Madras High Court
Sampathkumar Vadivel vs Babu on 5 June, 2023
C.M.A.No.2583 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
C.M.A.No.2583 of 2019
Sampathkumar Vadivel ... Appellant/petitioner
Vs.
1. Babu
2. Murugesan
3. The United India Insurance Company Limited,
Mettupalayam.
... Respondents/Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Award and Decree made in
M.C.O.P.No.20 of 2018, dated 18.12.2018 on the file of the Motor Accidents
Claims Tribunal, Subordinate Court, Kangeyam.
For Appellant : Mr.G.C.Nelson Britto
For R1 & R2 : Notice dispensed with
For R3 : Mr.C.Paranthaman
1/10
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C.M.A.No.2583 of 2019
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant
against the award passed in M.C.O.P.No.20 of 2018 on the file of the Motor
Accidents Claims Tribunal / Subordinate Court at Kangeyam.
2. The appellant is the claimant who suffered injuries in the road
traffic accident held on 12.12.2011 on Kangeyam to Coimbatore Road, near
Agasthilingampalayam City Tyres Company. The first respondent herein is
the driver of the offending vehicle, namely Maruti Omni Van, bearing
registration No.TN 04 C 8657. The second respondent is the owner of the said
Maruthi Omni Van and the third respondent herein is the insurer of the said
vehicle.
3. The appellant has suffered the following injuries“Head Injury
Left distal radius communited intraarticular fracture”. The appellant
claimed compensation of a sum of Rs.3,00,000/- along with interest to be
awarded before the Tribunal.
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C.M.A.No.2583 of 2019
4. The appellant examined himself as P.W.1 and marked
documents as Exs.P1 to P14. On the side of the respondents, the insurer of
the Insurance Company was examined as R.W.1 and Exs.R1 and R2 were
marked.
5. After full enquiry, the Tribunal has awarded a sum of
Rs.2,13,750/- with interest at the rate of 7.5% per annum from the date of
filing of the claim petition till the date of deposit, along with costs. The
claimant having not been satisfied with the award amount, has filed this
appeal seeking enhancement of compensation.
6. The learned counsel for the appellant/claimant submitted that
the appellant was working as a lorry driver and lost his earning capacity due
to the injuries sustained by him. The Tribunal has failed to consider the grant
of loss of income and also without even proper evidence, the Tribunal
imposed 25% of contributory negligence on the side of the appellant herein.
7. Per Contra, the learned counsel appearing for the third
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C.M.A.No.2583 of 2019
respondent/Insurance Company submitted that the Tribunal has properly
appreciated the evidence produced and awarded maximum compensation and
there is no ground made out for enhancement. The Tribunal has held that the
claimant has found to be under influence of alcohol at the time of accident.
The Government Hospital, Kangeyam has issued Accident Register and it
contains the recoding of the report after that the claimant was found to be had
liquor. Hence, he has been mulcted with contributory negligence of 25% of
the compensation amount, and he prays to dismiss the appeal.
8. The main ground urged by the appellant is that, contributory
negligence fixed by the Tribunal is not sustainable, since there is no evidence
produced before the Tribunal in this regard. The Tribunal has mulcted the
claimant with 25% of contributory negligence on the ground that the appellant
was found to be 'under the influence of Alcohol' at the time of driving his two-
wheeler and accepted the contention of the respondent.
9. In the counter filed before the Tribunal, the Insurance
Company has alleged that the Government Hospital, Kangeyam has issued
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C.M.A.No.2583 of 2019
Accident Register immediately after the accident to the claimant and it has
been recorded by the Doctor that the injured was under influence of Alcohol.
After making this allegation while cross-examining the claimant/P.W.1, no
question relating to 'drunk and drive' by the claimant has been put to him.
Similarly, they have not produced any oral evidence on their side instead, they
have only examined official from the Regional Transport Office to dispute the
licence of the claimant. On a perusal of the records it shows that the
respondents have not produced Accident Register alleged to be issued by the
Government Hospital, Kangeyam. The claimant has marked Ex.P7/Accident
Register issued by the KMCH Hospital, Coimbatore in which, there is no
mentioning about the consumption of Alcohol by the claimant. Similarly,
there is no contra evidence produced by the respondents to show that the
claimant has also contributed for the accident by his negligent act. The
Tribunal, in point No.1 has held that the accident was occurred due to the
negligent act of the Maruthi omni van driven by the first respondent driver,
after holding that the first respondent's driver is responsible for the accident,
without any reason and without any oral or documentary proof, the Tribunal
has deducted 25% of the total compensation i.e., out of Rs.2,85,000/- the
tribunal deducted Rs.71,250/- and awarded a sum of Rs.2,13,750/-
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C.M.A.No.2583 of 2019
10. In such circumstances, this Court is of the view that fixation
of contributory negligence against the appellant is not sustainable and finding
that he has also contributed for the accident is liable to be set aside.
11. The learned counsel for the appellant/claimant submitted that
with regard to loss of income, during the period of disablement, the Tribunal
has not awarded any compensation. The Tribunal has granted a sum of
Rs.5,000/- to the attender and has not granted any compensation towards
temporary loss of income during the period of disablement to the appellant.
12. On a perusal of the Discharge Summary, EX.P8, shows that
the appellant has undergone treatment as an in-patient for 8 days.
Accordingly, I am of the view that the claimant is entitled for temporary loss
of income for a period of one month. The appellant has not produced any
evidence to show his monthly income. However, he has come forward to
show that he was having heavy motor vehicle driving licence to show that he
was a driver at the time of accident and accordingly this Court fixed notional
income of the injured at Rs.6,000/-. Since he has undergone treatment as an
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C.M.A.No.2583 of 2019
in-patient for 8 days, I am inclined to grant loss of income for the period of
one month as Rs.6,000/-.
13. Accordingly, 25% deduction made by the Tribunal towards
contributory negligence is set aside and a sum of Rs.71,250/- is added and
also added the loss of income for a period of one month at Rs.6,000/-. The
appellant is entitled a total compensation of a sum of Rs.2,91,000/- which is
as follows:
S. Description Amount awarded Amount Award
No by Tribunal awarded by confirmed or
(Rs) this Court enhanced or
(Rs) granted
1. Disability Rs.90,000/- Rs.90,000/- Confirmed
2. Medical Bills Rs.1,35,000/- Rs.1,35,000/- Confirmed
3. Pain and Sufferings Rs.25,000/- Rs.25,000/- Confirmed
4. Nutrition Charges Rs.15,000/- Rs.15,000/- Confirmed
5. Transport Charges Rs.10,000/- Rs.10,000/- Confirmed
6. Future Medical Expenses Rs.5,000/- Rs.5,000/- Confirmed
7. Attender Charges Rs.5,000/- Rs.5,000/- Confirmed
Total Compensation Rs.2,85,000/- ---- ----
(Less) contributory Rs.71,250/- ---- ----
negligence 25%
Total Compensation Rs.2,13,750/- ---- ----
8. (Add) - Deducted amount ---- Rs.71,250/- Granted
of Contributory
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C.M.A.No.2583 of 2019
negligence 25%
9. (Add) - Loss of Income ---- Rs.6,000/- Granted
during the period of
disablement
Total Compensation Rs.2,13,750/- Rs.2,91,000/- Enhanced by
Rs.77,250/-
14. In the result, this Civil Miscellaneous Appeal is partly
allowed and the compensation awarded by the Tribunal is at Rs.2,13,750/- is
hereby enhanced to Rs.2,91,000/- [Rupees Two Lakhs Ninety One Thousand
only] together with interest at the rate of 7.5% per annum from the date of
claim petition till the date of deposit. The third respondent/Insurance
Company is directed to deposit the award amount, now determined by this
Court, along with interest and costs, less the amount already deposited, if any,
within a period of four weeks from the date of receipt of a copy of this
judgment to the credit of M.C.O.P.No.20 of 2018, on the file of the Motor
Accidents Claims Tribunal, Subordinate Court, Kangeyam. On such deposit,
the appellant/claimant is entitled to withdraw the amount, now awarded 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,
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C.M.A.No.2583 of 2019
as laid down by a 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.
05.06.2023
ssi
Index : Yes / No
Speaking Order: Yes / No
Neutral Citation Case : Yes/No
To
1.The Subordinate Judge,
Motor Accidents Claims Tribunal,
Kangeyam.
2.The Section Officer,
VR Section, High Court, Madras.
K.RAJASEKAR,J.,
ssi
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C.M.A.No.2583 of 2019
C.M.A.No.2583 of 2019
05.06.2023
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