Madras High Court
The Regional Manager vs Radhakrishnan on 9 January, 2024
C.M.A. Nos. 2994 and 2995 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
C.M.A. Nos. 2994 and 2995 of 2021
and C.M.P. Nos.17051 and 17059 of 2021
(a). C.M.A. No.2994 of 2021:
The Regional Manager,
Regional Office,
National Insurance Co. Ltd.,
No.110, Jawaharlal Co. Ltd., 2nd Floor,
Puducherry ... Appellant / 2nd Respondent
Vs.
1. Radhakrishnan
2. Minor Purushothaman ... Respondent 1&2 / Petitioners 1 &2
3. Sankar ... 3rd Respondent/ 1st Respondent
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and decree dated 18.09.2019
passed in M.C.O.P. No. 530 of 2015 on the file of the III Additional District
& Sessions Judge, Motor Accident Claims Tribunal, Cuddalore @
Virudhachalam.
1/16
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C.M.A. Nos. 2994 and 2995 of 2021
For Appellant : M/s. J. Chandran
For RR 1 and 2 : M/s. S. Udhayakumar
For R3 : No Appearance
(b). C.M.A. No.2995 of 2021:
The Regional Manager,
Regional Office,
National Insurance Co. Ltd.,
No.110, Jawaharlal Co. Ltd., 2nd Floor,
Puducherry ... Appellant / 2nd Respondent
Vs.
1. Radhakrishnan ... 1st Respondent/ Petitioner
2. Sankar ... 2nd Respondent/ 1st Respondent
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and decree dated 05.12.2020
passed in M.C.O.P. No. 539 of 2015 on the file of the III Additional District
& Sessions Judge, Motor Accident Claims Tribunal, Cuddalore @
Virudhachalam.
For Appellant : M/s. J. Chandran
For R1 : M/s. S. Udhayakumar
For R2 : No Appearance
********
JUDGMENT
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C.M.A. Nos. 2994 and 2995 of 2021
These appeals have been filed by the insurance company challenging
the liability and quantum of compensation awarded in M.C.O.P. Nos. 530 of
2015, dated 18.09.2019 and 539 of 2015, dated 05.12.2020 on the file of the
III Additional District & Sessions Judge, Motor Accident Claims Tribunal,
Cuddalore @ Virudhachalam,
2. For the sake of convenience, the parties are referred herein
according to their litigative status and rank before the Tribunal.
3. On 28.01.2015, at about 6:00 PM, the first claimant namely
Radhakrishnan was riding a two wheeler bearing Registration No.TN-31-
BV-0274, in which his deceased wife Lalitha was travelled as a pillion rider
on the Salem to Virudhachalam main road from west to east direction. While
they reached near K.K.G. Farm, a TATA Venture van bearing Registration
No.TN-31-BV-0274, driven by its driver in a rash and negligent manner,
dashed against the two wheeler ridden by the first claimant, thereby causing
grievous injuries to both of them and immediately, they were taken to
Virudhachalam Government Hospital and subsequently, to Cuddallore
Government Hospital for major treatment. The first claimant's wife Lalitha
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C.M.A. Nos. 2994 and 2995 of 2021
has succumbed to injuries on the very same day. The brother of the claimant
Radhakrishnan has lodged a FIR in Cr.No.73/2015 U/s.279 and 304(A) of
IPC stating that an unknown goods van has caused the accident, the Police
have also investigated the case and identified that the goods vehicle involved
in the accident. For the loss of deceased Lalitha the claimant have filed
claim petition seeking compensation for a sum of Rs.20,00,000/- and for
injuries sustained, the first claimant has filed a separate claim petition
seeking compensation for a sum of Rs.15,00,000/- under section 166(1) of
the Motor Vehicles Act, 1988.
4. The first respondent, who is the driver cum owner of the said
TATA Venture van has not contested the claim and remained ex-parte. The
second respondent – insurance company, who is the insurer of the said goods
vehicle has filed a counter and contended that the vehicle has been falsely
implicated, since in the FIR, it is mentioned as unknown Goods Vehicle has
involved in the accident, hence there is a possibility of false implication of
the goods vehicle. The first respondent has also not come forward to produce
any documents regarding the driver and vehicle particulars, hence contended
that the insurance company is not liable to pay the compensation.
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C.M.A. Nos. 2994 and 2995 of 2021
5. Before the Tribunal, in M.C.O.P. No.530 of 2015, on the side of
the claimants P.W.1 was examined and Exs.P.1 to P.11 were marked. On the
side of the respondents, R.W.1 and R.W.2 were examined and Exs.R.1 to
R.3 were marked. In M.C.O.P. No.539 of 2015, on the side of the claimant,
P.W.1 was examined and Exs.P.1 to P.13 and Ex.X.1 - disability certificate
were marked, on the side of the respondents, no witnesses were examined
and no exhibits were marked.
6. Based on the evidence placed on record, the Tribunal in two
separate proceedings has held that the rash and negligence on the part of the
first respondent is responsible for the accident and the second respondent –
insurance company is liable to pay compensation to the claimants. The
Tribunal has also separately quantified and granted compensation for a sum
of Rs.17,12,800/- for the death of deceased Lalitha and Rs.8,04,495/- for the
injuries sustained by the claimant Radhakrishnan along with interest @ 7.5%
per annum from the date of filing of petition till the date of realization.
7. Aggrieved over the liability fixed on the second respondent –
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C.M.A. Nos. 2994 and 2995 of 2021
insurance company to pay the compensation and also for the quantum of
compensation, the insurance company has come forward with these appeals.
8. The learned counsel for the insurance company submitted that
vehicle of the first respondent was implicated in the case after a delay of 5
days and even there was no evidence to support the case of the claimants that
the first respondent vehicle is involved in the accident. The vehicle was
seized after five months and subjected to Motor Vehicles Inspection, and this
is sufficient to show that the first respondent vehicle was falsely implicated.
She also further submitted while quantifying the compensation for the
injured is concerned, the Tribunal has not properly assessed the disability in
terms of the principle laid down in the judgment of Hon'ble Apex Court in
Raj Kumar vs. Ajay Kumar [2011 ACJ 1] and the compensation awarded
for the injury sustained by the claimant therein has to be reduced and she has
not disputed the quantum of compensation awarded to the death of the
deceased Lalitha.
9. The learned counsel for the claimants submitted that based on
the evidence placed on record, the Tribunal has rightly concluded that the
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C.M.A. Nos. 2994 and 2995 of 2021
first respondent has negligently driven the vehicle and caused the accident,
which resulted in death of the deceased Lalitha and injuries to the claimant
namely Radhakrishnan and the quantum of compensation awarded in both
the cases are also on the lower side, hence prays to enhance the same, even
though, they have not preferred any appeal for enhancement of
compensation.
10. I have heard the submissions made on both sides and perused
the materials available on record.
11. Even though, the Tribunal has separately considered the claim
petitions has held that the rash and negligence on the part of the first
respondent is responsible for the accident and to arrive this conclusion, the
Tribunal has relied on the evidence of P.W.1 - claimant - Radhakrishnan and
according to him, he was riding the two wheeler along with his wife as a
pillioner on the left hand side of the road from west to east direction, while
he reached near K.K.G. Farm, a TATA Venture van, driven by its driver in a
rash and negligent manner, dashed against them, thereby causing grievous
injuries to both of them and immediately, they were taken to Virudhachalam
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C.M.A. Nos. 2994 and 2995 of 2021
Government Hospital and subsequently, to Cuddallore Government Hospital
for major treatment. His wife Lalitha has succumbed to injuries on the very
same day and he has undergone treatment for the severe injuries sustained.
In the cross examination, he has reiterated the very same facts and he has
also stated that he identified the driver, who caused the accident in the test
identification parade.
12. He has also denied the fact that the TATA Venture van was
seized after five months and subjected to Motor Vehicle Inspection. To
disprove his evidence, no eye witnesses or documentary evidences were
adduced on the side of the Insurance company. However, they have chosen
to examine the Motor Vehicle Inspector, who has accepted that the vehicle
was inspected belatedly by one of his colleague namely K. Vimala.
Similarly, R.W.2 - Insurance Official was examined in M.C.O.P.
No.530/2015 (Fatal case), that they have sent notices to the first respondent
for production of driving license and the same was not answered by the first
respondent. Except the evidence stated above, no other evidences were
produced before the Tribunal to dispute the manner in which the accident
has taken place.
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C.M.A. Nos. 2994 and 2995 of 2021
13. The Tribunal relied on the recital on the FIR, even though it
was registered against an unknown vehicle, and appreciated the evidence of
P.W.1 and other material records held that the first respondent herein is
responsible for the accident. The standard of proof required to be proved in
the Motor Accident Claim cases, has been considered by the Apex Court in
Bimla Devi and Ors. Vs. Himachal Road Transport Corporation and Ors.
[2009AC J1725] and reiterated in Anita Sharma and Ors. vs. New India
Assurance Co. Ltd., [2021 (1) TNMAC 321 (SC)] that "Claimants to
establish their case of occurrence of accident on the touchstone of
preponderance of probability and not on standard of proof beyond
reasonable doubt". The Tribunal has properly appreciated the evidence of
claimants and held that they have proved their case in preponderance of
probability. Hence, this Court finds no infirmity in the above finding
rendered by the Tribunal that the first respondent and his TATA Venture van
have involved in the accident and the same is hereby confirmed.
14. As far as the quantum of compensation awarded by the Tribunal
is concerned, the insurance company has not disputed the awarded of
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C.M.A. Nos. 2994 and 2995 of 2021
compensation for the death of the deceased Lalitha, hence this Court is not
inclined to question the quantum of compensation awarded in M.C.O.P.
No.530/2015 (Fatal case), in the absence of any objection. Further, the
claimants has also not seeking for enhancement of compensation. Hence,
the compensation awarded in M.C.O.P. No.530/2015 is hereby confirmed.
15. The insurance company has raised objection for the quantum of
compensation awarded in M.C.O.P. No.539/2015 for the injury sustained by
the claimant therein. The insurance company has contended that the
percentage of disability accepted by the Tribunal is on the higher side, since
the disability percentage assessed is not for the whole body. On perusal of
disability certificate marked as Ex.X.1 and Ex.P.9 - discharge summary
shows that the claimant has sustained compound fractures on the shaft of the
right leg, fractures on right fore arm and injury in the right middle finger and
the Medical Board has assessed the disability as 51%. Considering all these
injuries, the Tribunal has held that the claimant has sustained functional
disability and adopted multiplier method for granting compensation.
16. In this case, the claimant claimed that he was a 'Chef' by
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profession and was earning Rs.25,000/- per month and to prove the same, the
claimant has marked Ex.P.13 - Certificate issued by Tamil Nadu Food Safety
Corporation, which shows that the claimant was running a Catering service
in the name of 'Kolanjiappar'. The Tribunal even though accepted the
avocation of the claimant but fixed monthly notional income of Rs.7,500/-,
since no oral or documentary evidences were adduced by the claimant to
prove his income and granted Rs.6,88,000/- (Rs.7,500/- X 12 X 15
(multiplier) X 51% (disability)) as compensation under the head Loss of
earning capacity.
17. Considering the nature of injuries such as multiple fractures in
the hand, forearm, leg and injury in the middle finger, this Court is of the
view that the person, who is involved in cooking food; by profession
requires good physique and capable to do all kinds of manual work. The
nature of injuries sustained by him have prevented him from doing his
earlier avocation, which resulted in loss of earning capacity. As per the
guidelines laid down in the judgment of Hon'ble Apex Court in Raj Kumar
vs. Ajay Kumar [2011 ACJ 1], this Court is of the view that treating the
disability of the claimant as a functional disability by the Tribunal is proper
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C.M.A. Nos. 2994 and 2995 of 2021
and the claimant is entitled to get compensation under the head loss of
earning capacity.
18. However, the percentage of disability fixed by the Tribunal for
granting compensation under the head loss of earning capacity is on the
higher side since, the claimant has sustained fractures and this is not the case
of amputation, hence this Court is of the view that fixing 20% disability for
granting compensation under the head loss of earning capacity would be
proper and this Court also finds that the notional income fixed by the
Tribunal is on the lower side, considering the age of the claimant, this Court
is inclined to modify the same to Rs.10,000/- per month. Accordingly, the
loss of earning capacity is re-assessed as Rs.3,60,000/- (Rs.10,000/- X 12 X
15 X 20% (disability)).
19. The Tribunal has not awarded any future prospectus to the
claimant, as per Erudhaya Priya vs. State Express Transport Corporation
Ltd., [2020 SSCR 299 : 2020 ACJ 2159], the claimant is entitled to get
future prospectus, as per Ex.P.8 - driving licence, the age of the claimant is
38 years, the future prospectus is fixed as 40%. Accordingly, the future
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C.M.A. Nos. 2994 and 2995 of 2021
prospectus is assessed as follows:
Future Prospectus @ 40% = Rs.3,60,000/- X 40% = Rs.1,44,000/-
20. The Tribunal has awarded Rs.50,000/- under the head pain and
suffering, which is on the higher side, hence the same is modified to
Rs.30,000/-. The Tribunal has awarded Rs.10,000/- towards transportation
expenses, the medical records shows that the claimant has undergone
treatment in Chennai and he traveled from Virudhachalam regularly for his
treatment, hence the compensation awarded under transportation expenses is
on the lower side and the same is modified to Rs.15,000/-. The Tribunal has
awarded Rs.20,000/- towards future medical expenses, however the Tribunal
has not awarded any compensation under the head loss of amenities, hence
this Court is inclined to enhance the future medical expenses to Rs.25,000/-.
Whereas the other heads are concerned, the Tribunal has awarded a just
compensation, hence the same are hereby confirmed.
21. Accordingly, the award passed by the Tribunal in M.C.O.P.
No.539 of 2015 under various heads are hereby modified as follows:
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S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) reduced
1. Loss of earning capacity due 6,88,000 3,60,000/- Reduced
to disability
2. Pain and sufferings 50,000/- 30,000/- Reduced
3. Extra Nourishments 10,000/- 10,000/- Confirmed
4. Attender charges 10,000/- 10,000/- Confirmed
5. Medical expenses 14,995/- 14,995/- Confirmed
6. Future Medical expenses 20,000/- 25,000/- Enhanced
7. Transportation expenses 10,000/- 15,000/- Enhanced
8. Damage to two wheeler 1,000/- 1,000/- Confirmed
9. Future prospectus --- 1,44,000/- Granted
Total Compensation 8,04,495/- 6,09,995/- Reduced
22. In the result, these Civil Miscellaneous Appeals in C.M.A.
No.2994 of 2021 is dismissed and in C.M.A. No.2995 of 2021 is partly
allowed and the compensation awarded by the Tribunal in M.C.O.P. No.539
of 2015 at Rs.8,04,495/- is hereby reduced to Rs.6,09,995/- [Rupees Six
Lakh Nine Thousand Nine Hundred and Ninety Five 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
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C.M.A. Nos. 2994 and 2995 of 2021
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.Nos.530 and 539 of 2015 on
the file of the III Additional District & Sessions Judge, Motor Accident
Claims Tribunal, Cuddalore @ Virudhachalam. On such deposit, the
appellants/ claimants are permitted to withdraw the award amount now
determined by this Court along with interest and costs, less the amount if
any, already withdrawn, as per the apportionment fixed by the Tribunal. The
Tribunal shall disburse the amount now awarded by this Court by directly
giving credit to the Savings Bank Account of the claimants. Consequently,
connected civil miscellaneous petitions stands closed. There shall be no
order as to costs in the present appeals.
09.01.2024
stn
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
K. RAJASEKAR, J.
stn
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C.M.A. Nos. 2994 and 2995 of 2021
To:
1. The III Additional District & Sessions Judge,
Motor Accident Claims Tribunal,
Cuddalore @ Virudhachalam.
2. The Section Officer,
V.R.Section,
High Court, Chennai.
C.M.A. Nos. 2994 and 2995 of 2021
09.01.2024
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