The Branch Manager vs P.Vinothkumar
2022 Latest Caselaw 15094 Mad

                                                                        C.M.A.No.188 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 09.09.2022

                                                    CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI
                                                   and
                                  THE HONOURABLE MR.JUSTICE V.SIVAGNANAM

                                              C.M.A. No.188 of 2021
                                            and C.M.P.No.1328 of 2021

                  The Branch Manager,
                  Reliance General Ins. Co. Ltd.,
                  Shri Lakshmi Complex, 1st Floor, Omalur Main Road,
                  Bharathi Street, Swarnapuri,
                  Salem 636 004.                                               .. Appellant

                                                       Vs.

                  1.P.Vinothkumar

                  2.S.Sekar                                                   .. Respondents

                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                  Vehicles Act, 1988, against the judgment and decree dated 10.12.2019, made
                  in M.C.O.P. No.2241 of 2016, on the file of the Special Sub Court No.1,
                  (Motor Accident Claims Tribunal), Salem.



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https://www.mhc.tn.gov.in/judis
                                                                                C.M.A.No.188 of 2021

                                            For Appellant    : Mr.C.Bhuvanasundari

                                            For R1           : Mr.C.Thangaraj

                                                     JUDGMENT

[Judgment of the Court was delivered by V.M.VELUMANI,J.]

This Civil Miscellaneous Appeal has been filed by the appellant-

Insurance Company against the judgment and decree dated 10.12.2019, made

in M.C.O.P. No.2241 of 2016, on the file of the Special Sub Court No.1,

(Motor Accident Claims Tribunal), Salem.

2.The appellant is the 2nd respondent in M.C.O.P. No.2241 of 2016, on

the file of the Special Sub Court No.1, (Motor Accident Claims Tribunal),

Salem. The 1st respondent/claimant filed the said claim petition, claiming a

sum of Rs.25,00,000/- as compensation for the injuries sustained by him in

the accident that took place on 10.07.2016.

3.According to the 1st respondent, on the date of accident, at about

9.30 a.m, when he was riding as a pillion rider in a Motorcycle bearing

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Registration No.TN-39-BC-0724 owned by the 2nd respondent, on the

Tharapuram to Sangarandampalayam road, near Alampalayam Alangkattu

Thottam, the rider of the Motorcycle rode the same in a rash and negligent

manner without observing the traffic rules of the road, lost control and hit

against the road barrier and caused the accident. In the accident, the 1 st

respondent sustained multiple grievous injuries all over his body. The

accident occurred only due to rash and negligent riding by the rider of the

Motorcycle owned by the 2nd respondent and hence, the 1st respondent filed

the said claim petition claiming compensation against the 2nd respondent and

appellant-Insurance Company as owner and insurer of the Motorcycle

respectively.

4.The 2nd respondent, owner of the Motorcycle, remained exparte

before the Tribunal.

5.The appellant, insurer of the Motorcycle, filed counter statement and

denied all the averments made by the 1st respondent in the claim petition,

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including involvement of the 1st respondent in the alleged accident.

According to the appellant-Insurance Company, as per the sketch prepared by

the Police, the accident occurred only due to rash and negligent riding by

rider of the Motorcycle without following traffic rules. The injuries sustained

by the 1st respondent is not due to the alleged accident. The accident took

place on 10.04.2016, as alleged by the 1st respondent, while the FIR was

lodged belatedly only on 13.04.2016. From the Accident Register of G.H.,

Dharapuram, it is seen that at the time of accident, the 1st respondent had

breath smell of alcohol. The accident occurred only due to the negligent act

of the 1st respondent. Hence, for the negligent act of the 1st respondent, the

appellant as insurer of the said Motorcycle is not liable to indemnify the 2nd

respondent. In any event, the 1st respondent has to prove his age, avocation

and income, treatment taken, injuries sustained and medical expenses

incurred to claim compensation and prayed for dismissal of the claim petition.

6.Before the Tribunal, the 1st respondent examined himself as P.W.1

and marked 8 documents as Exs.P1 to P8. The appellant did not let in any

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oral and documentary evidence. Two documents were marked as Exs.C1 &

C2.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred only due to rash and negligent

riding by rider of the Motorcycle and directed the appellant as insurer of the

said vehicle to pay a sum of Rs.24,64,021/- as compensation to the 1st

respondent.

8.Against the said award of the Tribunal dated 10.12.2019, made in

M.C.O.P. No.2241 of 2016, the appellant - Insurance Company has come out

with the present appeal.

9.The learned counsel appearing for the appellant-Insurance Company

contended that the Tribunal erred in holding that the accident occurred only

due to the rash and negligent riding by rider of the Motorcycle owned by the

2nd respondent. As per the FIR lodged by the father of the rider of the

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Motorcycle, it is evident that his son lost his balance due to headlight from

oncoming vehicle and there is no mention of rash and negligent riding of

Motorcycle anywhere. The 1st respondent was admitted in the Richmond

Hospital only on 15.07.2016, while the accident occurred on 10.07.2016. The

1st respondent was under the influence of alcohol. In view of the same, he did

not file the Accident Report copy. The discharge summary states that the 1st

respondent skidded and fell down from Motorcycle. The two witnesses viz.,

Kumar and Rajkumar, who according to the FIR witnessed the fall of the 1st

respondent, were not examined by the 1st respondent and the Police. Hence,

the appellant-Insurance Company is not liable to indemnify the 2nd

respondent/owner of the Motorcycle. In any event, the 1st respondent who

claims that he was aged 30 years at the time of accident, without any proof,

alleges that he was a student of Hotel Management. The Tribunal, having

held that the 1st respondent completed 30 years, as per the Aadhar Card, erred

in applying multiplier '17', instead of applying the correct multiplier '16'. The

Tribunal having equated 80% disability as loss of earnings and awarded

Rs.50,000/- for prosthetic leg, failed to consider that due to the said award of

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Rs.50,000/- for prosthetic leg, his earning capacity would have increased. The

1st respondent, with an intention to claim 7.5% interest, wantonly filed

incomplete petition. The total compensation granted by the Tribunal is

excessive and prayed for setting aside the award of the Tribunal.

10.The learned counsel appearing for the 1st respondent made

submissions in support of the award of the Tribunal with regard to negligence

fixed on the rider of the Motorcycle. He further submitted that the Tribunal

considering the nature of injuries, Ex.P4-wound certificate, Ex.P5 – discharge

summary and Ex.C1-disability certificate issued by the Medical Board,

Omalur, rightly accepted the 80% permanent disability suffered by the 1 st

respondent and awarded compensation towards loss of earning capacity due

to permanent disability. The amounts awarded by the Tribunal under different

heads are not excessive and prayed for dismissal of the appeal.

11.Heard the learned counsel appearing for the appellant-Insurance

Company as well as the 1st respondent and perused the entire materials

available on record.

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12.From the materials on record, it is seen that it is the case of the 1st

respondent that on the date of accident, when he was riding as a pillion rider

in the Motorcycle owned by the 2nd respondent, on Dharapuram to

Sangarandampalayam road, near Alampalayam Alangkattu Thottam, the rider

of the Motorcycle rode the same in a rash and negligent manner without

observing the traffic rules of the road, lost control due to the headlight of the

vehicle coming from opposite direction and hit against the road barrier and

caused the accident. To substantiate his case, the 1st respondent examined

himself as P.W.1 and marked the FIR as Ex.P1. Deposition of P.W.1

corroborated with the contents of FIR. On the other hand, it is the case of the

appellant-Insurance Company that the accident occurred only due to the

negligent act of the 1st respondent who was traveling as a pillion rider in the

Motorcycle under the influence of alcohol. To substantiate their case, they

have not examined the rider of the Motorcycle or any other independent

witness. In the absence of any contra evidence to the evidence of 1st

respondent as P.W.1, the Tribunal considering the evidence of P.W.1, Ex.P1 –

FIR, Ex.P2 – Motor Vehicle Inspector's Report and Ex.P3- Final Report, held

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that the accident occurred only due to rash and negligent riding by rider of the

Motorcycle owned by the 2nd respondent. There is no error in the said finding

of the Tribunal warranting interference by this Court.

13.As far as the quantum of compensation is concerned, it is case of the

1st respondent that at the time of accident, he was aged 30 years and was

studying Hotel Management. In the accident, he sustained grievous multiple

injuries and fracture of femur right with vascular injury. The Medical Board,

Omalur examined the 1st respondent and certified that the 1st respondent

suffered 80% disability. P.W.1 has deposed that due to the injuries sustained

in the accident, he could not continue his studies. The Tribunal, on perusal of

the disability certificate marked as Ex.C1, which reveals that the 1st

respondent sustained 80% disability and evidence of P.W.1, held that the 1st

respondent suffered functional disability and rightly applied multiplier

method for awarding compensation towards loss of earning capacity. But for

the accident, considering the age and educational qualification of the 1st

respondent, he would have obtained good job with decent salary. The

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accident is of the year 2016. The Tribunal considering the age, date of

accident and educational qualification of the 1st respondent, following the

judgment of the Hon'ble Apex Court in the case of [V.Mekala Vs. M.Malathi

and another], fixed a sum of Rs.7,500/- per month as notional income, which

is not excessive. The 1st respondent was aged 30 years at the time of accident.

The Tribunal following the judgments of the Hon'ble Apex Court reported in

2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi

and others] and 2009 (2) TNMAC 1 SC Supreme Court [Sarla Verma &

others vs. Delhi Transport Corporation & another], rightly granted 40%

enhancement towards future prospects and applied the multiplier '17', in

awarding compensation towards loss of earning capacity for 80% disability.

In the absence of any contra evidence to Ex.P6, the Tribunal accepted Ex.P6

– medical bills and awarded a sum of Rs.3,99,421/- towards medical

expenses. Considering the nature of injuries and period of treatment taken by

the 1st respondent, the amounts awarded by the Tribunal under different heads

are not excessive, warranting interference by this Court.

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14.In the result, the appeal is dismissed and the amount awarded by the

Tribunal at Rs.24,64,021/- together with interest at the rate of 7.5% per

annum from the date of petition till the date of deposit is confirmed. The

appellant-Insurance Company is directed to deposit the award amount

together with interest and costs, less the amount already deposited, if any,

within a period of six weeks from the date of receipt of a copy of this

judgment, to the credit of M.C.O.P. No.2241 of 2016. On such deposit, the 1st

respondent is permitted to withdraw the award amount, along with interest

and costs, after adjusting the amount, if any, already withdrawn, by filing

necessary applications before the Tribunal. Consequently, connected

Miscellaneous Petition is closed. No costs.

(V.M.V., J) (V.S.G., J) 09.09.2022 Index : Yes/No Speaking Order : Yes/No gsa

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V.M.VELUMANI, J.

and V.SIVAGNANAM, J.

(gsa)

To

1.The Special Subordinate Judge No.1, (Motor Accident Claims Tribunal), Salem.

2.The Section Officer, V.R Section, High Court, Madras.

C.M.A. No.188 of 2021

09.09.2022

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