Madras High Court
Manikandan vs Arun on 12 July, 2023
C.M.A.No.977 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 12.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.977 of 2022
Manikandan ...Appellant
Vs.
1.Arun
2.Tamilarasan
3.The United India Insurance Company Limited,
104-A, Ranga Building, Peramanur Main Road,
Near Four Roads, Salem 636 007.
4.Prakash
5.Selvaraj ...Respondents
PRAYER : The Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated 10.12.2021 in
M.C.O.P.No.1345 of 2018 on the file of the Motor Accident Claims Tribunal,
Special Subordinate Judge No.II, Salem.
For Appellant : Mr.C.Paraneedharan
For Respondents : M/s.I.Malar for R3
JUDGMENT
The Civil Miscellaneous Appeal is filed challenging the portion of the
award fixing 10% contributory negligence on the part of the appellant and for
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C.M.A.No.977 of 2022
enhancement of compensation granted by the Tribunal in the award dated
10.12.2021 made in M.C.O.P.No.1345 of 2018 on the file of Motor Accident
Claims Tribunal, Special Subordinate Judge No.II, Salem.
2. The appellant is the claimant in M.C.O.P.No.1345 of 2018 on the file
of Motor Accident Claims Tribunal, Special Subordinate Judge No.II, Salem.
He filed the said claim petition claiming a sum of Rs.15,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 22.01.2018.
3. According to the appellant, on the date of accident i.e., on 22.01.2018,
while he was traveling as a pillion rider in the motorcycle bearing registration
No.TN 54 F 9086, the rider of the motorcycle in a rash and negligent manner
dashed against the motorcycle bearing registration No.TN 30 Q 1865, which
was coming on the opposite direction and caused the accident; that the above
accident was reported to Kaaripatty Police Station and a case in Crime No.21 of
2018 was registered against the rider of the motorcycle bearing registration TN
54 F 9086 for the offence under Sections 279 and 337 of IPC; that due to the
accident, the appellant suffered grievous injuries and he was entitled to a
compensation of Rs.15 lakhs.
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C.M.A.No.977 of 2022
4. The respondents 1 to 3 are the rider, owner and insurer of the
motorcycle bearing registration No.TN 54 F 9086 respectively; the respondents
4 and 5 are the rider and owner of the motorcycle bearing registration No.TN
30 @ 1865 respectively. The respondents 1, 2 and 4 remained ex-parte before
the Tribunal.
5. The third respondent/Insurance Company filed counter statement,
denying the averments made in the claim petition and stated that the accident
was not due to the rash and negligent riding of the rider of the motorcycle
bearing registration No.TN 54 F 9086, since the appellant did not wear the
helmet at the time of accident and fell down on his own from the motorcycle
and he was not entitled for any compensation.
6. The fifth respondent filed counter statement, denying the averments
made in the claim petition and stated that the rider of the motorcycle bearing
registration No.TN 54 F 9086 was riding the motorcycle in a rash and negligent
manner, in which the appellant was a pillion rider and his two wheeler namely
TN 30 Q 1865 is not responsible for the accident.
7. Before the Tribunal, the appellant examined himself as P.W.1 and
Dr.Arun was examined as P.W.2 and marked 18 documents as Exs.P1 to P18.
The respondents did not let in any oral and documentary evidence.
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C.M.A.No.977 of 2022
8. The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent riding by the
rider of the motorcycle bearing registration No.TN 54 F 9086 belonging to the
second respondent, fixed 90% negligence on the part of the rider of the
motorcycle and 10% negligence on the part of the appellant for not wearing
helmet respectively, awarded a sum of Rs.3,49,982/- as compensation to the
appellant and directed the 3rd respondent/Insurance Company being insurer of
the said motorcycle to pay a sum of Rs.3,14,984/- i.e. 90% of the award amount
as compensation to the appellant.
9.The appellant has come out with the present appeal challenging the
portion of the award fixing 10% contributory negligence on the part of the
deceased as well as for enhancement of compensation.
10. The leanred counsel for the appellant submitted that the Tribunal
ought not to have fixed 10% contributory negligence on the appellant merely
because he did not wear the helmet at the time of accident. The learned counsel
further submitted that the appellant suffered multiple grievous injuries and
fractures and in such circumstances, the compensation awarded under the head
of pain and suffering is meagre. The learned counsel further submitted that the
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C.M.A.No.977 of 2022
Tribunal failed to award any amount towards future medical expenses and the
compensation awarded under all other heads are also meagre and prayed for
enhancement of compensation.
11. Per contra, the learned counsel for the third respondent/ Insurance
Company submitted that the Tribunal has awarded just compensation as per the
law laid down by the Hon'ble Apex Court as well as this Court and hence, there
is no necessity to interfere with the award passed by the Tribunal. Hence, he
prayed for dismissal of the appeal.
12. Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the third respondent/Insurance Company and
perused all the materials available on record.
13. This Court, on perusal of the pleadings and the judgment of the
Tribunal, finds that the Tribunal has awarded compensation under the following
heads in the following manner:
S.No Description Amount awarded by
Tribunal (Rs)
1. Loss of Permanent Disability (28% x Rs.5,000/-) 1,40,000
2. Pain and suffering 20,000
3. Loss of amenities 20,000
4. Medical expenses 1,12,982
5. Loss of income (Rs.8,000/- X 2 months) 16,000
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C.M.A.No.977 of 2022
S.No Description Amount awarded by
Tribunal (Rs)
6. Transportation charges 15,000
7. Extra nourishment 15,000
8. Attendant charges 10,000
9. Damage to clothes 1,000
Total Rs.3,49,982/-
14. Though the learned counsel for the appellant has stated that the
compensation under the head pain and suffering and loss of amenities are
meagre, he was unable to justify the claim for enhancement. It is also the
admitted case that the compensation under the head medical expenses was
awarded as per the bills produced by the appellant and hence, the same also
cannot be faulted with. There is no necessity for enhancing the compensation
awarded under the other heads. Admittedly, the appellant has suffered 28%
disability and the Tribunal had rightly awarded Rs.5,000/- per percentage of
disability and awarded Rs.1,40,000/- towards loss of permanent disability.
15. This Court also finds that the Tribunal found on the basis of the
evidence that the appellant did not wear a helmet at the time of accident. In
view of the said fact, the Tribunal was justified in fixing 10% contributory
negligence on the appellant. Therefore, for the above reasons, this Court is of
the view that the award of the Tribunal deserves to be confirmed in all aspects.
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C.M.A.No.977 of 2022
16. In the result, this Civil Miscellaneous Appeal is dismissed and the
sum of Rs.3,14,984/- awarded by the Tribunal as compensation to the appellant
along with interest and costs is confirmed. The third respondent /Insurance
Company is directed to deposit the entire award amount along with interest and
costs, less the amount already deposited, if any, within a period of twelve weeks
from the date of receipt of a copy of this judgment. On such deposit, the
appellant is permitted to withdraw the award amount along with proportionate
interest and costs, less the amount if any, already withdrawn. No costs.
12.07.2023
Index: Yes/No
Internet: Yes/No
vkr
To
1.The Motor Accident Claims Tribunal /
Special Subordinate Judge No.II, Salem.
2.The Section Officer
VR Section, High Court of Madras.
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C.M.A.No.977 of 2022
SUNDER MOHAN,J.
vkr
C.M.A.No.977 of 2022
12.07.2023
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