The Branch Manager vs Shanmugham
2022 Latest Caselaw 15222 Mad

                                                                          C.M.A.No.3109 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 13.09.2022

                                                   CORAM:

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


                                             C.M.A.No.3109 of 2021
                                            and C.M.P.No.17599 of 2021

                  The Branch Manager
                  Reliance General Insurance Co. Ltd.
                  Ist floor, Gee Jay Arcade
                  No.141/71, T.V.Samy Road
                  West R.S.Puram, Covai.                                 ... Appellant

                                                     Vs.

                  1.Shanmugham

                  2.Viswanathan                                       ... Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                  Vehicles Act, 1988, against the judgment and decree dated 25.11.2014 made

                  in M.C.O.P.No.308 of 2010 on the file of the Motor Accident Claims

                  Tribunal, Additional Sub Court, Tiruppur.



                  1/11


https://www.mhc.tn.gov.in/judis
                                                                                      C.M.A.No.3109 of 2021

                                               For Appellant     : Mrs.C.Bhuvanasundari

                                               For R1            :    Mr.MA.P.Thangavel

                                                         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

25.11.2014 made in M.C.O.P.No.308 of 2010 on the file of the Motor

Accident Claims Tribunal, Additional Sub Court, Tiruppur.

2.The appellant/Insurance Company is the 2nd respondent in

M.C.O.P.No.308 of 2010 on the file of the Motor Accident Claims Tribunal,

Additional Sub Court, Tiruppur. The 1st respondent filed the said claim

petition claiming a sum of Rs.24,00,000/- as compensation for the injuries

sustained by him in the accident that took place on 26.12.2009.

3.According to the 1st respondent, on the date of accident i.e., on

26.12.2009 at about 8.30 P.M., while he was riding in his motorcycle bearing

Registration No.TN-39-AE-3974 on Somanur to Karanampettai Road, near

https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021

Ram Nagar, Karukkampalayam, from North to South direction, the driver of

the share auto rickshaw bearing Registration No.TN 39 AK 6285 belonging

to the 2nd respondent, who was coming in the same direction, drove the same

in a rash and negligent manner, dashed on the back side of the motorcycle

driven by the 1st respondent and caused the accident. In the accident, the 1st

respondent sustained grievous injuries all over the body. Therefore, the 1st

respondent has filed the above claim petition claiming compensation against

the 2nd respondent, owner of the share auto rickshaw and appellant/Insurance

Company, insurer of the said vehicle.

4.The 2nd respondent, owner of the share auto rickshaw remained

exparte before the Tribunal.

5.The appellant/Insurance Company filed counter statement denying

the averments made in the claim petition and stated that the accident has

occurred only due to negligence of the 1st respondent, who rode the

motorcycle in a rash and negligent manner. The owner and insurer of the

motorcycle driven by the 1st respondent were not made as parties to the

https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021

proceedings and hence, the claim petition is bad for non-joinder of necessary

parties. Therefore, the appellant is not liable to pay any compensation to the

1st respondent. In any event, the amount claimed by the 1st respondent is

excessive and prayed for dismissal of the claim petition.

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

and Dr.Dhanasekar, was examined as P.W.2 and 11 documents were marked

as Exs.P1 to P11. The appellant/Insurance Company did not let in any oral

and documentary evidence.

7.The Tribunal considering the pleadings, oral and documentary

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

the driver of the share auto rickshaw belonging to the 2nd respondent and

directed the appellant/Insurance Company being the insurer of the said share

auto rickshaw to pay a sum of Rs.21,16,000/- as compensation to the 1 st

respondent.

8.Against the said award dated 25.11.2014 made in M.C.O.P.No.308 of

2010, the appellant/Insurance Company has come out with the present appeal.

https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021

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

contended that no independent witness other than the 1st respondent was

examined to prove the manner of accident. Mere filing of F.I.R. against the

driver of the share auto rickshaw is not a substantive piece of evidence to

come to a conclusion that the accident has occurred only due to rash and

negligent driving by the driver of the share auto rickshaw. The Tribunal ought

to have fixed contributory negligence on the part of the 1st respondent. The

learned counsel further contended that 1st respondent claimed that he was the

Proprietor of SMR Tex and was earning a sum of Rs.2,90,536/- per annum.

The 1st respondent has not filed any document to prove that the said business

has been closed. Even after the accident, he can continue his business and

there is no total loss of income. The Tribunal without considering the same,

adopted multiplier method and granted excessive amounts as compensation

towards loss of earning power. The amounts granted by the Tribunal under

different heads are excessive and prayed for setting aside the award of the

Tribunal.

https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021

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

submissions in support of the award passed by the Tribunal and contended

that the total compensation awarded by the Tribunal is not excessive and

prayed for dismissal of the appeal.

11.During pendency of this appeal, the 2nd respondent, owner of the

share auto rickshaw died.

12.Heard the learned counsel appearing for the appellant as well as the

learned counsel appearing for the 1st respondent and perused the entire

materials on record.

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

respondent that on 26.12.2009 at about 20.30 hours, while he was riding in

his motorcycle bearing Registration No.TN-39-AE-3974 on Somanur to

Karanampettai Road, near Ram Nagar, Karukkampalayam, from North to

South direction, the driver of the share auto rickshaw bearing Registration

No.TN 39 AK 6285 belonging to the 2nd respondent, who was coming in the

https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021

same direction, drove the same in a rash and negligent manner, dashed on the

back side of the motorcycle driven by the 1st respondent and caused the

accident. To substantiate the said claim, the 1st respondent examined himself

as P.W.1 and deposed to that effect and marked the F.I.R., which was

registered against the driver of the share auto rickshaw, as Ex.P1. It is the

case of the appellant that accident is not due to the negligence of the driver of

the share auto rickshaw belonging to the 2nd respondent and it is only due to

negligence on the part of the 1st respondent. The appellant has not examined

either the driver of the share auto rickshaw or any witness to substantiate

their contention. The contention of the learned counsel appearing for the

appellant that only based on the F.I.R., negligence cannot be fixed is

concerned, the Court can take into account the contents of F.I.R. along with

other materials available to come to the conclusion about the negligence. In

the present case, neither the 2nd respondent nor the appellant gave any

objection for the F.I.R. being registered against the driver of the share auto

rickshaw. In view of the same, the present contention of the learned counsel

appearing for the appellant that negligence cannot be fixed based on the

F.I.R., cannot be accepted. The Tribunal considering the materials placed

https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021

before it, Ex.P1 F.I.R. and in the absence of any evidence by the appellant,

held that the accident has occurred due to rash and negligent driving by the

driver of the share auto rickshaw belonging to the 2nd respondent and fastened

the liability on the appellant. There is no error in the said finding of the

Tribunal warranting interference by this Court.

14.As far as quantum of compensation is concerned, in the accident,

the 1st respondent sustained grievous injuries all over the body and suffered

fractures in right leg, right knee, right great toe and right hand was

amputated. He has taken treatment as in-patient in Ramakrishna Hospital,

Coimbatore, for three months and spent huge amount towards medical

expenses. Due to the injuries and amputation, he suffered disability and could

not do his normal work as he was doing earlier. To substantiate this

contention, the 1st respondent examined himself as P.W.1 and deposed to that

effect. The 1st respondent examined Dr.Dhanasekar as P.W.2. P.W.2/Doctor

deposed about the nature of injuries, amputation of right hand, fractures in

right leg, right knee, right toe and injuries all over the body. P.W.2/Doctor has

elaborately deposed that the 1st respondent cannot do the work as he was

https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021

doing earlier and described the discomfort faced by the 1st respondent. P.W.2

examined the 1st respondent, assessed the disability and certified that 1st

respondent suffered 87.3% disability. The Tribunal considering the evidence

of P.W.2/Doctor, nature of injuries, disability suffered by the 1st respondent

and amputation of right hand, fixed the disability of the 1st respondent at 80%

and granted compensation by adopting multiplier method.

14(i). The contention of the learned counsel appearing for the appellant

is that the 1st respondent is the Proprietor of SMR Tex and he has not

produced any material to show that 1st respondent closed the said business

and suffered total loss of earning capacity. If at all any loss, he would have

suffered only reduction in income and not total loss of income. The said

contention is not acceptable. In view of the evidence of P.W.2/Doctor, who

has deposed that 1st respondent cannot do any work as he was doing earlier,

the said evidence is uncontroverted. From the above materials, it is seen that

the 1st respondent has lost his total earning capacity. In view of the evidence

of P.W.2 and in the absence of any contra evidence by the appellant, finding

of the Tribunal fixing disability and adopting multiplier method does not

https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021

warrant any interference by this Court. The total compensation granted by

the Tribunal is not excessive warranting interference by this Court.

15. In the result, this Civil Miscellaneous Appeal is dismissed and the

sum of Rs.21,16,000/- awarded by the Tribunal as compensation to the 1st

respondent along with interest and costs is confirmed. The

appellant/Insurance Company is directed to deposit the entire amount

awarded by the Tribunal along 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. On such deposit, the 1st respondent is permitted to

withdraw the entire amount awarded by the Tribunal along with interest and

costs, less the amount if any, already withdrawn. Consequently, connected

Miscellaneous Petition is closed. No costs.

(V.M.V., J) (V.S.G., J) 13.09.2022

Index : Yes / No kj

https://www.mhc.tn.gov.in/judis C.M.A.No.3109 of 2021

V.M.VELUMANI,J.

and V.SIVAGNANAM,J.

kj

To

1.The Additional Subordinate Judge Motor Accident Claims Tribunal Tiruppur.

2.The Section Officer VR Section High Court Madras.

C.M.A.No.3109 of 2021 and C.M.P.No.17599 of 2021

13.09.2022

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