Madras High Court
Oriental Insurance Company Ltd vs Anthuvan Lourthuraj ... 1St on 3 January, 2024
C.M.A.(MD)No.832 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 03.01.2024
CORAM:
THE HON'BLE MR.JUSTICE P. DHANABAL
C.M.A.(MD)No.832 of 2012
and
C.M.P(MD) No.2 of 2012
Oriental Insurance Company Ltd.,
City Branch Office- II,
5th Floor Lakshmi Complex,
73B/1, Salai Road,
Thillai Nagar, Trichy- 18 ... Appellant/
2nd Respondent
Vs.
1. Anthuvan Lourthuraj ... 1st Respondent/
Petitioner
2.Jeyatharan ... 2nd Respondent/
1st Respondent
Prayer : This Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the award made in M.C.O.P.No. 171 of 2009 dated
28.02.2011 on the file of the Motor Accident Claims Tribunal, Sub Court,
Kulithalai.
For Appellant : Mr.C.Jawahar Ravindran
For R1 : Mr.S.Sarvagan Prabhu
for Mr.T.Senthil Kumar
For R2 :Exparte
1/9
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C.M.A.(MD)No.832 of 2012
JUDGMENT
This Civil Miscellaneous Appeal has been filed as against the order
passed in M.C.O.P.No. 171 of 2009 dated 28.02.2011 on the file of the Motor
Accident Claims Tribunal, Sub Court, Kulithalai, wherein, the first respondent
herein filed a petition for granting compensation as against the second
respondent and the petitioner herein.
2. The Tribunal has awarded a sum of Rs.5,65,000/- towards
compensation with @7.5% interest . As against the award passed by the
Tribunal, the present appeal has been preferred by the second
respondent/Insurance company.
3. For the sake of convenience and brevity, the parties herein after will
be referred to as per their status/ranking in the Tribunal.
4. The brief facts of the petition averments are:
The petitioner was aged about 31 years at the time of accident. On
17.01.2009 at about 6.00 pm., when the petitioner was riding two wheeler
bearing Reg.No. TN 59 Y 1166 along with his aunt as pillion rider in Trichy to
Pudukottai main road near S.P. Office Subramaniyapuram, Trichy at that time a
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vehicle bearing Reg. No. T N 47 1556 belongs to the first respondent came in a
rash and negligent manner and dashed against the two wheeler of the
petitioner and due to the accident the petitioner sustained multiple injuries all
over the body. Immediately, he was taken to Kavery Medical Centre, Trichy and
incurred a sum of Rs.3,00,000/- towards medical expenses. The accident
occurred only due to the rash and negligent driving of the car driver. The
petitioner also lost his eye sight and also sustained injuries on his lower jaw
and he could not chew the food and his face was disfigured. Hence the present
application has been filed seeking compensation of Rs.10,00,000/-.
5. The brief facts and counter filed by the second
respondent:
The respondents denied the averments made in the petition. The
first respondent is the owner of the vehicle and the same was insured with the
second respondent. He also denied the rash and negligent driving on the part
of the driver of the first respondent. The age, income, manner of accident,
injuries sustained by the petitioner are all denied by the second respondent.
Claiming compensation of Rs.10,00,000/- is too high and hence the petition is
liable to be dismissed.
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6. In order to prove the case of the petitioner , the petitioner has
examined P.W.1 to P.W.4 and marked exhibits Exs.P.1 to Ex.P.15 and on the
side of the respondent none was examined and no documents were marked.
7. After evaluating the oral and documentary evidence adduced on
either side, the Tribunal has awarded a sum of Rs.5,65,000/- towards
compensation with interest of 7.5 % per annum .
8. As against the award passed by the Tribunal the second
respondent/Insurance company has preferred this present appeal on various
grounds.
9. The learned counsel appearing for appellant/second respondent
would contend that the Tribunal has failed to appreciate the evidence of the
petitioner and wrongly adopted multiplier method. There is no functional
disability and the petitioner has not proved the same in accordance with law.
Further the petitioner himself has admitted in the petition that he dashed
behind the first respondent vehicle. It shows the negligence on the part of the
petitioner and thereby the petitioner has also contributed the negligence. The
Tribunal taken disability as 50 %without applying formula, hence the order
passed by the Tribunal are liable to be set aside by allowing this appeal.
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10. The learned counsel appearing for the first respondent/petitioner
would contend that due to the rash and negligence on the part of the first
respondent vehicle the petitioner sustained injuries all over the body and lost
his eye sight and he sustained injuries on his face and it was disfigured. The
doctor who treated the victim have deposed about the disability and injuries
sustained by him. Thereby the petitioner has proved the disability through
sufficient medical evidence. The Tribunal also after taking into consideration all
these aspects, fairly adopted multiplier method and awarded the fair
compensation. Therefore, the appeal is liable to be dismissed.
11. This Court after hearing both sides and upon perusing the
documents including the order of the Tribunal, the point for determination in
this appeal is:
i)whether the appeal is liable to be allowed or not?
12. In this case there is no contravention with regard to the
accident. The accident is admitted by both the parties. The appellant/second
respondent denied the negligence on the part of the driver of the first
respondent and the contention of the appellant is that even as per the petition
the petitioner dashed behind the first respondent vehicle thereby it shows the
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negligence on the part of the petitioner. Therefore the petitioner has also
contributed the negligence. Inorder to prove the negligence on the part of the
petitioner, there is no sufficient evidence adduced by the second respondent .
Per contra on the side of the petitioner they examined P.W.1 and also
examined eye witnesses to the occurrence and they categorically deposed
about the negligence on the part of the driver of the first respondent. In the
absence of contra evidence on the side of the second respondent it is not
proper to hold that the petitioner also has contributed the negligence.
13.With regard to the quantum, according to the appellant/second
respondent the doctor who treated the victim was not examined properly. In
order to prove the disability the petitioner has examined P.W.2 to P.W.4 and
they have categorically deposed the injuries sustained by the petitioner and
also the disability and he gave disability certificate for the bone fracture. As per
the neurology doctor the disability is 35 % . As per the Ophthalmologist 30%
disability for loss of eye sight. Inorder to rebut the above said evidence there
is no rebuttal evidence adduced by the appellant/second respondent. However
the Presiding Officer of the Tribunal has taken 50% of the disability of the
whole body based on the certificate give by the P.W.2 to P.W.4. Though there is
no reference about as to how the Tribunal has taken disability as 50%, taking
into consideration of the injuries sustained by the petitioner the Tribunal has
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taken 50% disability. Further apart from this, the Tribunal has taken a sum of
Rs.3000/- as notional income of the petitioner and also adopted multiplier
method since the petitioner has lost his eye sight and also his face was
disfigured. After adopting the multiplier method the Tribunal awarded a sum of
Rs.2,88,000/- towards loss of income and the same is reasonable. The Tribunal
has awarded the compensation as follows:
1. Loss of consortium and Income Rs.2,88,000/-
2. Transport Expenses and Rs.35,000/-
Nourishment
3. Actual loss of income Rs.12,000/-
4. Future Medical Expenses Rs.25,000/-
5. Pain and sufferings Rs.50,000/-
6. Medical Expenses Rs.1,55,000/-
Total Rs.5,65,000/-
14. Considering the nature of injuries sustained by the petitioner
and also considering the disability the award passed by the Tribunal is a
reasonable one. The Tribunal failed to award consortium separately and
included in the loss of income. However the claimant has not filed any appeal
of cross objection. Therefore there is no infirmity or perverse in the order
passed by the Tribunal. Therefore this Court find no warrant to interfere with
the order passed by the Tribunal
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15. In view of the above discussions this Court finds no merits in the
appeal and it deserves to be dismissed. Accordingly this Civil Miscellaneous
Appeal is dismissed and the impugned award dated 28.02.2011 passed in
M.C.O.P.No. 171 of 2009 dated 28.02.2011 on the file of the Motor Accident
Claims Tribunal, Sub Court, Kulithalai, is confirmed. As per the order of this
Court the Insurance Company has deposited the entire award amount and the
petitioner was also permitted to withdraw Rs.2,00,000/- Now the petitioner is
permitted to withdraw the remaining amount together with interest and costs
by filing application before the Tribunal. Consequently connected
miscellaneous petition is closed.
03.01.2024
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
aav
To:
1. The Motor Accident Claims Tribunal, Sub Court, Kulithalai .
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
P. DHANABAL,J.
aav
03.01.2024
https://www.mhc.tn.gov.in/judis
