Madras High Court
Manager vs Thavamani on 21 January, 2022
CMA No.1148 of 2021
and CMP No.5879 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Civil Miscellaneous Appeal No.1148 of 2021
and CMP No. 5879 of 2021
1. Manager,
United India Insurance Co. Ltd.,
Branch Office 3, Arjuna Tower,
No.248/164 Cherry Road,
Salem District 636 001.
2. Manager
United India Insurance Co. Ltd.,
Branch Office, SRS Tower,
No.595, Mettur Main Raod,
Bhavani Erode District 638 301. ... Appellants
Vs.
1. Thavamani
2. P. Balasubramaniam,
Residing at Prop: Sivambiga Road,
Travels, 22/1 Saradha College Road,
Adaikala Nagar, Salem District 636 007. ... Respondents
(Respondent 2 set exparte at Trial Court,
hence notice may be dispensed with)
1/9
https://www.mhc.tn.gov.in/judis
CMA No.1148 of 2021
and CMP No.5879 of 2021
Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act,
1988, to set aside the decree and judgment dated 13.10.2020 made in
MCOP No.359 of 2015 on the file of Motor Accident Claims Tribunal, the
Subordinate Judge of Bhavani.
For Appellants : Mr. C.Paranthaman
For Respondents : Mr. P.Dhananjayan, for R1
JUDGMENT
The Insurance Company challenges the award of a sum of
Rs.14,16,665/- for the injuries suffered by the claimant in a road accident
that occurred on 07.10.2014.
2. According to the claimant, when he was riding his motor cycle
bearing Registration No.TN-32-AC-5065 on Coimbatore Salem Main Road
near Komarapalayam, the driver of the bus bearing Registration No. TN-30-
AM-0777, drove the bus in a rash and negligent manner and without any
indication turned to the right and dashed against the petitioner’s two-
wheeler. As a result of the accident, the petitioner had suffered fractures in
his right hand humerus, elbow and ulna radius. The claimant would further
https://www.mhc.tn.gov.in/judis
CMA No.1148 of 2021
and CMP No.5879 of 2021
contend that an FIR was registered against the driver of the bus. Contending
that as a result of the accident, he is unable to pursue his avocation as a
mason and hence, he has suffered financial loss, the claimant sought for a
compensation of Rs.20,00,000/-.
3. The claim was resisted by the Insurance Company contending
that the accident did not occur in the manner suggested by the claimant. It
was the claimant who was responsible for the accident. He did not possess a
valid driving licence and he was not wearing a helmet also. He was driving
an uninsured two-wheeler. The quantum of compensation claimed was
termed as excessive.
4. Before the Tribunal, the claimant examined himself as P.W.1
and one Dr. R.Krishnasamy, was examined as P.W.2, Exhibits P1 to P13
were marked. The Disability Certificate was marked as Ex.C1.
5. The Insurance Company did not choose to let in any evidence.
The Tribunal upon examination of the evidence concluded that the bus driver
https://www.mhc.tn.gov.in/judis
CMA No.1148 of 2021
and CMP No.5879 of 2021
was responsible for the accident. The Tribunal relied upon FIR, the
Inspection Mahajar and the sketch to come to the conclusion that it was the
negligence of the driver of the bus that caused the accident.
6. On the quantum, the Tribunal concluded that the disability
caused was 45% and the same is a functional disability. Therefore, the
Tribunal adopted a multiplier method to arrive at the compensation. The
Tribunal fixed Rs.8,000/- as the notional monthly income of the claimant,
added 40% towards future prospects and fixed the monthly income at
Rs.11,200/-. Adopting a multiplier of 18, in view of the age of the claimant
namely 22 years, the Tribunal fixed the total loss of income at
Rs.10,88,640/-. The Tribunal also awarded the following amounts under the
following heads.
S.No. Heads Amount (Rs.)
1 Total loss of income 10,88,640/-
2 Compensation for pain and sufferings 40,000/-
3 Extra Nourishment 5,000/-
4 Transportation to Hospital 10,0000/-
5 Attender Charges 5,000/-
https://www.mhc.tn.gov.in/judis
CMA No.1148 of 2021
and CMP No.5879 of 2021
S.No. Heads Amount (Rs.)
6 Medical Expenses (based on Bills) 2,68,025/-
Total 14,16,665/-
7. Mr.Paranthaman, learned counsel appearing for the Insurance
Company would vehemently contend that the Tribunal was not right in
adopting future prospects in a case of injury. Adoption of future prospects in
a case of injury cannot be outright rejected. In a case where it is shown that
there is a functional disability and the earning power of the claimant is
reduced because of such functional disability there is nothing wrong in the
Tribunal adopting future prospects. Even assuming that the adoption of
future prospects in a disability case not justified on the facts of this case, I
am of the opinion that the Tribunal has adopted the notional income only at
Rs.8,000/- which is very low and therefore, the total compensation arrived at
by the Tribunal, even after adopting future prospects at 40% seems to be just
and reasonable. Hence, I do not see the fact that the Tribunal has adopted
future prospects as a ground to interfere with the award. The amounts
awarded under the other heads are also reasonable.
8. Mr.Paranthaman, learned counsel would attempt to fault the
https://www.mhc.tn.gov.in/judis
CMA No.1148 of 2021
and CMP No.5879 of 2021
Tribunal for not deducting any amount towards contributory negligence. I
do not think, I can entertain an argument on contributory negligence by the
counsel for the Insurance Company in the case on hand, inasmuch as, the
Insurance Company has not attempted to lead evidence. The Insurance
Company could have examined the driver of the bus which was insured with
it, to prove negligence on the part of the claimant. That has not been done.
The learned counsel for the Insurance Company would want this Court to
assume negligence on the part of the claimant. I do not think such an
approach can be adopted.
9. If the Insurance Company wants to reduce or avoid its liability
on the ground of contributory negligence, it is incumbent upon the Insurance
Company to lead evidence to establish negligence on the part of the
claimant, if the Insurance company fails to lead evidence, I do not think the
Insurance Company can be allowed to argue on contributory negligence
except where it is a case of a statutory violation like non wearing of helmet
or non possession of license.
https://www.mhc.tn.gov.in/judis
CMA No.1148 of 2021
and CMP No.5879 of 2021
10. Though an attempt was made by the Insurance Company to
contend that the claimant did not possess a license, the same was not
established, the Tribunal has held that possession of the license is not of any
significant effect, since it has been held that the negligence of the bus driver
alone was responsible for the accident. I do not think the said finding of the
Tribunal warrants interference particularly in the absence of any evidence on
the part of the Insurance Company.
11. Therefore, I do not see any merit in the Appeal, the Appeal
fails and it is accordingly dismissed. The claimant is permitted to withdraw
the entire compensation deposited by the Insurance Company.
Consequently, the connected miscellaneous petition is closed. There shall be
no order as to costs.
21.01.2022
Index: Yes/No
Internet: Yes
speaking order/Non speaking order
jv
https://www.mhc.tn.gov.in/judis
CMA No.1148 of 2021
and CMP No.5879 of 2021
To
1. The Sub Judge,
Motor Vehicle Accident Claims Tribunal,
Bhavani.
2. The Section Officer,
V.R.Section,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
CMA No.1148 of 2021
and CMP No.5879 of 2021
R.SUBRAMANIAN, J.
jv
Civil Miscellaneous Appeal No.1148 of 2021
and CMP No. 5879 of 2021
21.01.2022
https://www.mhc.tn.gov.in/judis
