Madras High Court
K.Arumugam vs M. Siva on 17 October, 2022
C.M.A.Nos.2346 of 2013 and 1259 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.10.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.Nos.2346 of 2013 and 1259 of 2020
and C.M.P.No.8372 of 2020
K.Arumugam ... Appellant in C.M.A.No.2346 of 2013
United India Insurance Company Lt.,
No.64, Armenian Street,
Chennai 600 001
Now at:
United India Insurance Company Limited,
Motor Thirty Party Claims Hub,
Silingi Building, 4th Floor,
No.134, Greams Road,
Chennai 600 006. ...Appellant in C.M.A.No.1259 of 2020
Vs.
1. M. Siva
2.United India Insurance Company Lt.,
No.19, Andiappa Gramani Street,
Royapuram, Chennai -13 ...Respondents in C.M.A.No.2346 of 2013
1. K.Arumugam
2. M.Siva ... Respondents in C.M.A.No.1259 of
PRAYER in both C.M.As: Civil Miscellaneous Appeal filed under Section
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C.M.A.Nos.2346 of 2013 and 1259 of 2020
173 of Motor Vehicles Act, 1988 against the fair and decretal order dated
22.03.2013 in M.C.O.P.No.4092 of 2010 on the file of the Motor Accident
Claims Tribunal / V Judge, Court of Small Causes at Chennai.
C.M.A.No.2346 of 2013
For Appellant : Ms.Ramya V.Rao
For Respondent-1 : Not ready in notice
For Respondent-2: Mr.P.Sankaranarayanan
C.M.A.No.1259 of 2020
For Appellant : Mr.P.Sankaranarayanan
For Respondent-1 : Ms.Ramya V.Rao
COMMON JUDGMENT
The claimant as well as the Insurance Company have filed these
appeals, challenging the Award passed by the Motor Accident Claims
Tribunal, (V Court of Small Causes), Chennai in M.C.O.P.No.4092 of 2010.
The claimant has filed C.M.A.No.2346 of 2013 seeking enhancement and
the Insurance Company has filed C.M.A.No.1259 of 2020 questioning the
liability and consequently, the quantum.
2. The facts in brief are as follows: The parties are referred to in
the same ranking as before the Tribunal below.
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C.M.A.Nos.2346 of 2013 and 1259 of 2020
The petitioner had sustained injuries in a road accident on 14.01.2010
at about 18.30 hrs, while riding his motor-cycle bearing Registration
No.TN 04 AC 8159 on the Flag Staff Road. He was hit by an Auto, bearing
Registration No.TN 07 AJ 7897 belonging to the first respondent and
insured with the second respondent. The petitioner had claimed a
compensation of a sum of Rs.10,00,000/-. The petitioner had sustained a
fracture on the right hand clavicle bone apart from laceration and abrasions
He would submit that he was working as a mason drawing a monthly
income of Rs.3,300/-.
3. The first respondent remained ex-parte. The Insurance
Company had filed a counter inter-alia denying the averments contained in
the claim petition and also denying that the auto was insured with them
under a valid policy. They had also contended that the petitioner was
negligent and it was on account of his negligence that the accident had
taken place. Therefore, being the tort-feasor himself, he cannot seek
compensation from the Insurance Company. They had further questioned
the quantum of compensation on the ground that the injuries sustained by
him were superficial.
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C.M.A.Nos.2346 of 2013 and 1259 of 2020
4. The Tribunal below on considering the evidence concluded that
the accident had taken place on account of the negligence of the driver of the
first respondent's auto. The Tribunal below had clearly concluded that the
Insurance Company has not made out a case that the petitioner was a tort-
feasor. The Tribunal had awarded a total compensation of Rs.98,240/-.
The Tribunal had taken the disability at 13%. The Tribunal had not
accepted the disability certificate given by P.W2, who had assessed the
disability at 50%, since he had not given the original treatment and he had
examined the petitioner after a lapse of over 2 years from the date of the
accident. The petitioner is aggrieved by the compensation granted and the
Insurance Company is aggrieved by the fact that the liability has been
fastened only on the first respondent's vehicle as also the quantum of
compensation.
5. Heard both counsels and perused the materials available on
record.
6. The learned counsel for the Insurance Company would submit
that the petitioner is a tort-feasor himself and therefore, he has to first prove
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C.M.A.Nos.2346 of 2013 and 1259 of 2020
that he has suffered a permanent disability, which in the instant case has not
been done so. To this, learned counsel for the petitioner would submit that
the petitioner has suffered fracture to the clavicle bone and had undergone a
surgery. However, a perusal of the discharge summary would show that the
petitioner had been asked to come back for clavicle fixation and he had not
returned for the same. The Disability Certificate issued by P.W2 also does
show that the petitioner had undergone a second surgery. Therefore, it is
clear that the petitioner has not sustained a permanent disability. Though
the petition has been filed under Section 163 A of the Motor Vehicles Act,
the contents of the claim petition particularly are in the lines of a claim
petition under Section 166 of the Act. The Insurance Company has not been
able to prove that the accident had occurred only on account of the
negligence of the petitioner himself and the Tribunal has rightly rejected his
contention of the second respondent-Insurance Company. Though the
second respondent had countered that that the accident had occurred only on
account of the negligence of the petitioner, they have failed to examine the
eye witness or even the investigating Officer to arrive at the conclusion that
the accident had occurred only account of the negligence of the petitioner.
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C.M.A.Nos.2346 of 2013 and 1259 of 2020
7. Therefore, considering the fact that the petitioner has not been
able to prove the permanent disability and future treatment, the quantum of
compensation granted by the Tribunal appears to be reasonable. Likewise,
the second respondent-Insurance Company has not been able to prove that
the accident had occurred only on account of the negligence on the part of
the petitioner. In the result, both Civil Miscellaneous Appeals are dismissed
and the Award passed by the Tribunal is confirmed. No costs.
Consequently, connected miscellaneous petition is closed.
17.10.2022
Index : Yes/No
Speaking Order : Yes / No
srn
To
1.The Motor Accident Claims Tribunal / V Judge,
Court of Small Causes at Chennai.
2.The Section Officer,
VR Section, Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2346 of 2013 and 1259 of 2020
P.T. ASHA, J,
srn
C.M.A.Nos.2346 of 2013 and
1259 of 2020
17.10.2022
https://www.mhc.tn.gov.in/judis
