Madras High Court
D.Prabhakar vs S.Manjula on 19 January, 2022
C.M.A.No.617 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.617 of 2014
D.Prabhakar .. Appellant
Vs.
1.S.Manjula
2.United India Insurance Company Limited,
No.45, Arcot Road,
Saligramam,
Chennai – 600 098. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated 05.11.2013
made in M.C.O.P.No.248 of 2011 on the file of the Motor Accident Claims
Tribunal, III Additional District Court, Poonamallee, Tiruvallur.
For Appellant : Mr.K.Varadha Kamaraj
For R2 : Mr.D.Bhaskaran
JUDGMENT
[The matter is heard through “Video Conferencing”]
This Civil Miscellaneous Appeal has been filed against the award dated
05.11.2013 made in M.C.O.P.No.248 of 2011 on the file of the Motor
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Accident Claims Tribunal, III Additional District Court, Poonamallee,
Tiruvallur.
2.The appellant is the claimant in M.C.O.P.No.248 of 2011 on the file of
the Motor Accident Claims Tribunal, III Additional District Court,
Poonamallee, Tiruvallur. He filed the above said claim petition, claiming a sum
of Rs.3,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 06.02.2011.
3.According to the appellant, on 06.02.2011 at about 01.15 P.M., while
he was traveling in an auto bearing Registration No.TN 07 AL 6619 from
Avadi to Ambattur on the CTH Road near Vaishnavi Temple, an unknown
vehicle hit the auto and due to the said impact, the Auto hit another vehicle
which was proceeding in front of the auto and due to the same, the appellant
sustained communited fracture of right patella, lacerated wound in upper lip,
lower lip, right nostril and right eye and has taken treatment as inpatient at The
RMO Essvee Hospital, Ambattur, Chennai from 06.02.2011 to 15.02.2011.
Therefore, the appellant filed the above said claim petition claiming a sum of
Rs.3,00,000/- as compensation against the respondents being the owner and
insurer of the auto respectively.
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C.M.A.No.617 of 2014
4.The 1st respondent-owner of the auto remained exparte before the
Tribunal.
5.The 2nd respondent-Insurance Company being the insurer of the auto
filed counter statement and denied all the averments made by the appellant.
The 2nd respondent denied the manner of accident as alleged by the appellant.
According to 2nd respondent, on the date of accident, the driver of the auto was
driving the same in a slow speed observing the traffic rules and regulations
from Avadi to Ambattur, near Vaishnavi Temple. At that time, one unknown
vehicle hit the auto and due to the said impact, the appellant suddenly got
down from the running auto and invited the accident. Therefore, the accident
has occurred only due to the negligence on the part of the appellant and hence,
the 2nd respondent is not liable to pay any compensation to the appellant. The
1st respondent's auto was not insured with the 2nd respondent at the time of
accident and also the driver of the auto was not possessing valid driving license
on the date of accident. The appellant also contributed to the accident and
hence, contributory negligence has to be fixed on the part of the appellant. The
2nd respondent denies the age, avocation, income and nature of injuries
sustained by the appellant. In any event, the quantum of compensation claimed
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C.M.A.No.617 of 2014
by the appellant is highly excessive and prayed for dismissal of the claim
petition.
6.Before the Tribunal, the appellant examined himself as P.W.1,
Dr.Saichandran was examined as P.W.2 and 7 documents were marked as
Exs.P1 to P7. The 2nd respondent-Insurance Company examined one
Maharajan as R.W.1 and marked Investigation Report as Ex.R1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred due to the negligence of both
unknown vehicle and auto, fixed 75% negligence on the part of the driver of
the unknown vehicle, 25% negligence on the part of the driver of the auto
belonging to 1st respondent, awarded a sum of Rs.2,45,353/- as compensation
to the appellant and directed the respondents 1 & 2 to jointly or severally pay a
sum of Rs.61,338/- being 25% of the award amount as compensation to the
appellant.
8.Challenging the portion of the award fixing 25% negligence on the part
of the driver of 1st respondent as well as for enhancement of compensation
granted by the Tribunal in the award dated 05.11.2013 made in
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C.M.A.No.617 of 2014
M.C.O.P.No.248 of 2011, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant contended that the
Tribunal erroneously fixed only 25% negligence on the part of the driver of the
auto belonging to 1st respondent. The Tribunal ought to have fixed entire
negligence on the part of the driver of the auto belonging to 1st respondent as
there is no negligence on the part of the appellant and he is only a passenger in
the said auto. The Tribunal ought to have applied the theory of composite
negligence and fixed entire negligence on the part of the driver of the auto and
awarded compensation. The appellant sustained grievous injuries in the
accident and proved the same by examining himself as P.W.1, Dr.Saichandran
as P.W.2 and by marking documents. P.W.2/Doctor examined the appellant
and certified that the appellant suffered 50% disability and issued
Ex.P6/disability certificate to that effect. But, the Tribunal has awarded a
meagre amount of Rs.1,00,000/- for 50% disability at the rate of Rs.2,000/- per
percentage of disability. The appellant has taken treatment as inpatient at The
RMO Essvee Hospital, Ambattur, Chennai for 10 days from 06.02.2011 to
15.02.2011. The amounts awarded by the Tribunal towards pain and
sufferings, extra nourishment and transportation are meagre. The Tribunal
failed to award any amount towards loss of amenities and prayed for fixing
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C.M.A.No.617 of 2014
entire negligence on the part of the driver of the auto belonging to 1st
respondent as well as for enhancement of compensation.
10.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the accident has occurred only due to the
negligence on the part of the driver of unknown vehicle and there is no
negligence on the part of the driver of the auto belonging to 1st respondent.
Therefore, the Tribunal ought to have fixed entire negligence on the part of the
driver of the unknown vehicle. The appellant sustained only simple injuries in
the accident and hence, a sum of Rs.1,00,000/- awarded by the Tribunal
towards disability is not meagre. The Tribunal considering entire materials on
record, has awarded compensation under different heads and the same is not
meagre 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 2nd respondent and perused the entire
materials on record.
12.From the materials on record, it is seen that according to appellant
while he was travelling as passenger in the auto belonging to 1st respondent, an
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C.M.A.No.617 of 2014
unknown vehicle hit the auto and due to the said impact, the auto in which the
appellant was travelling hit another vehicle and due to the same, the appellant
sustained injuries. According to the appellant, the accident occurred due to the
negligence of the driver of the auto belonging to 1st respondent as well as the
driver of the unknown vehicle. The appellant as P.W.1 deposed that auto
capsized due to rash and negligent driving by the driver of the auto and driver
of unknown vehicle. It is the case of the 2nd respondent-Insurance Company
that when an unknown vehicle hit the auto from behind, the appellant jumped
from the auto and sustained injuries. The 2nd respondent has not let in any
eyewitness to substantiate their case. They examined one Maharajan as R.W.1
and marked only investigation report. The Tribunal considering the pleadings
and evidence of appellant and documents filed by him, held that negligence on
the part of the unknown vehicle which hit the auto from behind is more and
fixed 75% negligence on the part of the driver of the unknown vehicle and 25%
negligence on the part of the driver of the auto. The Tribunal considering the
averments in the claim petition and evidence of appellant, fixed negligence on
both the drivers and there is no error in fixing negligence on the part of the
driver of unknown vehicle as well as on the part of the driver of auto belonging
to 1st respondent.
13.As far as quantum of compensation is concerned, it is the case of the
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C.M.A.No.617 of 2014
appellant that in the accident he sustained communited fracture of right patella,
lacerated wound in upper lip, lower lip, right nostril and right eye and multiple
injuries all over the body. To prove the nature of injuries and disability suffered
by him, the appellant examined himself as P.W.1 and examined Dr.Saichandran
as P.W.2. P.W.2/Doctor examined the appellant and certified that appellant
suffered 50% disability and issued Ex.P6/disability certificate to that effect.
The Tribunal considering the evidence of P.W.2/Doctor and Ex.P6/disability
certificate, has awarded a sum of Rs.1,00,000/- for disability at the rate of
Rs.2,000/- per percentage of disability. The accident is of the year 2011 and a
sum of Rs.2,000/- per percentage of disability awarded by the Tribunal is
meagre. Considering the year of accident, the appellant is granted a sum of
Rs.3,000/- per percentage of disability. Thus, the compensation awarded by the
Tribunal towards disability is enhanced to Rs.1,50,000/- (Rs.3,000/- X 50% of
disability).
14.It is the further case of the appellant that at the time of accident, he
was aged 25 years, working as Assistant Commercial Executive at Usha
International Private Limited, Chennai and was earning a sum of Rs.13,500/-
per month. The appellant has not produced any documentary evidence to prove
his avocation and income. In the absence of any evidence with regard to
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C.M.A.No.617 of 2014
avocation and income, the Tribunal considering the year of accident, age and
nature of work done by the appellant fixed a sum of Rs.7,500/- per month as
notional income of the appellant and awarded compensation towards loss of
income for three months. The accident occurred in the year 2011. Considering
the year of accident, age and nature of work done by the appellant, a sum of
Rs.8,000/- per month is fixed as notional income of the appellant. Due to the
injuries sustained by the appellant in the accident, he would not have attended
his work atleast for a period of five months. Thus, the compensation awarded
by the Tribunal towards loss of income is enhanced to Rs.40,000/- (Rs.8,000/-
X 5 months). The appellant has taken treatment as inpatient at The RMO
Essvee Hospital, Ambattur, Chennai for 10 days from 06.02.2011 to
15.02.2011. The Tribunal has not awarded any amount towards attendant
charges and loss of amenities. Considering the period of treatment taken by the
appellant, he is entitled to a sum of Rs.10,000/- towards attendant charges.
Considering the nature of injuries and disability suffered by the appellant, he is
entitled to a sum of Rs.15,000/- towards loss of amenities. The Tribunal has
not awarded any amount towards damages to clothes. The appellant is entitled
to a sum of Rs.1,000/- towards damages to clothes. The amounts awarded by
the Tribunal under other heads are just and reasonable and hence, the same are
hereby confirmed. Thus, the compensation awarded by the Tribunal is modified
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C.M.A.No.617 of 2014
as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability 1,00,000/- 1,50,000/- Enhanced
2. Pain and sufferings,
extra nourishment & 50,000/- 50,000/- Confirmed
transportation
3. Medical expenses 72,853/- 72,853/- Confirmed
4. Loss of Income 22,500/- 40,000/- Enhanced
5. Attendant charges - 10,000/- Granted
6. Loss of amenities - 15,000/- Granted
7. Damages to clothes - 1,000/- Granted
Total Rs.2,45,353/- Rs.3,38,853/- Enhanced by
Rs.93,500/-
25% of the award Rs.61,338/- Rs.84,713/- (Rs.3,38,853/-
amount -
Rs.2,45,353/-)
15.In the result, this Civil Miscellaneous Appeal is partly allowed and
the total compensation awarded by the Tribunal at Rs.2,45,353/- is hereby
enhanced to Rs.3,38,853/- together with interest at the rate of 7.5% per annum
from the date of petition till the date of deposit. The respondents 1 & 2 are
jointly or severally directed to deposit 25% of the award amount, (i.e.,
Rs.84,713/-) now determined by this Court, along with 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, to the credit of M.C.O.P.No.248 of
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C.M.A.No.617 of 2014
2011 on the file of the Motor Accident Claims Tribunal, III Additional District
Court, Poonamallee, Tiruvallur. On such deposit, the appellant is permitted to
withdraw the award amount, now determined by this Court, along with interest
and costs, less the amount if any, already withdrawn by making necessary
applications before the Tribunal. No costs.
19.01.2022
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Index : Yes / No
Internet : Yes / No
To
1.The learned III Additional District Judge,
Motor Accident Claims Tribunal,
Poonamallee,
Tiruvallur.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.617 of 2014
V.M.VELUMANI, J.
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C.M.A.No.617 of 2014
19.01.2022
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