Madras High Court

The Branch Manager vs G.Balakrishnan Represented By on 22 August, 2022

                                                                        C.M.A.No.3572 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 22.08.2022

                                                      CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI
                                                   and
                                   THE HONOURABLE MR.JUSTICE S.SOUNTHAR


                                             C.M.A.No.3572 of 2021
                                           and C.M.P.No.20826 of 2021

                  The Branch Manager
                  Reliance General Insurance Co. Ltd.
                  1st floor, Dhanums Towers
                  Binny main road, Park road
                  Tiruppur – 641 601.                                     ... Appellant

                                                       Vs.
                  1.G.Balakrishnan represented by
                  natural guardian and his wife
                  Nithiya Priyanga

                  2.K.Prakash                                            ... Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                  Vehicles Act, 1988, against the judgment and decree dated 30.04.2021 made

                  in M.C.O.P.No.1886 of 2018 on the file of Motor Accident Claims Tribunal,

                  Special District Court, Tiruppur.


                  1/16


https://www.mhc.tn.gov.in/judis
                                                                                      C.M.A.No.3572 of 2021


                                               For Appellant     : Mrs.C.Bhuvanasundari

                                               For R1            :    Mr.K.Mayilsamy

                                                         JUDGMENT

(Judgment of the Court was delivered by V.M.VELUMANI,J.)

This Civil Miscellaneous Appeal has been filed by the

appellant/Insurance Company against the judgment and decree dated

30.04.2021 made in M.C.O.P.No.1886 of 2018 on the file of Motor Accident

Claims Tribunal, Special District Court, Tiruppur.

2.The appellant/Insurance Company is the 2nd respondent in

M.C.O.P.No.1886 of 2018 on the file of Motor Accident Claims Tribunal,

Special District Court, Tiruppur. The 1st respondent representing through

natural guardian and his wife S.Nithiya Priyanga, filed the said claim petition

claiming a sum of Rs.60,00,000/- as compensation for the injuries sustained

by him in the accident that took place on 02.07.2018.

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

3.According to the 1st respondent, on the date of accident i.e., on

02.07.2018 at about 5.15 P.M., while he was riding his Discover motorcycle

bearing Registration No.TN-41-AQ-8507 on Coimbatore to Pollachi Main

Road, near Kandha Mahal, from North to South direction, the 2nd respondent,

rider-cum-owner of Fascino two wheeler bearing Registration No.TN-41-AS-

8447, rode the same in a rash and negligent manner, dashed against the

motorcycle driven by the 1st respondent and caused the accident. In the

accident, the 1st respondent sustained head injury and grievous injuries all

over the body. Therefore, the 1st respondent has filed the above claim petition

claiming compensation against the 2nd respondent, rider-cum-owner of the

offending two wheeler and appellant/Insurance Company, insurer of the said

two wheeler.

4.The 2nd respondent, rider-cum-owner of offending two wheeler

remained exparte before the Tribunal.

5.The appellant/Insurance Company filed counter statement denying

the averments made in the claim petition and stated that the appellant has not

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

received any particulars from the 1st respondent such as FIR copy, policy and

driving license. The accident has occurred only due to negligence of the 1 st

respondent, rider of the motorcycle bearing Registration No.TN-41-AQ-8507.

The owner and insurer of the said motorcycle are not made as parties and

hence, the claim petition is bad for non-joinder of necessary parties. At the

time of accident, the 1st respondent did not wear helmet, which is in violation

of statutory provisions. Therefore, the appellant/Insurance Company is not

liable to pay any compensation to the 1st respondent. In any event, the

amount claimed by him is excessive and prayed for dismissal of the claim

petition.

6.Before the Tribunal, the 1st respondent examined his wife S.Nithya

Priyanga as P.W.1, one Ahamed Meeran, co-worker of the 1st respondent was

examined as P.W.2 and 13 documents were marked as Exs.P1 to P13. The

appellant/Insurance Company did not let in any oral and documentary

evidence. The disability certificate issued by the Medical Board is marked as

the Court document, Ex.X1.

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent riding by

the 2nd respondent, rider-cum-owner of the offending two wheeler bearing

Registration No.TN-41-AS-8447 and directed the appellant/Insurance

Company being the insurer of the said vehicle to pay a sum of Rs.39,87,957/-

as compensation to the 1st respondent.

8.Against the said award dated 30.04.2021 made in M.C.O.P.No.1886

of 2018, the appellant/Insurance Company has come out with the present

appeal.

9.The learned counsel appearing for the appellant/Insurance Company

contended that the Tribunal failed to conduct an impartial inquiry. P.W.1 and

P.W.2 are not eye-witnesses to the accident. The 1 st respondent did not

examine any eye-witness. The accident has occurred in front of the petrol

bunk. The 1st respondent, who was coming from petrol bunk, would have

avoided the accident, had he noticed the vehicle coming on his side. At the

time of accident, the 1st respondent was not wearing helmet and the Tribunal

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

failed to fix contributory negligence on the part of the 1st respondent for not

wearing helmet. The 1st respondent has stated in the claim petition in Column

No.11 that he suffered “Head Injury (old RTA)”. The Tribunal failed to

consider that 1st respondent suffered head injury in an earlier accident and

was not fit to ride a motorcycle. The 1st respondent has not produced any

document to show that he has to be represented by his wife. The Tribunal

failed to note that assessment of disability by the Medical Board is incorrect

as the Medical Board failed to distinguish the injuries sustained in the earlier

accident and this accident. The Tribunal erred in taking into consideration the

entire 85% disability as loss of earning capacity without converting the same

to whole body. The Tribunal in the absence of any materials with regard to

income of the 1st respondent, erroneously fixed excessive amount of

Rs.13,000/- as monthly income of the 1st respondent. The amounts awarded

by the Tribunal under different heads are excessive and prayed for setting

aside the award of the Tribunal and allowing the appeal.

10.The learned counsel appearing for the 1st respondent made

submissions in support of the award passed by the Tribunal and contended

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

that after the accident, the 1st respondent could not do any work as he was

doing earlier. The Tribunal has given valid reason for fixing negligence on

the 2nd respondent and awarding compensation by adopting multiplier

method. The total compensation granted by the Tribunal is not excessive and

prayed for dismissal of the appeal.

11.Heard the learned counsel appearing for the appellant as well as the

learned counsel appearing for the 1st respondent and perused the entire

materials on record.

12.It is the case of the 1st respondent that while he was riding his

Discover motorcycle bearing Registration No.TN-41-AQ-8507 on

Coimbatore to Pollachi Main Road, near Kandha Mahal, from North to South

direction, the 2nd respondent, rider-cum-owner of Fascino two wheeler

bearing Registration No.TN-41-AS-8447, rode the same in a rash and

negligent manner, dashed against the motorcycle driven by the 1st respondent

and caused the accident. In the accident, the 1st respondent suffered head

injury and grievous injuries all over the body. To substantiate this, the 1st

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

respondent examined his wife as P.W.1 through whom, he filed claim petition

and marked F.I.R as Ex.P1. F.I.R. is registered against the 2nd respondent. On

the other hand, it is the case of the appellant that accident has occurred due to

negligence on the part of the 1st respondent, who while coming out from the

petrol bunk failed to see the vehicle coming on his side and invited the

accident. To prove this, the appellant has not examined any witness

especially, the 2nd respondent. The Tribunal considering the materials placed

before it, F.I.R. and in the absence of any evidence by the appellant, held that

the accident has occurred due to rash and negligent riding by the 2nd

respondent and fastened the liability on the appellant. There is no error in the

said finding of the Tribunal warranting interference by this Court.

13.In the grounds raised in the present appeal (not in the counter

statement), the learned counsel appearing for the appellant contended that the

1st respondent did not suffer injuries in the accident that occurred on

02.07.2018 and the injuries he suffered were due to earlier accident. In

support of her contentions, the learned counsel appearing for the appellant

referred to averments in the claim petition. The learned counsel appearing for

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

the 1st respondent submitted that immediately after the accident on

02.07.2018, he was admitted in Dr.A.Krishnaraj Medical Foundation, Arun

Hospital, Pollachi, subsequently, on 04.07.2018, he was shifted to KMCH,

Coimbatore, filed two discharge summaries and marked the same as Ex.P10.

(i). In the first discharge summary issued by Dr.A.Krishnaraj Medical

Foundation, Arun Hospital, Pollachi, it was stated that he was admitted on

02.07.2018 and was discharged on 04.07.2018. In the Column in reason for

admission, it is stated as follows:

Patient brought semiconscious H/O – RTA, Two wheeler Vs Two wheeler while driving in two wheeler as a rider near Kandha Mahal – Kovai road around 4.50 pm on 2/7/18. H/O – (L) Ear bleeding (+) / Nasal bleeding (+). Patient came to Arun Hospital for management. F/H/P/HY – Nil relevant.

Further, in the Column in Final Diagnosis with ICD Code, it is stated that the

1st respondent sustained -

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

I) a) thin SDH in (R) Temporo Parietal Parenchyma,

b) Hemorrhagic contusion with mild line shift 4 mm,

II) a) Fracture Zygomatic arch (L),

b) Fracture Temporal bone (L),

c) Fracture Clavicle (L),

d) Fracture Ribs (L),

e) Fracture Scapula (L).

(ii).In the 2nd discharge summary issued by KMCH, Coimbatore, it was

stated that the 1st respondent was admitted on 04.07.2018 and discharged on

05.08.2018. In the Column in Final Diagnosis, it is stated that “Head Injury

(old RTA), right temporal subdural hemorrhage with contusion, left clavicle

fracture, left multiple rib fractures, multiple facial bone fractures, secondary

hypertension, post traumatic diabetes insipidus”.

(iii). The learned counsel appearing for the 1st respondent contended

that in the 2nd discharge summary, it was mentioned as “old RTA”. In view of

the fact that the 1st respondent was already admitted on 02.07.2018 at

Dr.A.Krishnaraj Medical Foundation, wherein it has been stated that injury is

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

“H/O RTA” and subsequently, when the 1st respondent was admitted in

KMCH, Coimbatore, it was recorded as “Old RTA”, the 1st respondent

suffered injuries only in the accident that occurred on 02.07.2018 and he was

not involved in any earlier accident. The said contention has considerable

force and is acceptable in view of the fact that appellant failed to plead and

prove that the 1st respondent has not suffered injuries in the accident in

question. As rightly contended by the learned counsel appearing for the 1st

respondent, Ex.P10 contains two discharge summaries, one is issued by

Dr.A.Krishnaraj Medical Foundation, Arun Hospital, Pollachi, saying that 1st

respondent was admitted on 02.07.2018 for the injuries in RTA, he was

treated as inpatient till 04.07.2018 and then shifted to KMCH, Coimbatore,

on the same day. In view of the above facts, the contention of the learned

counsel appearing for the appellant that the 1st respondent has not suffered

any injuries in the present accident, is not acceptable.

14.As far as quantum of compensation is concerned, the 1st respondent

was examined by the Medical Board, Tiruppur District and the Medical Board

certified that the 1st respondent has suffered 85% permanent disability. The

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

appellant has not let in any evidence to disprove the disability assessed by the

Medical Board. The Tribunal considering the disability certificate, which was

marked as Ex.X1, nature of injuries and evidence of P.W.1, held that 1st

respondent suffered 85% loss of earning capacity. At the time of hearing this

appeal, the learned counsel appearing for the appellant contended that the

Tribunal erred in granting compensation holding that 1st respondent suffered

85% loss of earning capacity as per the report of the Medical Board, instead

of converting the disability for whole body. According to the appellant,

percentage of disability fixed by the Tribunal for granting compensation for

loss of earning capacity is excessive and the Tribunal ought to have converted

the disability for whole body and granted compensation for loss of earning

capacity. On the other hand, the learned counsel appearing for the 1st

respondent contended that the 1st respondent has totally lost his earning

capacity, he is confined to a wheel chair and only his wife is taking care of

him in his normal activities including his basic needs. He further submitted

that the 1st respondent will appear before this Court for being observed by this

Court. In view of the rival submissions, we directed the 1st respondent to

appear before this Court on 08.08.2022. On 08.08.2022, the 1st respondent

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

appeared before this Court, he is confined to a wheel chair and we observed

that he is totally disabled. In view of the above, there is no error in the award

of the Tribunal granting compensation for 85% disability as per the report of

the Medical Board by adopting multiplier method, holding that he suffered

85% loss of earning capacity.

15.The contention of the learned counsel appearing for the appellant is

that 1st respondent was not wearing helmet at the time of accident, which has

resulted in serious head injuries and 1st respondent has also contributed

negligence for the injuries. The said contention has considerable force. This

Court, in number of cases has fixed 15% contributory negligence on the part

of the rider of the two wheeler for not wearing helmet at the time of accident.

The 1st respondent has not denied that he was not wearing helmet at the time

of accident. Therefore, we fix 15% contributory negligence on the part of 1 st

respondent for not wearing helmet at the time of accident. The Tribunal

considering the nature of injuries and disability suffered by the 1st respondent,

awarded compensation under different heads, which are not excessive and the

same are hereby confirmed. The appellant is liable to pay only 85% of the

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

compensation awarded by the Tribunal. Thus, the compensation awarded by

the Tribunal is modified as follows:

                    S.No          Description    Amount          Amount          Award
                                                awarded by    awarded by this confirmed or
                                                 Tribunal         Court       enhanced or
                                                   (Rs)            (Rs)        granted or
                                                                                reduced
                   1.         Loss of earning     29,70,240        29,70,240 Confirmed
                   2.         Medical bills        8,17,717         8,17,717 Confirmed
                   3.         Pain and               50,000           50,000 Confirmed
                              suffering
                   4.         Extra                  50,000           50,000 Confirmed
                              nourishment
                   5.         Transportation         25,000           25,000 Confirmed
                   6.         Attendant              25,000           25,000 Confirmed
                              charges
                   7.         Loss of                50,000           50,000 Confirmed
                              amenities
                              Total               39,87,957
                              85% of the                           33,89,763 Reduced by
                              award amount                                   Rs.5,98,194/-

                              15% negligence                                (39,87,957 (-)
                                             st
                              fixed on the 1                                33,89,763)
                              respondent

16.With the above modification, the Civil Miscellaneous Appeal is

partly allowed. The appellant/Insurance Company is directed to deposit a

sum of Rs.33,89,763/- being 85% of the award amount along with interest at

https://www.mhc.tn.gov.in/judis C.M.A.No.3572 of 2021

the rate of 7.5% per annum from the date of petition till the date of deposit,

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 1st

respondent is permitted to withdraw the award amount now determined by

this Court, along with interest and costs, after adjusting the amount if any,

already withdrawn. The appellant/Insurance Company is permitted to

withdraw the excess amount lying in the deposit to the credit of

M.C.O.P.No.1886 of 2018 on the file of Motor Accident Claims Tribunal,