Madras High Court

Shanmugavel vs Correspondent on 28 November, 2023

                                                                                    C.M.A. No. 2606 of 2021


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 28.11.2023

                                                            CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                   C.M.A. No. 2606 of 2021

                     Shanmugavel                                      ... Appellant / Petitioner
                                                                Vs.
                     1.           Correspondent,
                                  RGR Matric school, NH-7
                                  Namakkal Main road,
                                  Pudhuchadram,
                                  Namakkal Dt. 637018.

                     2.           M/s. United India Insurance
                                    Company Limited,
                                  No.2, Puvaneshwari complex,
                                  Dr. Sangaran road,
                                  Namakkal Dt.       637001.          ... Respondents / Respondents


                                  Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and decree dated 09.03.2020
                     passed in M.C.O.P. No.207 of 2018 on the file of the Principal Subordinate
                     Judge, Motor Accident Claims Tribunal, Namakkal.


                                  For Appellant    :       Mr. C. Thangaraju
                                  For R1           :       No Appearance
                                  For R2           :       Mr. C. Paranthaman


                     1/11
https://www.mhc.tn.gov.in/judis
                                                                                     C.M.A. No. 2606 of 2021


                                                          JUDGMENT

This Civil Miscellaneous appeal has been filed by the claimant

challenging the Judgment passed in M.C.O.P. No.207 of 2018, dated

09.03.2020 on the file of the Principal Subordinate Judge, Motor Accident

Claims Tribunal, Namakkal, wherein the Tribunal has held that the claimant

herein has contributed to the accident to the extent of 50%.

2. For the sake of convenience, the parties are referred herein

according to their litigative status and rank before the Tribunal.

3. The case of the claimant is that on 25.11.2016 at about 5:15PM,

he was riding a two wheeler bearing Registration No.TN-28-J-6480 from

Puthansanthai - Senthamangalam road, while he reached near Pottanam

cross road, a private school bus bearing Registration No.TN-47-Q-6805,

came behind the claimant in a rash and negligent manner, hit on the two

wheeler of the claimant, which resulted in causing grievous injuries to the

claimant. A criminal case was also registered against the owner of the bus in

Cr.No.415/2016 u/s.279 and 337 of I.P.C. on the file of Senthamangalam

Police Station. Due to the injuries sustained, the claimant has come forward

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with a claim petition seeking compensation for a sum of Rs.15,00,000/-.

4. The first respondent, who is the owner of the bus bearing

Registration No.TN-47-Q-6805 has not contested the claim and remained

ex-parte. The second respondent - insurance company has filed a counter

and disputed the manner in which the accident has taken place and also

contended that the accident was taken place due to the negligence of the

claimant, who came in the middle of the road without observing the bus.

The claimant was not having a valid driving licence and was not wearing

helmet at the time of occurrence. The insurance company also relied on the

Motor Vehicles Inspection report to support their case and also contended

that the compensation claimed under various heads is on the higher side,

hence prays to dismiss the claim petition.

5. Before the Tribunal, on the side of the claimant, P.W.1 and

P.W.2 were examined and Exs.P.1 to P.14 were marked. On the side of the

respondent, no witnesses were examined and Ex.R.1 - M.V.I. Report was

marked.

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6. Based on the evidence placed on record, the Tribunal has held

that the claimant has also contributed to the negligence of 50%. The

Tribunal has quantified and granted compensation for a sum of Rs.48,839/-

along with interest @ 7.5% per annum from the date of filing of this petition

till the date of realization.

7. Aggrieved over the liability fixed against the claimant and

quantum of compensation awarded by the Tribunal, the claimant has

approached this Court seeking modification of award.

8. The learned counsel appearing for the claimant has submitted

that Tribunal has not properly appreciated the evidence placed on record,

wrongly fixed contributory negligence of 50% on the part of the claimant

and without giving any reason, reduced the disability sustained by the

claimant as 10%, whereas P.W.2, the doctor, who issued disability certificate

- Ex.P.14 has assessed the disability of the claimant as 20%. The Tribunal

has also not considered the nature of injuries sustained and compensation

awarded under various heads is on the lower side, hence prays to enhance

the same.

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9. Per contra, the learned counsel appearing for the respondent -

insurance company has submitted that the Tribunal based on the evidence

placed on record has rightly fixed contributory negligence of 50% on the

part of the claimant and also awarded a just compensation, hence prays to

confirm the same.

10. Heard submissions made on both sides and perused the

materials placed on record:

11. In this case, the Tribunal has held that the claimant has also

contributed to the negligence to the extent of 50% based on the oral evidence

of P.W.1 and after appreciating the Motor Vehicle Inspection Report, which

is marked as Ex.R.1. The case of the claimant is that the two wheeler was

hit by the bus on the backside but the case of the respondent is that the

claimant has suddenly entered middle of the road and hit on the bus and also

disputed the case of the claimant that the bus has not hit the two wheeler on

the backside. The award shows that, Tribunal has critically analysed the

evidence of P.W.1 and held that, the contention of the respondent is more

probable in view of the damages noted in the Motor Vehicles Inspection

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Report of two wheeler and categorically held that claimant evidence shows

that he has contributed to the accident. On perusal of the same, this Court

also finds that the two wheeler has sustained damages only on its front side

and no damages were noted on the back side of the two wheeler. Even

though, it is disputed by the claimant that his two wheeler hit the bus by

entering into road, damages showed that the contention of the respondent is

probable than the evidence of P.W.1. However it hold that, claimant has

contributed to the accident to the extent of 50%. This Court finds no

infirmity regarding the finding of the Tribunal with respect to contributory

negligence of 50% fixed on the part of the claimant and confirms the same.

12. The other contention raised by the learned counsel appearing

for the claimant is with respect to the disability of 10% fixed by the

Tribunal. On perusal of the evidence placed on record, more particularly the

wound certificate issued by the Sri Nithi Hospital, which was marked as

Ex.P.3 and the discharge summary, which is marked as Ex.P.6, shows that

the claimant has sustained 5 injuries and out of which two are grievous in

nature, i.e., fracture on left chest rib and on the right leg and by the disability

certificate issued by the P.W.2, the doctor who assessed the disability of the

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claimant as 20% permanent disability. On perusal of the award of the

Tribunal, it is noted that the Tribunal has agreed with the percentage of

disability assessed by the P.W.2, but while calculating the compensation, it

has recorded as 10% disability and there is no reason given by the Tribunal

for changing the percentage of disability in its award. Hence, this Court of

the view that the disability assessed by the P.W.2, doctor is proper and that

there may be clerical error on the part of the Tribunal while fixing the

disability. This Court is inclined to modify the percentage of disability of

10% fixed by the Tribunal to 20% as per the disability certificate issued by

the P.W.2, doctor.

13. The Tribunal in its award under the head disability, adopted

percentage method and awarded Rs.3,000/- per percentage of disability but

in M. Chinnathambi vs. S. Deepa and another reported in [CDJ 2020

MHC 1013; 2020 (1) TNMAC 617], has awarded Rs.5,000/- per percentage

of disability for the accident cases taken place from the year 2016 onwards,

hence, considering the date of accident, this Court is inclined to modify the

same by adopting Rs.5,000/- per percentage of disability and award

compensation for a sum of Rs.1,00,000/- (Rs.5,000/- x 20% disability).

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14. The Tribunal awarded Rs.10,000/- under the head pain and

suffering, this Court is of the view that the same is on the lower side. Hence,

the compensation under the head pain and suffering is modified to

Rs.25,000/-. Whereas the other heads are concerned, the Tribunal has

granted a just compensation and the same are hereby confirmed.

15. Accordingly, the award passed by the Tribunal under various

heads are hereby modified as follows:

                         S.                Description          Amount      Amount       Award
                         No                                    awarded by awarded by confirmed or
                                                                Tribunal   this Court enhanced or
                                                                  (Rs)        (Rs)      reduced
                        1.        Loss of earning during the      22,500/-    22,500/-    Confirmed
                                  treatment period
                        2.        Pain and Suffering              10,000/-    25,000/-     Enhanced
                        3.        Disability                      30,000/-   1,00,000/-    Enhanced
                        4.        Medical expenses                32,178/-    32,178/-    Confirmed
                        5.        Extra Nourishment                3,000/-      3,000/-   Confirmed
                                  Total                           97,678/-   1,82,678/-    Enhanced
                                  Total Compensation after
                                  Deduction towards 50%           48,839/-    91,339/-    Enhanced
                                  Contributory negligence





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16. In the result, this Civil Miscellaneous Appeal is partly allowed

and the compensation awarded by the Tribunal at Rs.48,839/- is hereby

enhanced to Rs.91,339/- [Rupees Ninety One Thousand Three Hundred

and Thirty Nine only] together along with interest at the rate of 7.5% per

annum from the date of filing of Claim Petition till the date of deposit,

excluding the default period, if any. The second respondent - Insurance

Company is directed to deposit the amount awarded by this Court along with

interest and costs, less the amount already deposited, if any, within a period

of six weeks from the date of receipt of a copy of this judgment to the credit

of M.C.O.P.No.207 of 2018 on the file of the Princial Subordinate Judge,

Motor Accidents Claims Tribunal, Namakkal. On such deposit, the

appellant is permitted to withdraw the award amount now determined by this