Madras High Court
The Manager vs K.Mahendiran ... 1St on 22 November, 2023
Author: M.Dhandapani
Bench: M.Dhandapani
C.M.A.No.4155 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.11.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.M.A.No.4155 of 2019
and C.M.P.No.23481 of 2019
The Manager,
M/s.Bharti AXA General Insurance Co.Ltd.,
Pride Quadra, No.30,
3rd Floor, Nellary Road, Hebbal,
Bangalore-24 ... Appellant/2nd Respondent
Vs
1.K.Mahendiran ... 1st Respondent/Petitioner
2.Francis Benny ... 2nd Respondent/1st Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, as against the Judgement and decree dated 14.03.2019
made in M.C.O.P.No.94 of 2019 on the file of the Motor Accidents Claims
Tribunal, Additional District and Sessions Judge, Krishnagiri.
For Appellant ... M/s.S.Arun Kumar
For Respondents ... Notice not ready [R1]
... No Appearance [R2]
Page No.1 of 8
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C.M.A.No.4155 of 2019
JUDGMENT
Chellenging the impugned award dated 14.03.2019 passed by the
Motor Accidents Claims Tribunal, Additional District and Sessions Judge,
Krishnagiri in M.C.O.P.No.94 of 2019, the Appellant-Insurance Company has
filed the present appeal.
2. It is the case of the claimant that on 18.08.2012, when the claimant
along with his friend was proceeding in the Motor cycle bearing Reg.No.KA-
53-X-9405, at about 10.30 p.m., on the Hosur, Krishnagiri National Highway,
the car belonging to the 2nd Respondent and insured with the Appellant-
Insurance Company bearing Reg.No.KA-03-MP-1984 driven by its driver in a
rash and negligent manner dashed against the vehicle driven by the claimant
when the claimant tried to overtake the vehicle. Due to the said accident, the
claimant sustained fracture and suffered grievous injuries all over the body.
Immediately after the accident, the claimant was taken to the Government
hospital for treatment and is still continously taking treatment. Therefore,
claiming compensation at the hands of the insurer, the claim petition was filed
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by the claimant.
3. Before the Tribunal, the claimant examined himself as P.W.1 and
marked viz., Ex.P.1 to Ex.P.8. No witnesses were examined nor any documents
were marked on the side of the respondents and the Court Document Ex.C.1
has been marked by the Tribunal. After considering all the oral and
documentary evidence, the Tribunal had awarded the compensation amount of
Rs.6,04,336/- and fastened the liability on the Appellant-Insurance Company
and the 2nd Respondent/Owner of the car. Aggrieved by the said award dated
14.03.2019, the Appellant-Insurance Company has filed the present appeal
questioning the liability as well as the quantum of compensation fixed by the
Tribunal.
4. Learned counsel appearing for the Appellant/Insurance Company
submitted that the accident had occured on the left side of the car and
therefore, it clearly reveals that the claimant had tried to overtake the vehicle on
the left hand side which is against the traffic rules and the necessary and thus it
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is evident that it is only the claimant who had driven the vehicle in a rash and
negligent manner. Further, the same has also been reflected in the FIR and
therefore fastening of liability and negligence on the driver of the car is wholly
erroneous and hence the order of the Tribunal requires interference. It is the
further submission of the learned counsel appearing for the appellant that when
the doctor had assessed 45% of functional disability, the adoption of multiplier
method while granting compensation under the head disability is wholly
erroneous. Accordingly, the impugned award of the Tribunal requires
interference.
5. Though notice was served on the 2nd Respondent and his name printed
in the causelist, none appeared on behalf of the 2nd Respondent. Considering
the pendency of the Appeal which is of the year 2019, this Court is inclined to
dispose of the same based on the materials available on record.
6. This Court heard the learned counsel appearing for the Appellant-
Insurance Company and perused the materials available on record.
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7. The factum of the accident is not disputed by the parties. Therefore,
this Court is not entering into the said aspect. It is case of the claimant that
when he tried to overtake the vehicle on the left side, the vehicle suddenly
turned on the left side due to which the claimant was thrown out of the vehicle
and he sustained injuries. According to the Motor Vehicle Rules and the traffic
that has to be followed, overtaking on the left hand side is prohibited, however,
mere prohibition does not absolve the driver of the car from not giving signal
before turning. In the case on hand, there is no material either in the FIR or
through any independent evidence that the driver of the car had given proper
signal before turning left though the claimant had tried to overtake on the left
which is not proper. Equally the act of the driver of the vehicle in not signaling
his left hand turn is not proper however, by properly appreciating the above,
the Tribunal has rightly fixed 75% of the negligence on the part of the driver of
the 2nd respondent's vehicle and 25% on the claimant. Therefore, the said
finding does not require any interference as it is just and reasonable.
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8. Insofar as the fixation of disability is concerned, the Tribunal based
on the Ex.P-2, the disability certificate and also based on the Ex.C1, has fixed
the disability at 40%. However, the appellant has not placed any material
contra to the above to prove that the claimant has not suffered particular
percentage of disability, the procedure adopted by the Tribunal for fixing the
disability based on the said fixation cannot be said to erroneous. The Tribunal
has awarded compensation under the head disability by adopting multiplier
method in view of the fact that disability had been assessed at 40% which is a
permanent disability and hence the adoption of multiplier method is proper.
Therefore, the compensation awarded under the head disability does not
require any interference. Insofar as the compensation awarded under other
heads, this Court finds it to be just and reasonable as the same has been fixed
based on the oral and documentary evidence. Such being the case, the
compensation being just and reasonable does not require any interference.
9. Accordingly, the Appeal is dismissed and the impugned award in
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M.C.O.P.No.94 of 2019 stands confirmed. There shall be no order as to costs
in the present appeal. Consequently, the connected Miscellaneous Petition
stands closed.
22.11.2023
Index : Yes / No
Speaking Order / Non-speaking order
Neutral Citation Case : Yes / No
NHS
To
1.The Motor Accident Claims Tribunal Cum
Additional District and Sessions Judge,
Krishnagiri.
2.The Section Officer,
V.R. Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
M.DHANDAPANI, J
NHS
22.11.2023
https://www.mhc.tn.gov.in/judis
