to a finding that the accident

did not occur owing to the negligence of the driver of the lorry and had

therefore dismissed the claim petition in entirety.

8. I really hope that the Tribunal had given some attention to the

provision under which the claim petition had been filed and if it had been

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determined that the claim petition had actually been filed under Section

163-A of the Motor Vehicles Act then, the said entire exercise would have

been avoided and compensation could have been granted at the earliest

instance to the claimant and which would also not have necessitated the

claimant to file this Appeal which has been pending in this Court for the

past 4 years. Effectively for the accident suffered in the year 2012, the

claimant had not benefitted any amount and has not been compensated for

the injuries suffered.

9. I must place my appreciation on the sanguine manner in which the

learned counsel for the appellant had addressed the issue though the

counsel could have taken umbrage on the said order of the Tribunal.

10. Heard Mr. F.Terry Chella Raja, learned counsel for the appellant

an d Mr.G.Vasudevan, learned counsel for the respondent.

11. Both the learned counsels were of the same opinion that the

Tribunal should have examined the claim petition under Section 163-A of

the Motor Vehicles Act, 1980 and therefore should not have entered into a

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discussion on the aspect of negligence. The Act is inbuilt in nature and

schedule II of the Act gives the compensation to be granted when a petition

is preferred under Section 163-A of the Motor Vehicles Act, 1988.

12. The learned counsel for the appellant insisted that a maximum

amount of Rs.40,000/- should be granted, but this has been objected by the

learned counsel for the respondent, who pointed out that the claimant was a

mason and PW-2 had assessed the total disability at 65%.

13. In view of the submissions made by both the sides, I determine

that a sum of Rs.35,000/- per annum would be just as the loss of earning

capacity to the claimant and determine that a multiplier '17' can be adopted

owing to the fact that the claimant was aged about 34 years. This would

indicate that the loss of earning capacity would be 35,000 x 12 x 17 =

1,19,000/-. I would grant a sum of Rs.5,000/- towards pain and suffering

which would indicate the total compensation payable would be

Rs.1,24,000/-.

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14. The second respondent is directed to deposit the said amount

together with interest at the rate of 7.5% per annum from the date of filing

of the petition till date of deposit within a period of six weeks from the date

of receipt of a copy of this order. On such deposit, the appellant/claimant is

permitted to withdraw the award amount. No order as to costs.

15. In fine, the Appeal is allowed.

22.04.2022

Index:Yes / No Speaking / Non-Speaking order vsg

To

1. II Court of Small Causes Motor Accident Claims Tribunal Chennai.

2.The Section Officer, VR Section, Madras High Court, Chennai.

https://www.mhc.tn.gov.in/judis

C.V.KARTHIKEYAN, J.

vs

CMA No. 1329 of 2018

22.04.2022

https://www.mhc.tn.gov.in/judis