Madras High Court
M.Rani vs R.Palanisamy (Previous Owner) on 3 April, 2023
CMA.No.1302 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :03.04.2023
CORAM
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
CMA.No.1302 of 2018
1.M.Rani
2.M.Mohan .. appellants
Vs.
1.R.Palanisamy (Previous owner)
2.M/s.Reliance General Insurance Co.,Ltd.,
“Reliance House” 6th Floor, No.6, Haddows Road,
Nungambakkam, Chennai 600 006.
3.K.Krishnasamy (Present owner) .. Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act 1988 against the Judgment and Decree dated 24.08.2017 made
in M.C.O.P.No.835 of 2010 on the file of the Motor Accidents Claims
Tribunal/II Judge, Small Causes Court, Chennai.
For appellants : Mr.E.Rajadurai
For Respondents : Mr.M.B.Gopalan Associates for R2
No appearance – R1 & R3
JUDGMENT
This appeal has been filed by the appellants/claimants seeking
enhancement of compensation under the impugned award dated 24.08.2017
made in M.C.O.P.No. 835 of 2010 on the file of the Motor Accidents
Claims Tribunal/II Judge, Small Causes Court, Chennai.
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CMA.No.1302 of 2018
2. The case of the claimants / appellants is that on 27.01.2010 at
about 20.30 hours, while the deceased was riding motor cycle bearing
Regn.No.TN-22-BU-5288 Hero Honda at Tambaram to Somangalam road
near J.R.K.petrol bunk, a lorry bearing Regn.No.TN-21-AY-7299 driven by
its driver in a rash and negligent manner, in front of the deceased, has
suddenly stopped without any signal resulting in the motor cycle dashing
against the back side of the lorry causing grievous injuries to the deceased.
Due to the said impact, the deceased sustained grievous injuries.
Immediately after the accident, he was taken to Parvathi Hospital for first
aid treatment and admitted as in-patient from 27.01.2010 to 06.02.2010 for
further care. Claiming that the driver of the lorry is solely responsible for
the accident, the deceased and the appellants/claimants have filed a claim
petition claiming a sum of Rs.6,00,000/- After discharge from the Hospital
also, the deceased taken continuous treatment from various hospitals as in-
patient and outpatient, but he was expired on 08.08.2012.
3. The Tribunal, based on the oral and documentary evidences has
observed that the driver of the respondents 1 and 3 and deceased are
responsible for the accident and fastened contributory negligence on the
and the driver of the lorry and the rider of the motor cycle and ultimately
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CMA.No.1302 of 2018
quantified the total compensation at Rs.1,12,000/- with interest at the rate
of 9% per annum from the date of petition till the date of deposit with
contributory negligence fixed on the deceased and driver of the lorry in the
ratio of 50%:50%. Aggrieved against the same, the claimants / appellants
are before this Court.
4. The learned counsel for the claimants / appellants has submitted
that the judgment and decree of the Tribunal are contrary to law, the
weight of evidence and probabilities of the case. The Tribunal has failed to
see that the perusal of Exs.P2, P10 and P11 has clearly established that the
death is due to the injuries sustained by the deceased who is son of the
appellants caused by the accident. It failed to see that MV Act is a statutory
remedy of a special forum and it is on a higher pedestal than contractual
one. It failed to see that the compensation accrued due to the death of the
son of the appellants goes to the estate of the deceased and so has to be paid
to the legal heirs. It failed to see that Ex.P14 issued by PW3 is based on
analysis of all the hospital records and its findings. It failed to see that the
medical expenses of Rs.44,197/- in Ex.P11 are acceptable and the rejection
of the medical bills relating to the year 2012 is not based on sound reasons.
It erred in granting Rs.10,000/- towards pain and sufferings; Rs.12,000/-
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CMA.No.1302 of 2018
towards loss of earning; Rs.5000/- towards transport and extra nourishment
and Rs.2000/- towards attender charges which are on the meagre side. It
failed to see that the contributory negligence is unwarranted in the facts and
circumstances of the case and mere non possession of driving license by
the deceased cannot be construed as contributory negligence. It failed to see
that contributory negligence can be fixed only if there is a pleading and
proof of the same by the 2nd respondent and the same is well settled by
several authorities of Supreme Court. In any event, the Tribunal erred in
awarding compensation at Rs.1,12,000/- as against the claim of
Rs.6,00,000/-. Hence, he prays for enhancement of the Award amount.
5. Before the Tribunal, the appellants/claimants have examined three
witnesses and marked PW1 to PW3 and filed fourteen documents which
were marked as Ex.P1 to Ex.P14. On the side of the respondents, neither
witness was examined nor filed any documents.
6. Per contra, the learned counsel for the second respondent /
Insurance Company has submitted that the Tribunal has granted reasonable
compensation under various heads and no modification needs to be granted.
Hence, he prays to dismiss the petition.
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CMA.No.1302 of 2018
7. This Court has considered the above submissions made by the
learned counsel for the appellants and the learned counsel for the second
respondent and perused the materials available on record.
8. Based on the evidences of P.W.1 to PW3 and perusing the exhibits
in Ex.P1/FIR copy and the corroboration of evidence of PW1 with the
Ex.P1, the Tribunal has fastened the liability on the driver of the
respondents 1 and 3 and the deceased and thus fixed contributory
negligence on them in the ratio of 50% : 50%.
9. As far as the quantum of compensation arrived at by the Tribunal
is concerned, to prove the avocation and income of the appellants, P.W.1
has been examined, who deposed that he was engaged as Sub-Contractor,
Airport Chennai and was earning Rs.7,500/- per month. On perusal of
Ex.P2, Ex.P10 and Ex.P11, the Tribunal came to the conclusion that there is
no nexus between the accident and the death. On perusal of records, it is
seen that the deceased was admitted as in-patient and taken treatment for
injuries “compound comminuted depressed fracture frontal bone, left side
and fracture mandible and bilateral maxilla. Fracture base 5th metacrpal
bone left hand. Due to the grievous injuries sustained by the deceased, he
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CMA.No.1302 of 2018
had taken assistance of the attender for five months for which the Tribunal
has wrongly awarded a meagre sum of Rs.2,000/- towards attender charges.
Hence, the award granted under the head of attender charges is enhanced to
Rs.15,000/-. From the records, it is also seen that he has sustained grievous
injury of fracture of bones and multiple injuries all over the body but the
Tribunal has awarded a meagre sum of Rs.10000/- towards Pain and
sufferings and hence the same needs revisit. Hence, a sum of Rs.30,000/- is
fixed by this court towards Pain and sufferings. This court is of the
considered opinion that the accident took place on 27.01.2020 and the
deceased died on 08.08.2012, for nearly 2½ years, he was under treatment.
During the said treatment period, he has incurred transport expenses and
has taken nutritious food and hence, the same may be fixed at Rs.10,000/-
each towards Transport and Extra Nourishment.
10. This Court is of the considered view that due to the nature of
grievous injuries sustained by the deceased and period of treatment he was
admitted in the hospital as in-patient and continuous treatment as out
patient, this court is inclined to take five months and thus arrived at
Rs.30,000/- (6000 x 5 months) towards loss of income.
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CMA.No.1302 of 2018
11. Insofar as the other head such as Medical Expenses, the
assessment of the compensation awarded by the Tribunal is based on
medical bills, it does not call for any interference by this Court.
12. In fine, the re-structured compensation, item-wise, would be thus:
Heads Amount Award Amount
awarded by by this Court
the Tribunal (Rs.)
(Rs.)
Medical bills 77,420/- 77,420/-
Attender charges 2,000/- 15,000/-
Loss of income 12,000/- 30,000/-
Pain & suffer 10,000/- 30,000/-
Transport to 5000/- 10,000/-
Hospital
Extra Nourishment 5,000/- 10,000/-
Total 1,11,420/- 1,72,420/-
Rounded off to Rs.1,73,000/-
13. In the decision rendered in Dinesh Kumar,J. @ Dinesh.J. Vs.
National Insurance Co., Ltd & Others reported in 2018 (1) TN MAC 34
(SC), it is held that mere failure to produce driving license not sufficient to
draw adverse inference in respect of Contributory negligence and hence
contributory negligence fixed on the deceased is set aside.
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CMA.No.1302 of 2018
14. In view of the above decision, the contributory negligence fixed
on the deceased is set aside. Hence, the entire negligence is fixed on the
driver of the lorry and accordingly the Insurance Company is liable to pay
the entire compensation amount to the claimants/appellants
*
15. In the result,
a) this Civil Miscellaneous Appeal filed by the claimants / appellants
is partly allowed, by enhancing the total amount of compensation from
Rs.1,12,000/- to Rs.1,73,000/- along with interest at the rate of 9% p.a.
from the date of filing of the petition till the date of deposit. . It is made
clear that for the enhanced amount of Rs.61,000/-, the interest rate of 9%
shall be calculated from the date of filing of this appeal.
(b) The second respondent/Insurance Company is directed to deposit
the enhanced award amount together with interest from the date of claim till
the date of deposit and costs as assessed by the Tribunal, to the credit of
M.C.O.P.No.835 of 2010 within a period of six weeks from the date of
receipt of a copy of this Judgment. Needless to state that the appellants
shall pay necessary court fees for the enhanced compensation amount
before receiving the copy of this judgment.
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CMA.No.1302 of 2018
(c ) On such deposit being made, the Tribunal is directed to transfer
the award amount along with accrued interest to the bank account of the
appellants/claimants through RTGS within a period of two weeks
thereafter. No costs.
03.04.2023
Index : Yes/No
Internet : Yes/No
gv
To
1. The Motor Accidents Claims Tribunal,
/II Judge, Small Causes Court, Chennai.
2. The Section Officer,
V.R.Section,
High Court, Madras.
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CMA.No.1302 of 2018
A.A.NAKKIRAN, J
gv
CMA.No.1302 of 2018
03.04.2023
https://www.mhc.tn.gov.in/judis
