Madras High Court

Pappa vs G.Saravanan on 1 March, 2022

                                                                                 CMA No.3148 of 2017

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED:     01.03.2022

                                                     CORAM:

                                  THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

                                               CMA No. 3148 of 2017


                     Pappa                                             ... Appellant/Petitioner

                                                         Vs
                     1. G.Saravanan

                     2. K.Sathiyanarayanan

                     3. Iffco-Tokio General Insurance Co Limited.,
                       Tulsi Chambers, 3rd Floor, 195, T.V.Swamy Road (West)
                        R.S.Puram, Coimbatore.

                     4. T.Sivaraj

                     5. G.Gurusave

                     6. Reliance General Insurance Co Limited.,
                        141/71, Tiruvenkatasamy Road (West),
                        R.S.Puram, Coimbatore          ... Respondents/Respondents
                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the M.V.
                     Act, 1988 to set aside the order made in M.C.O.P.No. 172 of 2009 on the
                     file of the Motor Accident Claims Tribunal cum Fast Track Court No.4,
                     Bhavani, Erode District, dated 12.03.2012.


                     1/10


https://www.mhc.tn.gov.in/judis
                                                                                      CMA No.3148 of 2017

                                            For Appellant       : Mr. C. Kulanthaivel

                                            For RR 1 to 5       :

                                            For 6th Respondent : Mr. S.Arun Kumar


                                                      JUDGMENT

The appellant was the claimant in M.C.O.P.No. 172 of 2009

which was pending on the file of Motor Accident Claims Tribunal / Fast

Track Court No.4, Bhavani, Erode District.

2. By Judgment dated 12.03.2012, the Claim Petition was

dismissed, necessitating filing of the present appeal. The claim petition had

been filed under Section 166 of the Motor Vehicles Act, 1988. The Tribunal,

during the course of trial, had framed as the first issue to be examined,

whether the accident occurred due to the rash and negligent driving of the

vehicle concerned.

3. The brief facts necessitating the filing of the Claim Petition are

that the claimant, on 25.01.2009 at around 11 a.m., was travelling in an

https://www.mhc.tn.gov.in/judis CMA No.3148 of 2017

Auto bearing Registration No. TN-34/F-2619 from Erode to Tiruchengode

near Alamedu Membalam Thatha Kolipannai towards Erode. At that time,

an Innova Car bearing Registration No. TN-24/U-5577 which was said to be

driven, according to the claimant, in a rash and negligent manner, came in

the opposite direction and hit against the Auto, owing to which, the claimant

suffered grievous injuries. This necessitated the claimant to be admitted as

an inpatient for practically two months at Dr.Alagiri Hospital at

Pallipalayam. The claimant had suffered both side hip bone fracture, left

thigh bone fracture and Lacerated wound over the left foot and right thigh.

Claiming compensation for the injuries suffered, the claimant had preferred

the aforementioned M.C.O.P.No. 172 of 2009.

4. The trial had proceeded in a slow manner since objections were

raised placing reliance on the records produced namely, the FIR which was

registered and the final report filed pursuant to the investigation of the FIR

and a doubt was raised which was affirmed by the Tribunal that the driver of

the vehicle was not the person who, was finally charge sheeted by the police.

Claiming that the petitioner had therefore not placed correct facts before the

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Court and that the Innova Car bearing Registration No. TN-24/U-5577 was

not the vehicle involved in the accident, the Tribunal proceeded to dismiss

the claim petition. The Tribunal did not proceed further to determine the

quantum of compensation to be awarded.

5. Questioning that particular award, the claimant had filed the

present Appeal.

6. My attention had been drawn to the fact that in the very same

accident, another injured person, namely, Kunjammal, who was aged about

40 years, had also filed M.C.O.P.No. 386 of 2010, which also came up

before the MACT/Additional District Court at Bhavani, which is the

Tribunal which also adjudicated the claim petition of the appellant herein.

7. In that case, the Tribunal came to a conclusion that the

aforementioned TATA Innova Car caused the accident and was driven in a

rash and negligent manner leading to the accident and affirmed that

https://www.mhc.tn.gov.in/judis CMA No.3148 of 2017

particular point in favour of the claimant and proceeded to grant

compensation. This finding naturally, works to the advantage of the

appellant herein and it would highly inappropriate if the appellant was to be

non suited on the ground of not establishing the identity of the driver of the

offending vehicle when another claim petition preferred by another injured in

the same accident, the identity of the driver of the vehicle was affirmed and

compensation was granted.

8. I would therefore set aside the order of the Motor Accident

Claims Tribunal on that particular issue with respect to the identity of the

vehicle or the driver. It had been very clearly pointed out in the discussion in

M.C.O.P.No. 386 of 2010 that the FIR and also the report of the Motor

Vehicle Inspectors and the final report pointed out to the fact that the Innova

Car was alone responsible for the accident. It was also pointed out that the

Sub Inspector of Police, Pallipalayam Police Station who adduced evidence

as PW-2 had stated that the Investigating Officer had changed the name of

the Auto driver from Sekar to Shivaraj. In view of these facts, it would only

be appropriate that the liability of the insurer of the Innova vehicle is fixed

and determined.

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9. Heard Mr. C.Kulanthaivel, learned counsel for the appellant

and Mr.S.Arun Kumar learned counsel for the insurer/6th

respondent/Reliance General Insurance Co Ltd.

10. The facts reveal that while the appellant was travelling in an

auto, the Innova A/c Vehicle, driven in a rash manner had dashed against the

auto. I would fix the liability for payment of compensation to the 6th

respondent, the insurer of the said offending vehicle.

11. Let me therefore fasten liability on the sixth respondent

insurer/ insurer of the innova vehicle bearing Registration No. TN-24/U-

5577.

12. The compensation to be granted must then be examined. The

Insurance Company had not let in any contra evidence denying liability or

alleging contributory negligence on the part of the other vehicle.

https://www.mhc.tn.gov.in/judis CMA No.3148 of 2017

13. While determining compensation, the fact to be considered the

age of the petitioner, which was determined as 50 years. She was working

as an agricultural coolie. The nature of injuries have been set out above and

it is seen that those injuries would make it impossible for her to further

continue to as an agricultural coolie effectively putting an end to her known

avocation. A disability certificate is available and the Doctor had assessed

the disability at 36%. Let me go with that opinion while determining the

disability.

14. It is also seen that she had been in hospital for 38 days from

25.01.2009 to 04.03.2009. Naturally the injuries should have been quite

extensive. The monthly income is determined at Rs.6,500/- per month and if

it is taken into account and applied with multiplier '13', the income per year

would be 6,500x12x13x35% = 3,54,900/-.

15. The bills for medical expenses have been produced. Let me

go with the documents which had been produced before the Court. They are

for a sum of Rs.58,811.79 which is rounded up to Rs.58,812/-. With

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respect to transport expenses, I would grant a sum of Rs.5,000/-. With

respect to the damages to clothes and apparels, I would grant a sum of

Rs.2,000/-. With respect to additional food or nutrients to be supplied

during the course of treatment and also subsequent to the treatment, I would

grant a sum of Rs.3,000/-. For compensation for pain and suffering, I would

grant a sum of Rs.10,000/-. The total compensation comes to Rs.4,33,712/-.

16. The compensation amount is therefore granted as follows:-

                                  1. loss of income            :         Rs. 3,54,900
                                  2. Pain and suffering        :         Rs. 10,000/-
                                  3. Food and Nutrients        :         Rs.    3,000/-
                                  4. Transport to Hospital     :         Rs.    5,000/-
                                  5. Damages to clothes        :         Rs.    2,000/-
                                  7. Medical Expenses          :         Rs. 58,812/-

                                                                         ----------------
                                                                          Rs.4,33,712/-
                                                                         -----------------

17. The total compensation granted is Rs.4,33,712/-. In fine, the

Appeal is allowed. No costs.

18. The six respondent is directed to deposit the compensation

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amount less the amount already deposited, if any, with interest at the rate of

7.5% per annum after deducting the interest portion for 1877 days from the

date of filing of the petition till date of deposit within a period of eight 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, after

adjusting the amount, if any, already withdrawn. No order as to costs.

01.03.2022

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