The Branch Manager vs Samikannu
2022 Latest Caselaw 3846 Mad

                                                                              CMA.(MD)No.636 of 2019

                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED : 01.03.2022

                                                        CORAM :

                         THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

                                           CMA(MD)No.636 of 2019
                                                     and
                                     CMP(MD)Nos.7844 of 2019 and 2801 of 2020


                  The Branch Manager,
                  HDFC ERGO General Insurance Company Ltd.,
                  No.111, Achutha,
                  Bharathidasan Salai,
                  Contonment,
                  Trichy-620 001.                                                    ... Appellant

                                                           Vs.
                  1.Samikannu

                  2.Palanichamy                                                   ... Respondents

                  PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                  Motor Vehicles Act, to set aside the fair and decreetal order dated
                  23.01.2019 passed in M.C.O.P.No.17 of 2016 on the file of the Motor
                  Accident claims Tribunal(Principal Sub Court), Pudukkottai and allow this
                  appeal.


                                  For Appellant       : Mr.S.Srinivasa Raghavan
                                  For Respondents     : Mr.S.Mohammed Kasim for R1
                                                        Mr.P.Jeyasankar for R2


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https://www.mhc.tn.gov.in/judis
                                                                             CMA.(MD)No.636 of 2019

                                                    JUDGMENT

This Civil Miscellaneous Appeal is filed by the HDFC ERGO

General Insurance Company Limited, challenging, the Judgment and decree

passed in M.C.O.P.No. 17 of 2016, on the file of the learned Motor

Accident claims Tribunal (Principal Sub Court), Pudukkottai. They have

filed the present appeal questioning the liability as well as the quantum of

compensation awarded by the Tribunal.

2.According to the learned counsel for the appellant/Insurance

Company, the two wheeler driven by the injured dashed on head on

collision with the tractor of the offending vehicle, having registration

No.TN-55-AE-8970. The driver of the two wheeler namely, the injured has

also contributed to the accident and he is not having any proper driving

licence. The driver of the tractor is also not having driving licence and

hence, fastening the complete liability upon the insurer of the tractor is

unsustainable in law and also made a submission on the quantum of

compensation that 40% functional disability has to be taken as 25% and

accordingly, the multiplier method has also to be adopted.

https://www.mhc.tn.gov.in/judis CMA.(MD)No.636 of 2019

3. Heard both sides and perused the materials available on record.

4.After perusing the evidence of RW1-Motor Vehicle Inspector

coupled with the evidence of Ex.R2-Motor Vehicle Inspector's report for

the Tractor and Ex.R4-Motor Vehicle Inspector's report for the Two

wheeler, in the absence of any damage in front of the two wheeler, the

Tribunal has rightly fixed the entire negligence on the driver of the Tractor.

On appreciation of the oral and documentary evidence of RW1 coupled

with Ex.R2, Ex.R3 and Ex.R4 documentary evidence, I find that such a

finding rendered by the Tribunal is just and proper and the same does not

warrant any interference in the appellate stage. Accordingly, this Court

holds that the accident had taken place only due to the rash and negligent

driving of the driver of the first respondent tractor.

5.From the evidence of RW1 and RW2 and Ex.R2, the Motor

Vehicle Inspector's report on the tractor, I find that the driver of the Tractor

does not have any valid driving licence on the date of the accident and the

same is in violation of the condition of Ex.R1-Insurance Policy. Hence, the

insurance company cannot be fastened with the liability, if at all following

https://www.mhc.tn.gov.in/judis CMA.(MD)No.636 of 2019

the judicial pronouncement, the insurance company is directed to pay and

recover the same from the owner.

6.On the quantum of compensation, based upon Ex.C1-Disability

Certificate issued by the Medical Board of the Pudukkottai Government

Hospital, 40% disability has been fixed. However, the tribunal has taken

40% as functional disability. In view of the decision of the Hon'ble

Supreme Court in Raj Kumar Vs Ajay Kumar reported in 2011 ACJ 1(SC),

unless it is being demonstrated by PW1 as to how the injury has resulted in

functional disability, in the absence of any positive evidence, the

percentage of the disability fixed by the medical board cannot be decided as

that of the functional disability. Taking note of the disability mentioned in

the certificate, I find that the functional disability be, safely, fixed at 25%

instead of 40%. Accordingly, the quantum of compensation is reduced

from Rs.5,750 X 12 X 16 X 40/100 =Rs.4, 41,600/- to Rs.5750 x 12 x 16 x

25/100=Rs.2,76,000/-. The Tribunal has rightly adopted the multiplier

method as per the decision in Sarla Verma and others vs. Delhi

Transport Corporation and another reported in (2009) 6 SCC 121

https://www.mhc.tn.gov.in/judis CMA.(MD)No.636 of 2019

and the same need not be disturbed. The notional income fixed by the

Tribunal appears to be reasonable and also the award passed by the

Tribunal under the other heads are found to be reasonable and therefore, the

same is hereby confirmed.

7.In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation awarded by the Tribunal is reduced from

Rs.5,12,740/- to Rs.3,47,140/- which shall carry interest at the rate of 7.5%

per annum. The present appellant/Insurance Company is directed to deposit

the entire compensation amount awarded by this Court, i.e., Rs.3,47,140/-

(if not already deposited) together with interest at the rate of 7.5% per

annum from the date of claim petition till the date of deposit to the credit of

MCOP.No.17 of 2016 on the file of the Motor Accidents Claims Tribunal,

Principal Subordinate Judge, Pudukkottai, within a period of eight weeks

from the date of receipt of a copy of this order. On such deposit being

made, the first respondent/claimant is permitted to withdraw the same, in

the manner known to law. If, the appellant/Insurance Company had already

deposited the compensation awarded by the Tribunal to the credit of the

said MCOP, then, they are at liberty to withdraw the balance amount which

https://www.mhc.tn.gov.in/judis CMA.(MD)No.636 of 2019

is in excess of the amount awarded by this Court after following due

process of law. No costs. Consequently, connected miscellaneous petitions

are closed.

01.03.2022

Index : Yes/No Internet : Yes/No cp

To

1.The Motor Accidents Claims Tribunal, Principal Sub Court, Pudukkottai.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis CMA.(MD)No.636 of 2019

RMT.TEEKAA RAMAN,J., cp

CMA(MD)No.636 of 2019 and CMP(MD)Nos.7844 of 2019 and 2801 of 2020

01.03.2022

https://www.mhc.tn.gov.in/judis