Madras High Court
The Manager vs S.P.M.Moscollin Basu on 14 August, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
CMA(MD).No.655 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 18.07.2024
PRONOUNCED ON : 14 .08.2024
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.655 of 2018
and CMP(MD).Nos.7620 of 2018 and 7119 of 2024
The Manager
ICICI Lombard General Insurance Company Ltd.,
Loyala Technical Institute Building
1st Floor, 7AA Road
Gnanaolivupuram
Madurai 607 802 .....Appellant/2nd Respondent
Vs.
1.S.P.M.Moscollin Basu
2.S.Mariappan
3.State Express Transport Corporation (SETC)
The Managing Director
Thiruvalluvan House
Pallavan Salai
Chennai – 02 ...2nd & 3rd Respondents/ 1st & 3rd Respondents
( Memo dated 15.03.2024 is recorded to the effect that 2nd
respondent given, as he was set exparte before the Tribunal
vide Court order dated 15.03.2024)
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988, to set aside the judgment and decree dated 23.08.2017 in
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1/11
CMA(MD).No.655 of 2018
MCOP.No.8 of 2016 on the file of the Special District Judge (MACT) Court,
Trichy and allow the above civil miscellaneous appeal.
For Appellant : Mr.V.Muthukamatchi
For R1 : Mr.T.Selvan
for M/s.K.Nirmalarani
For R2 : Given up
For R3 : Mr.P.Prabhakaran
JUDGMENT
The instant appeal has been filed by the insurance company
challenging the award passed in MCOP.No.8 of 2016 on the file of the Motor
Accident Claims Tribunal/ Special District Judge, Tiruchirappalli District
challenging the liability and quantum.
2.According to the injured claimant, while he was travelling in the
transport corporation bus belonging to the third respondent from Chennai to
Madurai, a tipper lorry owned by the first respondent and insured with the
second respondent was proceeding ahead of the bus. The driver of the tipper
lorry was driving the said lorry by reducing the speed without any proper
warning. Therefore, when the said lorry suddenly reduced the speed without
any warning signal, the bus has dashed against the rear side of the lorry. Due
to the said accident, the petitioner and his wife got entangled between their
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seat and the seat located in front of them. In the said accident, three
passengers had passed away and 15 passengers including the petitioner and
his wife were injured.
3.The petitioner and his wife was originally admitted to Government
Medical College Hospital, Trichy and thereafter, they were admitted to a
private hospital at Puthur, Trichy. The petitioner has taken treatment from
22.04.2013 to 07.05.2013. A surgery was performed on 23.04.2013 to correct
the fracture in the left femur shaft bone of the petitioner and a metal plate was
fixed in the shaft bone. The petitioner was discharged only on 07.05.2013. He
had further contended that he was 42 years old and he was working in a New
Delhi based Women's Inner-wear Company as sales manager and he was
drawing a salary of Rs.20,000/- per month. Apart from the salary, he was
receiving the actual travel expenses and other food bills. The petitioner used
to cover distributors who were located in and around Madurai to achieve the
sales target.
4.In view of the accident, the petitioner had lost his job and he could
not get any placement in a similar company. The petitioner is not able to
move out of the house, he finds it difficult to travel in the bus and he could
not drive the two wheeler. The petitioner had claimed compensation of a sum
of Rs.30,00,000/-.
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5.The first and third respondents have remained exparte and the insurer
of the tipper lorry had filed a counter contending that the accident has taken
place only due to the negligence on the part of the driver of the corporation
bus who had dashed on the rear side of the tipper lorry. At the instance of the
transport corporation officials, F.I.R has been registered as against the driver
of the lorry. The insurance company had further questioned the disability of
the claim petitioner and the quantum of compensation as prayed for by the
claim petitioner.
6.The Tribunal after considering the oral and documentary evidence of
PW1 and Exhibits P1-F.I.R, had arrived at a finding that the accident has
taken place only due to the rash and negligent driving on the part of the first
respondent's vehicle namely the tipper lorry. The Tribunal had rejected
Exhibit P6- appointment letter of the claim petitioner and has proceeded to
fix the notional income of the claim petitioner at Rs.10,000/- per month.
Relying upon Exhibit P5, case summary, the Doctor's evidence as PW2 and
the disability certificate which is marked as Exhibit P12, fixed the permanent
disability at 37%.
7.The Tribunal considering the nature of work of the claim petitioner
had proceeded to adopt multiplier method. Relying upon the evidence of
physiotherapist who was examined as PW4, the Tribunal has awarded a sum
of Rs.49,750/- towards physiotherapist charges. Relying upon Exhibit P9, the
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Tribunal has awarded Rs.24,000/- towards house-maid expenses. The
Tribunal has awarded Rs.5000/- towards transport expenses, Rs.10,000/-
towards pain and suffering, Rs.60,000/- towards loss of income during the
treatment period, Rs.1,09,494/- towards medical treatment and another sum
of Rs.5000/- towards extra nourishment and Rs.3000/- towards attender
charges. The Tribunal has rejected the request of awarding future prospects
on the ground that the claimant has not established the same. Based upon the
above said findings, the Tribunal has awarded a sum of Rs.8,87,844/- along
with 7.5% interest. Challenging the said award, the present appeal has been
filed by the insurance company of the tipper lorry.
8.The learned counsel appearing for the appellant/insurance company
had contended that the Tribunal had erroneously fixed the notional income of
Rs.10,000/- per month without properly appreciating the facts and
circumstances of the case. When the knee movement of the claim petitioner is
restricted to just 20%, the Tribunal was not right in fixing the physical
disability at 37%. He had further contended that when the claim petitioner
has not established his functional disability, the Tribunal was not right in
adopting the multiplier method. He had further stated that the contributory
negligence ought to have been fixed upon the driver of the transport
corporation bus which had dashed against the rear side of the tipper lorry.
When the bus has not maintained a reasonable distance from the tipper lorry
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which was going ahead, certainly the contributory negligence ought to have
fixed upon the driver of the transport corporation bus.
9.Per contra, the learned counsel appearing for the first
respondent/claimant had contended that the appellant/insurance company has
not chosen to examine the driver of a tipper lorry so as to establish the
contributory negligence on the part of the driver of the corporation bus. The
Tribunal after considering the oral and documentary evidence, has rightly
arrived at a finding that the accident has taken place only due to the rash and
negligent driving on the part of the driver of the tipper lorry.
10.The learned counsel for the first respondent/claimant had further
contended that the claimant had filed CMP(MD).No.7119 of 2024 under
Order 41 Rule 27 of C.P.C to receive the bank pass book and termination
letter as additional evidence to show that the petitioner had lost his job due to
the disability sustained by him in the accident and therefore, the Tribunal
ought to have awarded more amount towards compensation.
11.For the said additional evidence application, a counter has been
filed by the insurance company contending that the present document has
been created after filing of the appeal and therefore, the same is not
admissible. The insurance company had further contended that no proper
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reason has been assigned by the claimant for not producing the termination
letter and the bank accounts before the Tribunal.
12.The learned counsel for the claimant had further contended that the
Tribunal had rightly applied multiplier method, in view of functional
disability sustained by the claimant and therefore, the same may not be
disturbed. He had further stated that the notional income and the award
amount under the other heads are on the lesser side and therefore, the
quantum of compensation awarded by the Tribunal may not be modified or
reduced. Hence, he prayed for dismissing the appeal.
13.I have considered the submissions made on either side and perused
the material records.
14.The primary contention of the learned counsel for the appellant/
insurance company is that when the bus belonging to the transport
corporation had dashed against the rear side of the tipper lorry, contributory
negligence ought to have been fixed upon the driver of the bus. A perusal of
the award indicates that though such a plea has been raised by the insurance
company, they have not chosen to examine the driver of the tipper lorry. Nor
they have filed any other document like motor vehicle inspector's report to
establish the nature of damage to both the vehicles. In such circumstances,
this Court cannot be found fault with. The Tribunal after relying upon the oral
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evidence of PW1 and Exhibit P1- F.I.R, had rightly fixed the negligence on
the part of the driver of the tipper lorry.
15.The claimant had filed Exhibit P6 which is an appointment letter
issued to him as Area Sales Manager indicating the date of appointment as
21st November 2012 with monthly salary of Rs.20,000/-. The petitioner had
relied upon the said document and deposed in his chief examination. During
the cross examination, the claimant has admitted the said appointment order
was issued to him only for the training period of 6 months and he had not
filed any other document to establish that his services were made permanent
and he was receiving a salary of Rs.20,000/- at the time of accident.
16.The claimant had further admitted that he has not filed any
document to establish the fact that he was forced to resign the job due to the
disability sustained in the accident. By way of additional evidence before this
Court, the termination letter and bank pass book have been filed. The
termination letter is dated 11.05.2013 which is one month after the accident.
The said document has not been signed by any one of the officials of the
employer company. No reasons have been assigned by the claimant for not
filing this document before the Tribunal, when the claim petition was filed in
the year 2014. Therefore, this Court is not inclined to accept the said
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additional evidence which was filed to prove that the claimant had lost his
employment due to the disability sustained by him in the accident.
17.The claimant had filed a bank pass book. The entries in the bank
pass book is for the period between January 2013 and December 2020.
( Saving Bank Account in Indian Bank, Oomachikulam Branch, Madurai for
the period from 01.01.2013 to till date). The appointment order under Exhibit
P6 reveals that he had joined service on 21st November 2012. However, the
claimant has not chosen to file the statement from November 2012 till the
date of January 2013 to establish that he was receiving a salary of Rs.20,000/-
per month. When absolutely there is no proof with regard to the receipt of
Rs.20,000/- as salary per month (except Exhibit P6 which relates to a training
period of 6 months), this Court does not find any reason to interfere in the
order of the Tribunal which had fixed the notional monthly income at
Rs.10,000/- per month. Therefore, CMP(MD).No.7119 of 2024 stands
rejected.
18. As per Exhibit P12, the knee movement has been restricted to 20
degree and there is a fracture in the upper femur. This would certainly affect
the movement of the claim petitioner and therefore, the Tribunal was right in
adopting the multiplier method.
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19.In view of the above said deliberations, there are no merits in the
appeal and this Civil Miscellaneous Appeal stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
14.08.2024
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
mas
To
1. The Special District Judge (MACT),
Trichy
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgement made in
and CMP(MD).Nos.7620 of 2018 and 7119 of 2024
14.08.2024
https://www.mhc.tn.gov.in/judis
