Madras High Court

T.Rajasekar vs R.Sampathkumar on 13 June, 2023

                                                                          C.M.A.No.717 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 Dated: 13.06.2023

                                                      Coram:

                                     THE HONOURABLE MRS.JUSTICE N.MALA

                                                CMA.No.717 of 2022


                T.Rajasekar
                                                                               ...Appellant

                                                          Vs.
                1.R.Sampathkumar
                2.P.Rankaraj

                3.HDFC ERGO General Insurance Company Ltd.,
                Branch Office at 4th Floor,
                Raja Narayanan Towers,
                Race Coerce Road, Gopalapuram,
                Coimbatore-641 018.

                                                                           ...Respondents

                Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
                Vehicles Act, 1988 challenging the Judgment and decree passed in
                M.C.O.P.No.1983 of 2018 dated 29.12.2021 on the file of Motor Accidents
                Claims Tribunal, Chief Judicial Magistrate, Coimbatore.


                          For Appellant : Mr.S.P.Yuaraj
                          For RR1 and 2 : Ex-parte
                          For R-3          : Mr.N.Somasundar

https://www.mhc.tn.gov.in/judis
                1/10
                                                                                 C.M.A.No.717 of 2022

                                                   JUDGMENT

This appeal is filed challenging the Judgment and decree passed in

M.C.O.P.No.1983 of 2018 dated 29.12.2021 on the file of Motor Accidents

Claims Tribunal, Chief Judicial Magistrate, Coimbatore.

2. The appeal is filed by the claimant seeking enhancement of

compensation. According to the claimant, on 26.08.2018, while he was driving

along with two other, in a motor cycle, a car driven by its driver in a rash and

negligence manner, came in the opposite direction and dashed against the two-

wheeler, causing grievous injuries to the claimant.

3. According to the claimant, he was working as a Coolie and earning a

sum of Rs.10,000/- per month. The claimant was aged 36 years at the time of

accident and due to the injuries sustained, he was not able to do his work as

before. The claimant therefore filed claim petition seeking Rs.10,00,000/- as

compensation.

4. The first and second respondent are the driver and owner of the car

and they remained ex-parte before the Tribunal and the claim petition was

contested by third respondent/Insurance Company.

https://www.mhc.tn.gov.in/judis

C.M.A.No.717 of 2022

5. The third respondent/Insurance company filed detailed counter

denying the accident, negligence, liability and quantum. According to the third

respondent, the claimant contributed to the accident as he was in drunked mood

at the time of the accident and also the rider of the two-wheeler did not possess

a valid driving license at the time of the accident.

6. Before the Claims Tribunal, the claimant examined himself as P.W.1

and marked Ex.P.1 to Ex.P.11. The disability certificate issued by the Medical

Board was marked as Ex.C.1. On the side of the respondents, one witness was

examined before the Tribunal and four documents were marked.

7. The Claims Tribunal, on an assessment of the entire evidence on

record, found that the claimant contributed to the accident and therefore

Tribunal deducted 30% towards contributory negligence of the claimant.

8. The Claims Tribunal fixed the total compensation at Rs.1,95,425/-,

deducted 30% towards the claimant's contributory negligence and awarded a

sum of Rs.1,36,797/- along with 7.5% interest as compensation. Not satisfied

with the quantum of compensation awarded by the Claims Tribunal, the

claimant has filed the above appeal. The appeal is also filed questioning the https://www.mhc.tn.gov.in/judis

C.M.A.No.717 of 2022

finding on contributory negligence.

9. The learned counsel for the appellant submitted that the claimant was

only a pillion rider and as such he could not have contributed to the accident.

The learned counsel therefore submitted that the deduction of 30% towards

contributory negligence is unsustainable. He further submitted that the Claims

Tribunal erred in awarding Rs.1,000/- per percentage of disability, over looking

the fact that the accident had taken place in the year 2018. The learned counsel

further submitted that the award towards other heads were very much on the

lower side and disproportionate to the injuries sustained by the claimant.

10. The learned counsel for the 3rd respondent/ Insurance company on the

other hand, submitted that the Claims Tribunal was justified in deducting 30%

towards contributory negligence of the claimant as he in cross-examination had

admitted that he was in a drunken state at the time of the accident. The learned

counsel further submitted that the award of the Claims Tribunal towards the

other heads were just, fair and reasonable.

11. I have heard both the learned counsel and have perused the materials

placed on record.

https://www.mhc.tn.gov.in/judis

C.M.A.No.717 of 2022

12. It is seen that the claimant was triple riding, and all the three were in

a drunken mode at the time of the accident. The rider of the two-wheeler did

not have valid driving licence. The Claims Tribunal therefore on a

consideration of the evidence on record, particularly the evidence of P.W.1 and

Ex.R.2, the Accident Register, found that the claimant had contributed to the

accident and deducted 30% towards contributory negligence of the claimant. I

do not agree with the submissions of the learned counsel for the appellant that

as the appellant was pillion riding, he could not have contributed to the

accident. Ex.R.2, the Accident Register clearly reveals that the claimant was

drunk. The claimant in his cross-examination admitted the statement in Ex.R.2.

Therefore, I find no infirmity in the finding of the Claims Tribunal, on

contributory negligence. Therefore, I confirm the finding of the Claims

Tribunal on negligence and deduction of 30% thereof.

13. As regards the quantum of compensation, I find that the Claims

Tribunal, accepted Ex.C.1, the disability certificate where under the disability

was assessed at 50%. In my view, as the accident took place in the year 2018

the claimant would be entitled to Rs.5,000/- per percentage as laid down in the

case of M.Chinnathambi Vs. S.Deepa reported in 2020(1) TNMAC 617.

Therefore the award towards permanent disability is arrived at Rs.2,50,000/- https://www.mhc.tn.gov.in/judis

C.M.A.No.717 of 2022

(Rs.5,000 x 50% = 2,50,000/-)

14. Considering the nature of injuries sustained by the claimant and the

period of hospitalisation the amounts under the other heads are modified. No

doubt, there is no proof to support the income of the claimant, but in any event,

as the accident took place in the year 2018, taking into consideration the cost

escalation, for the year 2018, the income is arrived at Rs.9,000/- per month.

Therefore, the compensation towards loss of income is fixed at Rs.54,000/-

(Rs.9,000/- per month for six month). From Ex.P.2, it is seen that the claimant

was hospitalised on 26.08.2018 and discharged on 06.09.2018. Several entries

thereafter would clearly show that the claimant was treated till 06.04.2019.

Hence the award under other heads, in my view, need to be enhanced.

15. In the light of the said discussion, the award of the Claims Tribunal is

modified as follows:




                 S.No.                Various Heads           Award by Tribunal    Award by this court
                                                               (amount in Rs.)      (amount in Rs.)
                 1.        For injury sustained              50,000/-             2,50,000/-
                 2.        Pain and Sufferings               50,000/-             50,000/-
                 3.        Medical Bill                      6,423.61/-           6,423/-
                 4.        Attender Charges                  5,000/-              20,000/-

https://www.mhc.tn.gov.in/judis

                                                                                        C.M.A.No.717 of 2022


                 S.No.                 Various Heads             Award by Tribunal    Award by this court
                                                                  (amount in Rs.)      (amount in Rs.)
                 5.        Extra Nourishment                    5,000/-              15,000/-
                 6.        Damage to Cloths                     3,000/-              3,000/-
                 7.        Loss of amenities/ Loss of comfort   20,000/-             20,000/-
                 8.        Transport Charges                    5,000/-              15,000/-
                 9.        Loss of income                       51,000/-             54,000/-
                                  Total compensation            1,95,424/-           4,33,423/-
                                                                                     after 30% deduction
                                                                                     3,03,397/- (rounded
                                                                                     off to Rs.3,03,400/-)

In view of my finding on negligence 30% is deducted towards contributory

negligence of the claimant and the enhanced amount is arrived at Rs.3,03,400/-

along with 7.5% interest from the date of claim petition till the date of deposit

within a period of six (6) weeks from the date of receipt of copy of this

Judgment.

16. It is submitted by the learned counsel for the appellant that award of

the Claims Tribunal was satisfied and therefore a direction is issued to the third

respondent/Insurance Company to deposit the balance amount along with 7.5%

interest within a period of six (6) weeks from the date of receipt of copy of this

Judgment. On such deposit being made, the claimant shall be entitled to

withdraw the same.

https://www.mhc.tn.gov.in/judis