Madras High Court
Branch Manager vs Palanisamy on 16 August, 2023
C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.08.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
C.M.A. No.552 of 2022
and C.M.P.No.3987 of 2022
Branch Manager,
Bajaj Allianz General Insurance Co Ltd.,
Old No.276 and 277, New No.497 and 498
Isanna Kattima Building, 6th Floor,
Poonamallee High Road,
Arumbakkam, Chennai. ... Appellant
Versus
1.Palanisamy
2.Ramu ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, seeking to set aside the judgment and decree dated
24.09.2021 passed in M.C.O.P. No.11 of 2018, by the Additional Motor
Accident Claims Tribunal, Puducherry.
For Appellant : Mr.T.K.Premkumar
For R1 : Ms.S.Hemamalini
Legal Aid Counsel
For R2 : No Appearance
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C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
JUDGMENT
This appeal has been filed by the appellant/Insurance Company
challenging the compensation awarded by the Tribunal in M.C.O.P.
No.11 of 2018, dated 24.09.2021.
2.The claim petition was filed stating that on 23.10.2017 at about
4.30 a.m., when the 1st respondent was walking in Kamarajar Salai,
Puducherry, the 2nd respondent drove his auto bearing Registration No.
PY-01-CG-3136, in a rash and negligent manner and dashed against the
1st respondent. Due to the said accident, the 1st respondent sustained
fractures and other injuries and admitted in the hospital. At the time of
accident, the 1st respondent was working as a coolie and earning a sum of
Rs.500 to Rs.600 per day and thus, he was entitled for compensation.
3.The 2nd respondent/owner cum driver of the offending vehicle
remained ex-parte before the Tribunal.
4.The appellant/Insurance Company filed counter denying all the
averments made in the claim petition and stated that in the present case
https://www.mhc.tn.gov.in/judis
C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
F.I.R was filed belatedly; that the 1st respondent suddenly crossed the
road, due to which the accident took place and thus the 1st respondent had
contributed to the accident; that hence, the appellant is not liable to pay
compensation to the 1st respondent; and that in any case, the
compensation claimed was excessive and prayed for dismissal of the
claim petition.
5.Before the Tribunal, the 1st respondent/claimant examined
himself as P.W.1 and marked Ex.P.1 to Ex.P.14 on his side. The
appellant/Insurance Company examined one witness on their side and
marked Ex.R1-rough sketch. The disability certificate was marked as
Ex.C1.
6.The Tribunal after considering the oral and documentary
evidence held that the accident occurred due to the rash and negligent
driving by the driver of the auto belonging to the 2nd respondent and
being the insurer, directed the appellant/Insurance Company to pay a sum
of Rs.7,85,000/- as compensation to the 1st respondent.
https://www.mhc.tn.gov.in/judis
C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
7.Aggrieved over the award passed by the Tribunal, the
appellant/Insurance Company filed the present appeal challenging the
negligence as well as quantum of compensation.
8.The learned counsel appearing for the appellant/Insurance
Company submitted that there is evidence to show that the 1st respondent
had not crossed the road in the pedestrian crossing and also contributed
to the accident; that the accident took place at 4.30 a.m; that therefore,
the contributory negligence cannot be ruled out and that however, the
Tribunal fixed the entire negligence on the driver of the auto. The learned
counsel further submitted that the 1st respondent had suffered two
fractures, one on temporal bone and another on right shoulder Clavicle
bone for which he was treated in the hospital for 11 days. However, the
Tribunal had awarded exemplary compensation under the head pain and
suffering, extra nourishment, attender charges and loss of income. The
compensation therefore is excessive and has to be reduced and prayed for
allowing the appeal.
https://www.mhc.tn.gov.in/judis
C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
9.Though notice has been served on the 1st respondent/claimant,
none entered appearance. Therefore, this Court appointed
Ms.S.Hemamalini, as legal aid counsel for the 1st rspondent. As regards
2nd respondent, notice could not be served by post and hence, this Court
directed the learned counsel for the appellant to serve the 2nd respondent
by way of paper publication. Accordingly, learned counsel for the
appellant effected service through paper publication and produced the
proof for having effected paper publication. Though the name of the 2 nd
respondent has been printed in the cause list, none entered appearance on
behalf of him.
10.Learned counsel for the 1st respondent submitted that the award
of compensation is just and reasonable. The 1st respondent was aged
about 67 years at the time of accident. Considering the nature of injuries
suffered by him, it cannot be said that the compensation awarded is
excessive. Further, in the absence of any evidence let in on the side of the
appellant/Insurance Company to contradict the evidence let in by the 1st
respondent/claimant, the award of the Tribunal is justified and no
interference is called for and prayed for dismissal of the appeal.
https://www.mhc.tn.gov.in/judis
C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
11.The questions involved in the instant appeal are as follows:
1.Whether the Tribunal ought to have fixed contributory
negligence on the 1st respondent?
2.Whether the award of compensation is just and reasonable?
12.As regards the negligence, this Court finds that the 1st
respondent/claimant was examined as P.W.1 and he had stated in his
evidence that the accident took place due to the rash and negligent
driving of the 2nd respondent/owner cum driver of the auto. Though
P.W.1 was cross examined at length, nothing was elicited to discredit his
evidence. But the appellant had marked Ex.R1-rough sketch to show that
the accident could not have taken place in the manner alleged by the 1st
respondent. This Court is of the view that the Ex.R1 – rough sketch
which was marked through R.W.1, by itself could not lead to any
inference. In the absence of any contra evidence let in by the appellant,
the Tribunal was right in believing the evidence of P.W.1 and fixing
negligence on the driver of the auto. Hence, the entire negligence fixed
by the Tribunal against the 2nd respondent/owner cum of driver of the
auto is confirmed.
https://www.mhc.tn.gov.in/judis
C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
13.As regards quantum of compensation, this Court finds that the
award under the head disability at Rs.1,20,000/- is just and reasonable.
The Medical Board assessed disability at 24% and hence, Rs.5,000/- was
awarded per percentage, which is justified. However, the award under the
head pain and suffering at Rs.2,25,000/- is excessive. Considering the
nature of injuries, this Court is of the view that the compensation under
the head pain and suffering has to be reduced to Rs.50,000/-. The
respondent had taken treatment in the hospital for 11 days. The
compensation under the head extra nourishment also is excessive and the
just compensation would be Rs.25,000/-. Similarly, the compensation
awarded under the head attender charges is also reduced to Rs.30,000/-.
14.Further, the Tribunal had taken Rs.5,000/- as notional income
and observed that the 1st respondent/claimant would have suffered loss of
income for a period of four years and awarded a sum of Rs.2,00,000/-
under the head loss of income. Considering the avocation and year of
accident, this Court is of the view that the notional income fixed by the
Tribunal is meagre. The Tribunal ought to have fixed a sum Rs.10,000/-
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C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
per month as notional income and at the same time, in the absence of any
evidence, loss of income could not be computed by assuming that he
would have lost income for 4 years. Considering the nature of injuries,
this Court is of the view that loss of income could be for the period of six
months. Hence, a sum of Rs.2,00,000/- awarded towards loss of income
is reduced to Rs.60,000/- The amount awarded by the Tribunal under
other heads are just and reasonable. Thus, the compensation awarded by
the Tribunal is modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Disability 1,20,000 1,20,000 Confirmed
2. Pain and 2,25,000 50,000 Reduced
Sufferings
3. Extra 70,000 25,000 Reduced
Nourishment
4. Attender Charges 1,50,000 30,000 Reduced
5. Transportation 10,000 10,000 Confirmed
6. Medical Expenses 10,000 10,000 Confirmed
7. Loss of Income 2,00,000 60,000 Reduced
Total 7,85,000 3,05,000 Reduced by
Rs.4,80,000/-
15.With the above modification, this Civil Miscellaneous Appeal
is partly allowed and the compensation awarded by the Tribunal at
https://www.mhc.tn.gov.in/judis
C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
Rs.7,85,000/- is hereby reduced to Rs.3,05,000/- together with interest at
7.5% per annum (excluding the default period, if any) from the date of
petition till the date of deposit. The appellant/Insurance Company is
directed to deposit the modified award amount now determined by this
Court along with interest and costs, less the amount already deposited, if
any, within a period of four (4) weeks from the date of a receipt of copy
of this Judgment. On such deposit the 1st respondent is permitted to
withdraw the entire award amount now determined by this Court, along
with interest and cost, less amount already withdrawn, if any. No costs.
The appellant/Insurance Company is permitted to withdraw the excess
amount lying in the deposit to the credit of M.C.O.P.No.11 of 2018, if
the entire award amount has already been deposited by them.
Consequently, connected miscellaneous petition is closed.
16.08.2023
rst
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
https://www.mhc.tn.gov.in/judis
C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
SUNDER MOHAN, J.
rst
To:
1.The Additional Motor Accident Claims Tribunal,
Puducherry.
2.The Section Officer,
VR Section, High Court, Madras.
C.M.A.No.552 of 2022
and C.M.P.No.3987 of 2022
16.08.2023
https://www.mhc.tn.gov.in/judis
