Madras High Court

The Divisional Manager vs Premkumar on 13 September, 2023

                                                                                 C.M.A.No.2140 of 2023
                                                                            and C.M.P.No.20700 of 2023

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 13.09.2023

                                                          CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                                    C.M.A.No.2140 of 2023
                                                  and C.M.P.No.20700 of 2023

                     The Divisional Manager
                     National Insurance Company Ltd.,
                     Pondicherry-1                                                   ... Appellant

                                                           Versus
                     1.Premkumar
                     2.Vijayalakshmi                                               ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, against the judgment and decree dated 16.08.2022
                     made in M.C.O.P.No.279 of 2019, on the file of the Motor Accident
                     Claims Tribunal, Principal Sub-court, Cuddalore.
                                  For Appellant           : Mr.C.Paranthaman
                                  For R1                  : Mr.A.G.F.Terry Chella Raja
                                                           for Ms.M.Malar
                                                          JUDGMENT

This appeal has been filed by the Insurance Company, challenging

the finding with regard to negligence as well as the quantum of

compensation awarded by the Tribunal in M.C.O.P.No.279 of 2019,

dated 16.08.2022.

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

C.M.A.No.2140 of 2023 and C.M.P.No.20700 of 2023

2.The 1st respondent herein filed a claim petition, stating that on

06.11.2018, at about 17.00 hours, when he was riding his motorcycle

(Scooty Pep), a vehicle belonging to the 2nd respondent herein, came in

the opposite direction in a rash and negligent manner and dashed against

the motorcycle belonging to the 1st respondent; that as a result of which,

1st respondent sustained grievous injuries and multiple fractures all over

his body including comminuted fracture on his left leg; and thereby, the

appellant/Insurance Company is liable to pay compensation.

3.The 2nd respondent herein remained ex-parte before the Tribunal.

4.The appellant/Insurance Company filed a counter stating that the

accident did not take place due to the negligence of the rider of the

offending vehicle; that the 1st respondent had violated the traffic

regulations; and that in any case, the compensation claimed was

excessive and prayed for dismissal of the claim petition.

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C.M.A.No.2140 of 2023 and C.M.P.No.20700 of 2023

5.Before the Tribunal, the 1st respondent examined himself as

P.W.1 and marked Exs.P1 to Ex.P8. The appellant had not examined any

witness or marked any document. The disability certificate issued by the

Medical board is marked as Ex.C1.

6.The Tribunal, after considering the oral and documentary

evidence, held that the accident took place only due to the rash and

negligent riding by the rider of the motorcycle insured with the appellant

and directed the appellant to pay a sum of Rs.7,50,641/- as compensation

to the 1st respondent.

7.Aggrieved over the award passed by the Tribunal, the appellant-

Insurance Company filed the present appeal challenging the findings of

the Tribunal with respect to the negligence as well as quantum of

compensation.

8.The learned counsel for the appellant submitted that the accident

took place only due to negligence on the part of the 1st respondent and

the Tribunal had erroneously fixed the negligence on the rider of the

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C.M.A.No.2140 of 2023 and C.M.P.No.20700 of 2023

motorcycle insured with the appellant. He further submitted that the

Tribunal had erroneously adopted multiplier method though, the 1st

respondent had not established that he had suffered any functional

disability and loss of income. Therefore, he prayed for allowing of the

appeal.

9.The learned counsel for the appellant submitted that the 2nd

respondent remained ex-parte before the Tribunal and therefore, he

requested this Court to dispense with notice to the 2nd respondent and he

had also made an endorsement to that effect. Hence, notice to the 2 nd

respondent is dispensed with.

10.The learned counsel for the 1st respondent per contra submitted

that the Tribunal rightly found that the accident took place due to the

negligence of the rider of the offending vehicle based on Ex.P1- First

Information Report, Ex.P2- copy of Accident Report and Ex.P7- copy of

MVI Report besides the deposition of PW1; and that therefore, there is

no infirmity in the finding of the Tribunal fixing the negligence on the

part of the rider of the offending vehicle.

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C.M.A.No.2140 of 2023 and C.M.P.No.20700 of 2023

11.As regards compensation, the learned counsel submitted that

even assuming that the functional disability is reduced, the notional

income taken by the Tribunal was very meagre. Taking into

consideration the said fact, the compensation awarded by the Tribunal is

just and reasonable and no interference is called for.

12.The questions involved in the instant appeal are as follows:

1.Whether the Tribunal was right in fixing the negligence on the

rider of the motorcycle insured with the appellant?

2.Whether the award of compensation is just and reasonable?

13.On perusal of the records, it is seen that the 1st respondent had

examined himself as P.W.1 to prove the manner of the accident. The

appellant had not let in any rebuttal evidence. The Tribunal had also

taken into consideration Ex.P1, FIR, Ex.P4-Motor Vehicle Inspector's

report of the offending vehicle, Ex.P7-Motor Vehicle Inspector's report

for the claimant's vehicle to hold that the accident took place due to the

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C.M.A.No.2140 of 2023 and C.M.P.No.20700 of 2023

negligence of the rider of the offending vehicle. There is no infirmity in

the finding of the Tribunal and hence the same is confirmed.

14.As regards the quantum, it is the main contention of the

appellant that the 1st respondent had not suffered any functional

disability. It is seen from Exs.P2 and Ex.P3, that the 1st respondent

suffered Grade II compound comminuted fracture in tibia 1/3 left and a

surgery was done on 07.11.2018. The Medical Board assessed the

disability as 27% on whole body. The 1st respondent had also deposed

before the Tribunal that he was working as a Fisherman. In the light of

the injuries suffered by the 1st respondent and the avocation, this Court is

of the view that the Tribunal was right in holding that the appellant had

suffered functional disability to the extent of 27%. Hence, there is no

infirmity and no interference is called for in the said finding. However,

since the Tribunal had adopted multiplier method to award just

compensation, the compensation awarded under the head temporary loss

of Income at Rs.27,000/- is liable to be set aside. This Court is of the

view that compensation of Rs.30,000/- under Pain and sufferings and

mental agony, can be reduced to Rs.10,000/-. The award under the other

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C.M.A.No.2140 of 2023 and C.M.P.No.20700 of 2023

heads is just and reasonable and the same are confirmed. Thus, the

compensation awarded by the Tribunal is modified as follows:

S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Partial permanent 5,24,880 5,24,880 Confirmed
disability
2. Transport to 20,000 20,000 Confirmed
Hospital
3. Extra 10,000 10,000 Confirmed
Nourishment
4. Attender's Charge 5,000 5,000 Confirmed
5. Pain and 30,000 10,000 Reduced
sufferings, mental
agony
6. Loss of amenities 20,000 20,000 Confirmed
7. Medical Expenses 1,13,761 1,13,761 Confirmed
7. Temporary loss of 27,000 - Set aside
Income
Total 7,50,641 7,03,641 Reduced by
Rs.47,000/-

15.With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.7,50,641/- is hereby reduced to Rs.7,03,641/- together with interest at

7.5% per annum from the date of petition till the date of deposit. The

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C.M.A.No.2140 of 2023 and C.M.P.No.20700 of 2023

appellant/Insurance Company is directed to deposit the modified award

amount now determined by this Court along with interest and costs, less

the amount already deposited, if any, within a period of six (6) weeks

from the date of a receipt of copy of this Judgment. On such deposit the

1st respondent/claimant is permitted to withdraw the entire award amount

now determined by this Court, along with interest and cost, less amount