Madras High Court
United India Insurance Company Limited vs Mani on 5 January, 2024
C.M.A.(MD).No.885 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 13.12.2023
PRONOUNCED ON : 05.01.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.885 of 2012
and
M.P.(MD)No.2 of 2012
United India Insurance Company Limited,
Through its Branch Manager,
Mattappa Street, Tenkasi. ... Appellant
Vs.
1.Mani
2.A.Raju
3.Royal Sundaram Alliance Insurance Company Ltd.,
46, Whites Road, Chennai – 14.
4.S.Sudalaimuthu ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to set aside the order and decree dated 12.04.2011
passed in M.A.C.O.P.No.145 of 2009 on the file of the Motor Accident
Claims Tribunal, Additional Sub Court, Tenkasi.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.885 of 2012
For Appellant : Mr.I.Suthakaran
For 3rd Respondent : Mr.S.Srinivasa Raghavan
For R2 and R4 : No Appearance
For R1 : Died
JUDGMENT
This Civil Miscellaneous Appeal is directed as against the
judgment and decree on certain counts passed by the Motor Accident
Claims Tribunal, Additional Sub Court, Tenkasi, in M.A.C.O.P.No.145 of
2009 dated 12.04.2011 by the appellant/4th respondent/insurance
company.
2.For the sake of convenience, the parties are addressed herein as
per the rank in M.A.C.O.P.No.145 of 2009.
3.The brief facts leading to the filing of the Civil Miscellaneous
Appeal is as follows:-
This is a case of injury. On 08.04.2009, at about 12.15 p.m, in
Quilon to Tirumangalam National Highways Road, in the western side of
Chockampatti O.P. Police Station which is 5 kms north east to
Kadayanallur Police Station, the petitioner and his family went to Sastha
Temple for the Panguni Uthiram Festival in an auto bearing registration
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No.TN-76-B-0046. The said auto was driven by the petitioner. While so a
Maruti Omni car bearing registration No.TN-76-Y-8143 travelling from
opposite east to west direction directly hit against the auto. The petitioner
sustained severe injuries on his right leg and left hand and all over the
body. Seeking to compensate these injuries, restricting the claim to Rs.
10,00,000/-, the claim petition has been filed by the petitioner.
4.The first respondent is the owner of the Maruti car, the second
respondent is the insurance company with which the said Maruti car was
insured and the third respondent is the owner of the auto driven by the
petitioner. The fourth respondent is the insurance company with which
the auto was insured. The second respondent had filed a counter refuting
each and every allegations in the claim petition and an additional counter
was also filed by the second respondent pleading that the auto was
overloaded at the time of accident. A total number of eight persons
travelled in the said auto. As the result of which, the driver lost control
and had caused the accident. Hence, it is not necessary for the insurance
company to indemnify the insurer. It was pleaded that instead of four
persons nine persons travelled in the auto and thus resulted in the
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accident.
5.The learned Tribunal has framed three issues. Four witnesses
P.W.1 to P.W.4 were examined on the side of the petitioners and 23
documents Ex.P1 to Ex.P23 were marked. Four witnesses R.W.1 to R.W.
4 were examined on the side of the respondents and six documents Ex.R1
to Ex.R6 were marked. The respondents 1, 3 and 4 were called absent
and set exparte. On the basis of oral and documentary evidence and on
the basis of arguments submitted by respective parties, the learned
Tribunal proceeded to conclude that the accident had happened due to
rash and negligent driving of both the vehicles and the contributory
negligence was fixed on both the vehicles i.e. Auto and Maruti car. The
learned Tribunal directed the respondents 2 and 4 to pay the
compensation equally on 50%-50% basis. That apart the Doctor who had
examined the petitioner had issued a certificate of partial permanent
disability at 85% by observing the fact that the petitioner is a driver.
However, considering the fact that his right hand is fully functional, the
learned Tribunal has reduced 85% partial permanent disability as
certified by the Doctor to 45% partial permanent disability and fixed a
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notional monthly income as Rs.3,000/- and considering the factum, the
petitioner was 45 years at the time of accident, the relevant multiplier '15'
was adopted and the head of partial permanent disability was calculated
at Rs.2,16,000/- (Rs.3,000x12x15x45%). Further the Tribunal had passed
the award under following heads:-
Head Compensation awarded
(I)Partial Permanent Disability: Rs.2,16,000/-
(ii)Loss of income for six Rs.18,000/-
months:
(iii)Medical Expenses: Rs.9,000/-
(iv)Transportation: Rs.5,000/-
(v)Extra Nourishment: Rs.10,000/-
(vi)Pain and suffering: Rs.30,000/-
Total compensation awarded: Rs.2,88,000/- with interest @
7.5 % from the date of the claim
until the realization and costs.
6.Challenging the same, the appellant/fourth respondent/insurance
company has been filed this Civil Miscellaneous Appeal on the ground
that the learned Tribunal had failed to consider the factum of overloaded
auto rickshaw, which was driven by the petitioner.
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7.A critical perusal of materials available on record would prove
that the learned Tribunal had gone well into the fact that the auto
driver/petitioner being the person who drove the auto rickshaw at the
time of accident himself cannot be the petitioner. However, considering
the fact that the owner of the auto is not the petitioner but the first
respondent, the learned Tribunal had observed that the petitioner ought to
have filed an application under Workmen's Compensation Act. However,
considering the fact that the same would cause inordinate delay in the
petitioner getting compensation, since already 50% of the liability has
been fastened with the fourth respondent insurance company, the learned
Tribunal proceeded under the Motor Vehicles Act, 1988.
8.However, at the time of arguments, the learned counsel for the
third respondent submitted that already the entire 50% of compensation
amount was deposited before the learned Tribunal.
9.In view of the same, this Court is not inclined to interfere in the
award passed by the learned Tribunal. Accordingly, the Civil
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Miscellaneous Appeal stands dismissed. There shall be no order as to
costs. Consequently, connected miscellaneous petition is closed.
05.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
To
1.The Motor Accident Claims Tribunal, Additional Sub Judge,
Tenkasi.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
L.VICTORIA GOWRI, J.
Mrn
05.01.2024
https://www.mhc.tn.gov.in/judis
