Madras High Court
The Branch Manager vs K.C.Arulmani ... 1St on 7 July, 2022
C.M.A.No.40 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.No.40 of 2022
and CMP.No.286 of 2022
The Branch Manager
Shriram General Insurance Company Limited
Front Portion, No.5F, Sachin Plaza,
Reddiyar Block No.1
Salem – 636 016. ... Appellant / 2nd Respondent
Vs
1.K.C.Arulmani ... 1st Respondent / Petitioner
2.M/s.Shri Vasavi Match House
No.1/311, Mill Medu
Errahalli, Kaveripattinam Post
Krishnagiri Taluk and District. ... 2nd Respondent /1st Respondent
3.Punyavant Namdeo Khatkale ... 3rd Respondent / 3rd Respondent
4.The Branch Manager
IFFCO Tokio General Insurance Co. Ltd.
Branch Office, Near Nitin Company
Almeida Road, Panch Pakhadi, Thane
Maharastra State. ... 4th Respondent / 4th Respondent
1/14
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C.M.A.No.40 of 2022
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, praying to set aside the decree and judgment dated
20.07.2020 made in M.C.O.P.No.474 of 2017 on the file of Motor Accident
Claims Tribunal, Special Sub Court, Krishnagiri and to dismiss the claim
for compensation.
For Appellant : Mr.S.Dhakshinamoorthy
For Respondent : Mr.S.P.Yuvaraj [R1]
Mr.J.Michael Visuvasam [R4]
JUDGMENT
The second respondent-Insurance Company is the appellant before
this Court challenging the award passed in M.C.O.P.No.474 of 2017 by the
Motor Accident Claims Tribunal, Special Sub Court, Krishnagiri. The
parties are referred in the same array as before the Tribunal.
2. It is the case of the petitioner who is aged about 51 years that he
was working as a Muzdhoor in the Tamil Nadu Electricity Board and
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C.M.A.No.40 of 2022
earning a monthly income of Rs.15,000/-. On 13.05.2016, when he was
proceeding on his Honda Splendour Pro-motor cycle bearing registration
No.TN24-R 0308 cautiously, keeping to the extreme left of the road, a
TATA ACE milk van bearing Registration No.TN 21-E-7183 belonging to
the first respondent and insured with the second respondent (appellant
herein) came in the opposite direction and hit the petitioner, as a result of
which, the petitioner fell down. At that time, the trailer lorry bearing
Registration No.MH 46-H-4135 belonging to the third respondent and
insured with the four respondent, which came in rash and negligent manner
hit the petitioner who was then lying on the road and caused grievous
injuries to his upper and lower limbs. The petitioner was initially taken to
the Government Hospital, Uthangarai and thereafter he was referred to
Rajeswari Manoharam Multispeciality Hospital, Dharamapuri, for further
treatment. Subsequently, he got admitted in Ganga Medical Centre and
Hospital at Coimbatore as an inpatient from 19.05.2016 to 11.06.2016,
where he underwent an operation for fracture of left humerus end elbow.
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C.M.A.No.40 of 2022
3. The petitioner has filed the above MCOP claiming compensation
of a sum of Rs.10,00,000/- for the injuries sustained by him in the accident
both against the owner and insurer of TATA ACE milk van as well as the
owner and insurer of the lorry.
4. The second respondent-Insurance Company had filed a counter
inter alia contending that the TATA ACE milk van was travelling on the
right side of the road and it was the petitioner who had driven his bike in a
rash and negligent manner, lost his control, swerved to the right crossed
over to the other side of the road and thereafter hit the first respondent's
vehicle and invited the accident. The accident had occurred solely on
account of rash and negligent driving of the petitioner. The petitioner is
stated to have sustained injury owing to the collision with the third
respondent's vehicle and not due to the first respondent vehicle. It is also
averred in the counter that if the Court were to come to a conclusion that it
was a case of composite negligence, then the apportionment should be
30:70, since it is the trailer which was responsible for the accident and the
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C.M.A.No.40 of 2022
injuries.
5. Both the owners of the vehicles had not entered appearance and
hence, they were set exparte by the Tribunal.
6. The fourth respondent, insurer of the trailer lorry had filed a
counter contending that the negligence was squarely on the TATA ACE
milk van.
7. The Tribunal below after considering the evidence on record, came
to the conclusion that both TATA ACE van as well as the trailer lorry were
responsible for the accident and it fixed the liability at 70% on respondents
1 and 2; and 30% on the respondents 3 and 4, and it awarded a
compensation of Rs.6,41,893/- and directed the insurer of the first
respondent and insurer of the third respondent (2nd & 4th respondent before
Tribunal) to pay the compensation amount to the petitioner with interest.
The break-up details are as below :
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C.M.A.No.40 of 2022
Heads of compensation Amount awarded by
Tribunal (Rs.)
Loss of earning 4,14,375/-
Medical Expenses 1,05,518/-
Transportation charges 10,000/-
Transportation and Attendant charges 15,000/-
Pain and suffering 48,000/-
Social Amenities 48,000/-
Damages to cloth & articles 1,000/-
Total : 6,41,893/-
8. Insofar as awarding the compensation under the head of loss of
earning, the Tribunal, considering the year of accident and the age of the
petitioner fixed the notional income at Rs.8,500/-. It applied the ratio in
Sarala Varma Vs. Delhi Transport Corporation [2009 (2) TNMAC 2 SC]
and arrived at the notional monthly income of Rs.10,625/- after adding
25% to it i.e., Rs.8,500 +Rs. 2,125 (25/100 x 8,500). It assessed the
petitioner's functional disability at 25%, and on adopting the multiplier of
13, it granted a sum of Rs.4,14,375/- (Rs.10,625/- x 12 months x 25/100 x
13) under the head of loss of earning capacity. It also awarded on the other
heads as stated above.
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C.M.A.No.40 of 2022
9. Challenging the said award, the second respondent has filed the
appeal. The appeal is filed on the following grounds :
(a) The Tribunal ought to have apportioned the negligence equally on
both the vehicles involved in the accident, i.e., 50:50 instead of
70:30.
(b) The Tribunal has not considered the fact that the petitioner too had
contributed to the accident.
(a) The petitioner has not sustained the disability which has caused a
loss of earning capacity and therefore the adoption of multiplier
method is wrong.
10. The learned counsel for the fourth respondent would submit that
they have not challenged the award of the Tribunal mulcting them with
negligence of 30% and his contention is that the accident was primarily on
account of the driver of the TATA ACE milk van and therefore, it is for the
second respondent to compensate the petitioner to an extent of 70%.
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C.M.A.No.40 of 2022
11. The counsel appearing for the petitioner would submit that the
petitioner cannot be held responsible for the accident as he was driving on
the extreme left side, and it was only on account of the rash and negligent
driving of the first respondent's driver that the accident had taken place and
therefore, there cannot be a re-consideration of the same.
12. Heard the counsel on either sides and perused the records.
13.Admittedly, the first respondent vehicle was travelling on the right
side of the road in the opposite direction and the petitioner was travelling
on the left side. The accident had taken place in the middle of the road.
This would clearly suggest that the petitioner had crossed over to the other
side. If really the petitioner had travelled on the extreme edge of the road,
then on account of the impact of the first respondent vehicle, he would have
fallen away from the road and not in the middle of the road. Owing to his
fall on the middle of the road, the third respondent's lorry which came
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C.M.A.No.40 of 2022
behind had hit him. Therefore, the Tribunal ought to have held that the
petitioner too have contributed for the accident and fixed the contributory
negligence of 15% on the petitioner.
14. Since the third and fourth respondents have not challenged the
apportionment of negligence of 30% on them and since 15% of the
contributory negligence is mulcted on the petitioner, the negligence on the
part of the first respondent would be reduced to 55%. Therefore, the
contributory negligence is now worked out at 15% on the petitioner, 55%
on the driver of the first respondent and 30% on the driver of the third
respondent.
15. Further, a perusal of the discharge summary would indicate that
the petitioner has not sustained any injuries which has seriously restricted
his earning capacity. Therefore, the adoption of multiplier method is
totally erroneous. Ex.C1 is the disability certificate issued by the Medical
Board, Krishnagiri, which has assessed the disability at 60%. Further the
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C.M.A.No.40 of 2022
Tribunal has reduced the percentage of disability from 60% to 25%, but has
not given any reasons for the same. Therefore, the disability as fixed in
Ex.C1, disability certificate shall be adopted and the compensation under
the head of 'loss of earning' is calculated on a percentage basis i.e.,
Rs.5,000/- x 60 =Rs.3,00,000/-, and the said sum is now awarded under this
head. The Tribunal has only awarded a consolidated sum of Rs.15,000/-
under the head of extra nourishment and attendant charges. This is
enhanced to a sum of Rs.25,000/-. Since the amount under the head of
disability is calculated on a percentage basis, the petitioner is not entitled to
the compensation awarded by Tribunal under the head of 'social amenities'
and hence the same is deducted. Admittedly, the petitioner has not attended
the work for two months. Therefore, calculating his monthly income at
Rs.8,000/-, a sum of Rs.16,000/- is awarded under the head 'loss of income
for two months'.
16. In all other aspects, the award of the Tribunal stands confirmed.
The compensation is now reworked as follows :
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C.M.A.No.40 of 2022
Heads of compensation Amount Amount
awarded by awarded by
Tribunal this Court
(Rs.) (Rs.)
Loss of earning 4,14,375/- 3,00,000/-
(Reduced)
Medical Expenses 1,05,518/- 1,05,518/-
Transportation charges 10,000/- 10,000/-
Transportation and Attendant 15,000/- 25,000/-
charges (Enhanced)
Pain and suffering 48,000/- 48,000/-
Social Amenities 48,000/- Nil
Damages to cloth & articles 1,000/- 1,000/-
Loss of income for two months ....... 16,000/-
(Awarded)
Total : 6,41,893/- 5,05, 518/-
(rounded off to
Rs.5,05,600/-)
17. In the result, the Civil Miscellaneous Appeal is partly allowed
and the award amount is now reduced to 5,05,600/-. Owing to the fact that
the petitioner too has contributed to the accident, 15% contributory
negligence is mulcted on the petitioner/first respondent. Hence, the
apportionment of negligence that was determined by the Tribunal would
now stand revised, and this Court now apportions the liability in the ratio of
15:55:30, i.e, 15% on the first respondent/petitioner, 55% on
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C.M.A.No.40 of 2022
appellant/second respondent and 30% on the fourth respondent. In such
case, 70% of the award amount that was liable to be paid by the
appellant/first respondent is shared between the petitioner and the first
respondent in the ratio of 15% :55%. Therefore, 70% of the award amount
now determined by this Court would come to Rs.3,53,920/-, in which, the
appellant / first respondent is liable to pay only 55% of it to the petitioner.
Accordingly, the appellant/second respondent is liable to pay Rs.2,78,080/-
(55% of Rs.3,53,920/-) and the fourth respondent (both before this Court
and Tribunal) is liable to pay Rs.1,51,680/- (30% of Rs.3,53,920/-) to the
petitioner/first respondent. Both the Insurance Companies i.e., the
appellant and fourth respondent herein are directed to deposit the said
amount to the credit of M.C.O.P.No.474 of 2017 along with interest at the
rate of 7.5% per annum from the date of claim petition till the date of
deposit within a period of six weeks from the date of receipt of a copy of
this judgment. The petitioner/first respondent herein shall forfeit the
remaining 15% of the revised award amount due to his own contributory
negligence. On such deposit being made, the petitioner/first respondent is
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C.M.A.No.40 of 2022
permitted to withdraw the award amount, along with accrued interest by
filing necessary application before the Tribunal. In case, both the Insurance
Companies have already deposited the award amount that was determined
by the Tribunal, the Tribunal is directed to refund the amount, less the
award amount now fixed by this Court, as the case may be. In other
respects, the award of the Tribunal is hereby confirmed. There shall be no
order as to costs in the present appeal. Consequently, connected
miscellaneous petition is closed.
07.07.2022
Index : Yes / No
Speaking order / Non-speaking order
ds
To:
1.The Special Sub Court
Motor Accident Claims Tribunal
Krishnagiri.
2.The Section Officer
V.R.Section, High Court, Madras.
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C.M.A.No.40 of 2022
P.T.ASHA, J.,
ds
C.M.A.No.40 of 2022
07.07.2022
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