Madras High Court
K.Periyasamy vs M.Madeswaran on 22 August, 2023
C.M.A.No.2232 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 22.08.2023
CORAM
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
Civil Miscellaneous Appeal No.2232 of 2014
K.Periyasamy ... Appellant
Vs.
1.M.Madeswaran
2.IFFCO Tokio General Insurance Company Ltd.,
Tulsi Chambers
No.195, TV Samy Road (W)
R.S.Puram
Coimbatore
Branch Office:
Opp: Fairlands Police Station
Alagapuram Post
Salem-16. ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree passed in
MCOP.No.233 of 2006, dated 17.09.2009 on the file of the Motor
Accidents Claims Tribunal, Fast Track Court No.I, Salem.
For Appellant : Mr. G.Pugazhenthi
For Respondents : Ms.K.Saraswathi
for Mr.C.R.Krishnamoorthi for R2
1/14
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C.M.A.No.2232 of 2014
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant
against the award dated 17.09.2009 made in M.C.O.P.No.233 of 2006 on
the file of the Motor Accidents Claims Tribunal, Fast Track Court No.I,
Salem, seeking enhancement of compensation.
2. According to the appellant/claimant that on 08.12.2005 at about
10.00 hours, he was travelling, as a pillion rider in Bajaj M80 two wheeler
bearing Registration No.TN-30-A-3859, which was ridden by one
Rajasekar, on Salem-Ellam Pllai Main Road. When they were nearing
Pathampatty Thirumurthy House, a motorcycle bearing Registration
No.TN29-Q-6158 'Yamaha Crux', which was owned by the first respondent
and insured with the second respondent, came in a rash and negligent
manner and hit their vehicle. Due to the impact, he along with rider of his
two wheeler were thrown away from the bike and they sustained grievous
injuries. Subsequently, the claimant took treatment as inpatient over a
month wherein his right leg got amputated and thereafter, he took
continuous treatment as out-patient at various Hospitals.
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C.M.A.No.2232 of 2014
3. It is his further case that at the time of the accident, he was a
power-loom weaver and earning Rs.5,000/- per month. Due to the accident,
he was not able to continue his work. Hence, he made a claim of
Rs.10,00,000/- as compensation.
4. The second respondent/Insurance Company filed counter and
denied all the averments made by the claimant, particularly, denied the
manner of accident as alleged by the claimant. It is stated that due to the
negligent act of the rider of the Bajaj M80, the accident had occurred. The
Insurance Company is not liable to pay compensation to the claimant. In
any event, the quantum of compensation claimed by the claimant is highly
excessive and prayed for dismissal of the claim petition.
5. Before the Tribunal, on the side of the claimant, he examined
himself as PW1 and also examined the Doctor, who gave disability
certificate, as PW2 and marked Exs.A1 to A5. On the side of the Insurance
Company, RW1 was examined and Exs.B1 to B7 were marked.
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C.M.A.No.2232 of 2014
6. The Tribunal after considering the pleadings, oral and documentary
evidence, held that the accident had occurred only due to rash and negligent
driving of the rider of the motorcycle bearing Registration No.TN29-Q-
6158 Yamaha Crux belonging to the first respondent. Since the rider of the
motorcycle bearing Registration No.TN29-Q-6158 did not possess valid
driving licence, the Tribunal directed the first respondent/owner of the
vehicle to pay a sum of Rs.1,00,000/- as compensation to the appellant.
7. Not being satisfied with the award of the Tribunal, the appellant
has come forward with the present appeal seeking enhancement of
compensation and against finding absolving the liability of the Insurance
Company of offending vehicle.
8. Heard the learned counsel for both sides and perused the materials
placed on record.
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C.M.A.No.2232 of 2014
9. The learned counsel appearing for the appellant/claimant would
submit that without any basis or any evidence, the Tribunal has arrived its
conclusion that there is a violation of policy condition on the ground that
the rider of the two wheeler in which the appellant was travelled as a pillion
rider was not having driving licence. Similarly the quantum fixed for the
compensation is also very meagre and no 'multiplier' method was adopted to
arrive the loss of income.
10. The learned counsel for the second respondent/Insurance
Company would submit that the Insurance Company examined a witness of
the Insurance Company, who deposed that in spite of notice to the
driver/owner of the two wheeler, in which the appellant travelled, to
produce the driving licence, the same was not produced. Hence, the trial
Court has rightly come to the conclusion that the driver of the motor cycle
was not having valid licence. Hence, the Insurance Company was absolved
from liability and the same is proper.
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C.M.A.No.2232 of 2014
11. It is seen from the records that the second respondent/Insurance
Company have issued a letter calling upon the licence details about the
offending vehicle and the same was received by the rider of the two-wheeler
as well as the owner of the vehicle. The acknowledgement cards were
marked as Ex.P6 and Ex.P7. After receiving the legal notice as well as the
letter of the Insurance Company, both the rider of the vehicle and the owner
of the two-wheeler have not given any reply. Based on the above documents
and after recording the evidence of the Insurance Officials in support of the
their claim, the Tribunal has accepted the case of the Insurance Company
that the rider of the vehicle was not having any valid driving licence at the
time of occurrence. The Insurance Company has not taken any steps to
examine the official from the Regional Transport authority, who is the
authorised Officer to issue the driving licence. Even though, the Insurance
Company has taken steps to gather information regarding the driving
licence from the driver and owner of the offending vehicle, the failure to
examine the official from the Regional Transport Office is fatal to their
case. Without examining the Regional Transport Official, their efforts to
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C.M.A.No.2232 of 2014
gather the information regarding the driving licence alone is not sufficient,
to prove that the rider was not possessing the driving licence at the time of
the accident.
12. The Tribunal has failed to note the fact that the injured is the
third party in respect of the Insurance Company of the offending vehicle
i.e., yamaha crux and the Insurance Company has not disputed the negligent
Act of the driver of the Motorcycle bearing registration number TN-29-Q-
6158 belonging to the first respondent and insured with the second
respondent / Insurance Company.
13. If there is violation of policy condition with regard to non-
possession of the valid driving licence, pay and recovery to be ordered.
Considering the fact that the injured is a third party, applying the principle
laid down by the Hon'ble Supreme Court in National Insurance Co. Ltd.
Vs. Swaransingh and others reported in 2004 (3) SCC 297, the Tribunal
ought to have followed the principle of 'pay and recover', but, this aspect
has not been considered by the Tribunal.
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C.M.A.No.2232 of 2014
14. This Court is of the view that the injured in this case is a third
party as far as the owner and the Insurance Company of the offending
vehicle is concerned. Therefore, I am inclined to modify the award to the
extent that the second respondent is liable to pay the compensation at the
first instance and entitled to recover the same from the owner of the vehicle.
15. With regard to the quantum of compensation, the Tribunal has
awarded a total compensation of Rs.1,00,000/- by granting Rs.1,000/- per
percentage of injury, for the case of amputation. It is settled law that for the
case of amputation is concerned, the proper method of granting
compensation by adopting multiplier method. In this case, Ex.A4 is the
disability certificate, which was marked by PW2/Doctor, who has assessed
the disability of the appellant and the following injuries are given
hereunder:
"(i) Loss of right lower limb 15cm from the level of
Trochawtez, the above knee amputation up to upper 1/3rd of thigh.
(ii) He is unable to walk independently and using stick for
the walking purpose
(iii) Unable to do manual work & unable to climb stairs &
ups & downs."
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C.M.A.No.2232 of 2014
The doctor assessed the permanent disability at 85%. As per the Ex.A3-
discharge summary, the injured was admitted to the hospital on 08.12.2005
and discharged on 04.02.2006. He has subsequently undergone treatment
regularly till 21.08.2006. This is the case of amputation and the claimant
has lost his right leg above the knee up to upper 1/3rd of thigh. In the case
of Rajkumar vs Ajay kumar and another reported in 2011 (1) SCC 343,
the Hon'ble Apex Court held that before applying the disability factor for
determination of compensation, the age, avocation of the claimant and
circumstances of the case should be considered. This Court is of the view
that the loss of earning capacity of the claimant would be 60% and
accordingly the claimant is entitled to the compensation for the loss of
earning capacity by adopting multiplier method. The accident has occurred
in the year 2005 and the notional income fixed by this Court for the year
2005 is Rs.4,500/-. The claimant was aged about 55 years at the time of
accident. Therefore, the claimant is entitled for future prospects as held by
the Hon'ble Apex Court in Jagdish vs. Mohan and Others reported in
(2018) 4 SCC 571 and Erudhaya Priya vs. State Express Transport
Corporation Ltd., reported in 2020 SSCR 299, 2020 ACJ 2159 Website
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C.M.A.No.2232 of 2014
and accordingly, 10% is awarded as future prospects. The multiplier is
applied as '11', by following Sarla Verma and others Vs. Delhi Transport
Corporation and another reported in 2009 ACJ 1298 SC : 2009 (6) SCC
121. Loss of earning capacity is assessed as follows: Rs.3,92,040/-
[Rs.4,500/- + Rs.450/- (10% of Rs.4,500/-) = Rs.4,950/- X 12 X 11 X 60% ]
16. For loss of income during the treatment period, this Court is
inclined to grant four months wages and accordingly, Rs.18,000/-
(Rs.4,500/- X 4) is awarded under this head. The Tribunal has not awarded
any amount of compensation under the heads 'Loss of amenities, Pain and
Sufferings, Extra Nourishment, Attender Charges and Transportation
Charges”. Hence, this Court awards a sum of Rs.25,000/- towards loss of
amenities, Rs.30,000/- towards 'Pain and Suffering', Rs.10,000/- towards
Extra Nourishment, Rs.10,000/- towards attender charges and Rs.5,000/-
towards transportation charges.
17. Accordingly, the award passed by the Tribunal under various
heads are hereby modified as follows:
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C.M.A.No.2232 of 2014
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) reduced
1. Disability Rs.1,00,000/- ---- Rejected
2. Loss of earning capacity --- Rs. 3,92,040/- Granted
3. Loss of income during --- Rs.18,000/- Granted
treatment period
4. Loss of ameinities ---- Rs.25,000/- Granted
5. Pain and Sufferings ---- Rs.30,000/- Granted
6. Extra Nourishment ---- Rs.10,000/- Granted
7. Attender Charges ---- Rs.10,000/- Granted
8. Transportation Charges ---- Rs.5,000/- Granted
Total Rs.1,00,000/- Rs.4,90,040/- Enhanced by
Rs.3,90,040/-
18. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the Tribunal at Rs.1,00,000/- is hereby
enhanced to Rs.4,90,040/- [Rupees Four Lakhs Ninety Thousand and Fourty
only] together along with interest at the rate of 7.5% per annum from the
date of filing of Claim Petition till the date of deposit. The Second
Respondent -Insurance Company is directed to deposit the amount awarded
by this Court 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
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C.M.A.No.2232 of 2014
copy of this judgment to the credit of M.C.O.P.No.233 of 2006 on the file of
the Motor Accidents Claims Tribunal, Fast Track Court No.1, Salem, at the
first instance and recover the same from the owner of the vehicle. On such
deposit, the appellant is permitted to withdraw the award amount now
determined by this Court along with interest and costs, less the amount if
any, already withdrawn. The Tribunal shall disburse the amount now
awarded by this Court by directly giving credit to the Savings Bank
Account of the claimant. Since this Court has enhanced the compensation,
the appellant/claimant is directed to pay the necessary Court fee, if any, on
the enhanced compensation. There shall be no order as to costs in the
present appeal.
22.08.2023
stn/av
Index : Yes / No
Speaking Order: Yes / No
Neutral Citation Case : Yes/No
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C.M.A.No.2232 of 2014
To
1. The Motor Accident Claims Tribunal,
Fast Track Court No.I, Salem.
2. The Section Officer,
VR Section,
High Court, Madras.
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C.M.A.No.2232 of 2014
K.RAJASEKAR, J.
stn/av
C.M.A.No.2232 of 2014
22.08.2023
https://www.mhc.tn.gov.in/judis
