Madras High Court

United India Insurance Co.Ltd vs Masanam on 2 June, 2023

C.M.A.No.4396 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.06.2023

CORAM :

THE HONOURABLE MR. JUSTICE A.A. NAKKIRAN

Civil Miscellaneous Appeal No. 4396 of 2019
---
United India Insurance Co.Ltd.,
No.6, Railway Road,
Soolur. .. Appellant

Versus

1. Masanam
2. Shanmugaiyah
3. Anthony Lurthusamy

4.United India Insurance Co.Ltd.,
No.139, Kumaran Road,
Tiruppur. .. Respondents

Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the Judgment and decree dated 02.01.2019 made in
M.C.O.P.No.363 of 2011 on the file of the Motor Accident Claims Tribunal,
Chief Judicial Magistrate, Tiruppur.

For Appellant : Mr. J. Chandran

For R1 : Mr. Ma.P. Thangavel

For R2 : No such addressee

For R3 : Not Ready in Notice

For R4 : No Appearance

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C.M.A.No.4396 of 2019

JUDGMENT

The appellant/Insurance Company has come forward with this appeal

questioning the judgment and decree dated 02.01.2019 passed in M.C.O.P.

No. 363 of 2011 on the file of the Motor Accident Claims Tribunal, Chief

Judicial Magistrate, Tiruppur.

2. The claim petition in M.C.O.P. No. 363 of 2011 was filed by the

first respondent in this appeal.

3. As per the claim petition, on 14.01.2011 at about 12.15 a.m., the

claimant was riding his Car bearing Registration No.TN-39-AH-2277, when

the car was nearing a place called Kadhapullapatti, in Dharapuram to

Thiruppur Road, a car was proceeding in the opposite direction. According to

the claimant, the car coming in the opposite direction had bright head lights

and it had disturbed the view of the claimant. In that process, the claimant

could not see the Crane bearing Registration No.TN-09-R-8230 parked in the

road. The claimant dashed against the backside of the Crane and sustained

grievous injuries. According to the claimant, he was aged 44 years at the time

of accident and earning a sum of Rs.3,300/- per month by engaging himself in

doing Banian Company works. As the injuries sustained by him resulted in https://www.mhc.tn.gov.in/judis

C.M.A.No.4396 of 2019

permanent disability, he has filed a claim petition claiming a compensation of

Rs.8,00,000/- as compensation.

4. On notice, the third respondent in M.C.O.P. No. 363 of 2011

namely, United India Insurance Co.Ltd., the appellant herein, has filed a

counter statement. According to the third respondent/appellant it was the

claimant who drove the car negligently and hit against the Crane. Therefore, it

was the claimant who was negligent in driving the Car. There was no other

vehicle involved in the accident. Immediately after the accident, the claimant

did not give any complaint. However, one Sivaraj a friend of the claimant has

given a complaint by stating that an accident had occurred on 28.01.2011. On

the other hand, the accident had actually occurred on 14.01.2011. By

suppressing the date of accident a complaint was given as though the Crane

was parked in the middle of the road and it led to the accident. In fact, the

Investigating Officer conducted investigation in Crime No.717 of 2011 and

filed the final report only against the claimant for the offence under Section

279 of IPC. The claimant, being the tort-feasor, is not entitled to any

compensation payable by the Insurance Company. In any event, the accident

took place due to the rash and negligent driving of the claimant himself who

drove the car in a rash and negligent manner. There was no other vehicle https://www.mhc.tn.gov.in/judis

C.M.A.No.4396 of 2019

involved in the accident. While so, the Insurance Company cannot be mulcted

with the liability to pay compensation.

5. Before the Tribunal, on behalf of the claimant, the claimant himself

examined as P.W.1, Dr. Sendhil Kumar was examined as P.W.2 and Exs.P1 to

P9 were marked on behalf of the claimant. On behalf of the respondents, one

Mr.Balraj was examined as R.W.1 and Exs.R1 to R6 were marked.

6. The Tribunal, on appreciation of the oral and documentary evidence

held that there was an accident in which the car driven by the claimant had hit

the backside of the Crane. The Tribunal also concluded that for the injuries

sustained by the claimant in the accident, the Insurance Company is liable to

pay the compensation to him. In order to lend support to this conclusion, the

Tribunal placed reliance on the decision of the Hon'ble Rajasthan High Court

in United India Insurance Co.Ltd., Vs. Smt.Rekha, AIR 2007(NOC) 1548

(Raj) and concluded that even where negligence is on the part of the victim

himself still a petition filed under Section 163(A) of the Motor Vehicle is

maintainable.

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C.M.A.No.4396 of 2019

7. As regards the quantum, the tribunal concluded that P.W.2-Doctor

has assessed the disability at 47%. The tribunal awarded a sum of Rs.3,000/-

per percentage of disability and awarded a sum of Rs.1,41,000/-. For

transportation charges a sum of Rs.10,000/- was awarded. For extra

nourishment Rs.25,000/- was awarded. For pain and suffering Rs.1,00,000/-

was awarded. For mental agony, the tribunal awarded a sum of Rs.50,000/-. In

all a total sum of Rs.4,37,702.23/- was awarded as compensation.

8. Assailing the award passed by the tribunal, the learned counsel for

the appellant/Insurance Company contended that the injuries sustained by the

claimant are not such that they would deprive his earning prospects. The

learned counsel for the appellant invited the attention of this Court to the

claim petition and submitted that in Column No.1, it was merely stated that the

claimant suffered "grievous injuries". What was the injuries suffered him has

not been indicated in the claim petition. Similarly, the period of treatment

undergone by the claimant has not been proved. According to the counsel for

the appellant, the injuries suffered by the appellant does not warrant

compensation of Rs.1,00,000/- towards pain and suffering and it is excessive.

Similarly, the tribunal erred in awarding a sum of Rs.50,000/- towards mental

agony which is legally not sustainable. The learned counsel for the appellant https://www.mhc.tn.gov.in/judis

C.M.A.No.4396 of 2019

has also invited the attention of this Court to the deposition of R.W.3 and

stated that the claimant himself was prosecuted before the learned Judicial

Magistrate, Tharapuram for the offence under Section 279 of IPC and

ultimately, he paid a sum of Rs.500/- as fine. This would indicate that the

claimant is the tort-feasor and he is not entitled for any compensation payable

by the appellant/Insurance Company. Therefore, the learned counsel for the

appellant prayed for setting aside the award passed by the tribunal.

9. Per Contra, the learned counsel for the first respondent/claimant

submitted that before the tribunal, P.W.2/Doctor was examined who assessed

the disability at 47%. The claimant also filed medical bills under Ex.P5 to the

tune of Rs.1,10,382.23/- which would indicate the nature and gravity of

injuries suffered by him. That apart the claimant also marked Ex.P3-wound

certificate. Ex.P6 is another wound certificate issued in favour of the claimant.

Ex.P7 is the X-ray. The tribunal after analysing the entire material evidence

has passed a reasonable amount as compensation. The learned counsel for the

first respondent also submitted that the tribunal based on the material records

has stated that the claimant suffered injuries on his right leg in his fumour

bone and there is a fracture injury in the right thigh. During the course of

treatment, metal rods were implanted in the legs. Even though the claimant https://www.mhc.tn.gov.in/judis

C.M.A.No.4396 of 2019

suffered various other injuries, the Doctor has assessed the disability only at

47%. Taking note of the above, the tribunal awarded a reasonable sum of

compensation which is inconsonance with the injuries suffered by him.

Accordingly, the learned counsel prayed for dismissal of this appeal.

10. Heard both sides and perused the materials placed on record.

11. It is an admitted fact that the claimant suffered grievous injuries in

an accident while driving his own car. The Insurance Company is not

disputing the liability to pay the compensation. However, what is disputed is

that the compensation awarded by the tribunal is excessive.

12. This Court has gone through the award passed by the Tribunal.

PW2 Doctor assessed the disability suffered by the claimant at 47%. For 47%

disability suffered by the claimant, the Tribunal awarded a sum of Rs.3,000/-

per percentage of disability. This in the opinion of this Court is a just and fair

compensation. Similarity, based on the hospital bills produced by the claimant

to show the quantum of medical expenses incurred at Rs.1,10,382.23/-, it was

allowed by the Tribunal at actuals.

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C.M.A.No.4396 of 2019

13. At the same time, the tribunal awarded a sum of Rs.1,00,000/-

towards pain and suffering, which in the opinion of this Court is excessive.

Considering the fact that the claimant had suffered fracture in his right leg, he

had underwent surgery and metal plates were inserted in his right leg, this

Court can perceive that the pain and sufferings undergone by the claimant

would be enormous for which he has to be compensated. Having regard to the

above, this Court hereby reduces the sum of Rs.1,00,000/- awarded by the

tribunal and instead a sum of Rs.75,000/- is awarded.

14. The tribunal awarded a sum of Rs.50,000/- towards mental agony.

Awarding compensation under the head mental agony is legally not

sustainable in a case of this nature especially when already compensation was

paid for permanent disability, pain and sufferings, transportation and extra

nourishment. Therefore, the award of Rs.50,000/- towards mental agony

cannot be accepted. Accordingly, the amount of Rs.50,000/- towards mental

agony is hereby set aside. In all other aspects, the award of the Tribunal is

reasonable and therefore, they are confirmed.

15. Accordingly, the award of the Tribunal is modified as follows:



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                                                                                    C.M.A.No.4396 of 2019


                   S.N            Description    Amount           Amount             Award
                    o                           awarded by      awarded by        confirmed or
                                                 Tribunal        this Court       enhanced or
                                                   (Rs)             (Rs)            granted
                   1.       Permanent              1,41,000/-       1,41,000/-       Confirmed
                            disability
                   2.       Inpatient                  660/-             660/-       Confirmed
                   3.       Attendant                  660/-             660/-       Confirmed
                            charges
                   4.       Medical             1,10,382.23/-    1,10,382.23/-       Confirmed
                            expenses
                   5.       Nutrition               25,000/-          25,000/-       Confirmed
                   6.       Transportation          10,000/-          10,000/-       Confirmed
                   7.       Pain &                 1,00,000/-         75,000/-         Reduced
                            Sufferings
                   8.       Mental agony            50,000/-               ----        Reduced
                            Total               4,37,702.23/- 3,62,702.23/-
                                                Rounded off Rounded off to
                                                           to Rs.3,63,000/-        Reduced by
                                                Rs.4,38,000/-                         75,000/-

16. In the light of the above discussions, the award of the Tribunal is

modified and the compensation is fixed at Rs.3,63,000/- as against the

compensation awarded by the Tribunal at Rs.4,38,000/-. The first

respondent/claimant is entitled to Rs.3,63,000/- along with 7.5% as interest

per annum. The appellant insurance company is directed to pay the reduced

compensation amount within a period of six weeks from the date of receipt of

copy of this order, after deducting the amount, if any, already deposited. The https://www.mhc.tn.gov.in/judis

C.M.A.No.4396 of 2019

first respondent/ claimant shall be entitled to withdraw the above said amount

by making proper application before the Tribunal.

17. Accordingly, this Civil Miscellaneous Appeal is partly allowed.

No costs.