Madras High Court
Krishnan vs Mr.K. Purushothaman on 29 August, 2023
C.M.A.No.2249 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
C.M.A.No.2249 of 2014
Krishnan ...Petitioner / Appellant
Vs.
1. Mr.K. Purushothaman.
2. The Branch Manager,
National Insurance company Ltd.,
Branch Office,
No.163/1-B, I Floor,
Salem – Bhavani Main Road,
Sankagiri – 637 301 . … Respondents / Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated
05.03.2012 made in M.C.O.P.No.580 of 2009 on the file of the Motor
Accidents Claims Tribunal, Additional Special Judge, Krishnagiri.
For Appellant : Mr.M.Sriram
For Respondents : R1 - Ex-parte before Tribunal
Mr.J.Chandran for R2
1/11
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C.M.A.No.2249 of 2014
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the claimant in
M.C.O.P.No.580 of 2009, aggrieved over the quantum of compensation
awarded by the Motor Accident Claims Tribunal / Special Judge,
Krishnagiri, wherein the Motor Accidents Claims Tribunal has awarded a
sum of Rs.1,64,013/- as compensation for the injuries sustained by the
claimant in the accident that took place on 18.11.2007.
2. For the sake of convenience, the parties are referred to herein
according to their litigative status before the Tribunal.
3. On 18.11.2007, at about 9.30 p.m, the petitioner was travelling in a
auto bearing Registration No.TN.07/B.6451 from Hosur to Chinna Elasagiri
and when the auto was proceeding 'U' turn near Dharga Muthumariyamman
Koil, a lorry bearing Registration No.TN.30/Y.8277 belonging to the first
respondent came in the opposite direction in a rash and negligent manner
and dashed against the auto and dragged the auto to a distance of 20 feet.
Due to the impact, the driver of the auto as well as the petitioner sustained
grievous injuries. A criminal case was also registered against the driver of
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C.M.A.No.2249 of 2014
the lorry under Sections 279, 338 and 304 (A) of I.P.C by the Hosur TIW
Police. Hence, the petitioner claimed compensation for a sum of
Rs.5,00,000/- under various heads.
4. The first respondent - lorry owner, remained ex-parte before the
Tribunal. The second respondent is the Insurance Company countered that
the accident was occurred only due to rash and negligent driving of the auto
driver who had not driven the vehicle cautiously and suddenly entered into
the highway from one side to other side, which resulted in the accident.
Hence, the auto driver is responsible for the accident. The claimant has to
prove his case for his claim under various heads.
5. Before the Tribunal, the claimant was examined as PW1 and
Dr.Devendiran, who has issued the disability certificate for the claimant was
examined as PW2 and the documents Exs.P1 to P8 were marked. On the
side of the respondents, RW1-R.Kumar was examined and one document
Ex.R1 / Final report was marked.
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C.M.A.No.2249 of 2014
6. The Tribunal after considering the evidence placed on record had
held that there is negligence on the part of both the auto driver and the lorry
driver. Hence, the liability has been fixed on the auto driver as well as lorry
driver equally. Therefore, the Tribunal has awarded a sum of Rs.1,64,013/-
as compensation under various heads.
7. The learned counsel for the appellant / claimant would submit that
without proper appreciation of the evidence placed on record, the Tribunal
had wrongly held that the auto driver is also responsible for the accident
which needs to be set aside and the quantum fixed by the Tribunal is also
not in accordance with the norms followed by the Courts for fixing the
compensation. Hence, the learned counsel for the appellant / claimant prays
to enhance the same.
8. The learned counsel for the second respondent / Insurance
Company submitted that based on the evidence placed on record and the fact
that the accident had occurred while taking U-turn by the auto driver, the
Tribunal had rightly held that the auto driver had also contributed to the
accident and the contributory negligence on the part of auto driver was fixed
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C.M.A.No.2249 of 2014
at 50%. Accordingly, the Tribunal had directed the second respondent /
Insurance Company to pay 50% of the award amount of Rs.82,006.50/- to
the appellant and the balance 50% of the award amount shall be borne by
the appellant himself.
9. I have considered the rival submissions and perused the materials
placed before this Court.
10. The Tribunal has only based on the recitals in the FIR concluded
that the auto driver while driving the vehicle had not taken due care and
caution and hence, fixed 50% liability on the appellant / claimant. It is also
held that since the auto driver was taking U-turn in the highway, he must
have taken additional care of looking on both sides and thereafter, he must
have entered into the highway, especially when there is a bigger vehicle
which was coming in the other direction. Whereas, in the cross-examination
of PW1, no such suggestion was raised or any document to show the sketch
or the plan or to show the manner in which the accident had occurred was
produced before the Tribunal. The finding that the auto driver had taken
U-turn without due care and caution and hence, the accident had happened
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C.M.A.No.2249 of 2014
is on mere assumption and without any evidence placed on record. Hence,
this Court is of the view that, the finding that the appellant / claimant had
also contributed to the accident is not sustainable and the same is liable to
be set aside.
11. Accordingly, the award denying the payment of compensation to
the appellant / claimant to the extent of 50% on the ground that he had also
contributed to the accident is set aside and the lorry driver is to be held
responsible for the entire accident and as an insurer, the second respondent
shall pay the compensation to the appellant / claimant.
12. Accordingly, the second respondent shall pay the compensation
already decided by the Tribunal. As far as the disability is concerned, the
Tribunal had considered the evidence of PW2-Doctor, who had deposed that
the appellant / claimant was given femur inter locking nailing right and
cylindrical cast application and PW2-Doctor assessed the petitioner's
disability at 50%. The Tribunal had not accepted the assessment and had
held that the appellant / claimant had not suffered any amputation and
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C.M.A.No.2249 of 2014
hence, fixed the disability at 30% and awarded Rs.2,000/- per percentage of
disability.
13. This Court finds that awarding Rs.2,000/- per percentage of
disability for the accident occurred in the year 2007 is proper and the same
does not require any modification.
14. Considering the nature of injuries, this Court is of the view that
the meagre amount of Rs.20,000/- awarded by the Tribunal for Pain and
Sufferings is hereby enhanced to Rs.30,000/- and the award for Loss of
Amenities is hereby enhanced from Rs.10,000/- to Rs.20,000/-. The
Tribunal has not awarded any amount with regard to Transportation and
Hospital and hence, this Court is inclined to fix a compensation of
Rs.10,000/- for Transportation and Hospital. This Court is of the considered
view that the amounts awarded by the Tribunal under other heads are just
and reasonable and hence, the same is hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
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C.M.A.No.2249 of 2014
S. Description Amount Amount Award
No awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted
1. Temporary Disability Rs.60,000/- - Confirmed
2. Partial Loss of Income Rs.27,000/- - Confirmed
3. Hospital and Medical Rs.37,013/- - Confirmed
Bills
4. Nutritious Food Rs.5,000/- - Confirmed
5. Attenders Expenses Rs.5,000/- - Confirmed
6. Pain and Sufferings Rs.20,000/- Rs.30,000/- Enhanced
7. Loss of Amenities Rs.10,000/- Rs.20,000/- Enhanced
8. Transportation and - Rs.10,000/- Granted
Hospital
Total Rs.1,64,013/- Rs.1,94,013/- Enhanced by
Rs.30,000/-
15. In the result, this Civil Miscellaneous Appeal is partly allowed. The
apportionment of liability for the accident fixed on the claimant is hereby set
aside and the compensation awarded by the Tribunal at Rs.1,64,013/- is
hereby enhanced to Rs.1,94,013/- together with interest @ 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 entire award
amount now determined by this Court along with interest and costs, less the
amount already deposited, if any, within a period of six weeks from the date
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C.M.A.No.2249 of 2014
of receipt of a copy of this judgment, to the credit of M.C.O.P.No.580 of
2009 on the file of the Motor Accident Claims Tribunal, Additional Special
Judge Krishnagiri. 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, as laid down by the Division Bench
of this Court in the case of The Divisional Manager, The Oriental
Insurance Company Ltd., Kannur vs Rajesh and others in C.M.A.No.428
of 2016, dated 11.03.2016 reported in 2016 (2) LW 561. Since this Court
has enhanced the compensation, the appellant / claimant is directed to pay
necessary Court fee, if any, on the enhanced compensation. In other aspects,
the award of the Tribunal shall stand confirmed. There shall be no order as
to costs in the present appeal.
29.08.2023
Index:Yes / No
Speaking Order:Yes / No
Neutral Citation Case: Yes / No
stn / vji
https://www.mhc.tn.gov.in/judis
C.M.A.No.2249 of 2014
To
1. The Motor Accidents Claims Tribunal,
Additional Special Judge Krishnagiri.
2. The Section Officer,
V.R.Section,
High Court, Chennai.
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C.M.A.No.2249 of 2014
K.RAJASEKAR, J.
stn / vji
C.M.A.No.2249 of 2014
29.08.2023
https://www.mhc.tn.gov.in/judis
