Madras High Court
The Divisional Manager vs K.Periyasamy on 3 January, 2024
C.M.A.(MD).Nos.1304 and 1305 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 04.12.2023
PRONOUNCED ON : 03.01.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)Nos.1304 and 1305 of 2016
C.M.A.(MD)No.1304 of 2016:-
The Divisional Manager,
The Royal Sundaram Alliance Insurance Co. Ltd.,
“Sundaram Towers”
45 & 46 Whites Road,
Chennai 600 014. ... Appellant
Vs.
1.K.Periyasamy
2.K.Yadav Kumar
3.P.Natarajan
4.The Divisional Manager,
Oriental Insurance Co. Ltd.,
73/B-1, Salai Road,
Lakshmi Complex,
Thillai Nager, Trichy. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to set aside the fair and decreetal order dated
1/18
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C.M.A.(MD).Nos.1304 and 1305 of 2016
13.04.2016 made in M.C.O.P.No.507 of 2009 on the file of the Motor
Accident Claims Tribunal (III Addl. Sub Judge), Trichy.
For Appellant : Mr.S.Srinivasa Raghavan
For R4 : Mr.C.Karthick
For R1 : Mr.P.Prabakaran
For R2 & R3 : No Appearance
C.M.A.(MD)No.1305 of 2016:-
The Divisional Manager,
The Royal Sundaram Alliance Insurance Co. Ltd.,
“Sundaram Towers”
45 & 46 Whites Road,
Chennai 600 014. ... Appellant
Vs.
1.Ravichandran
2.K.Yadav Kumar
3.P.Natarajan
4.The Divisional Manager,
Oriental Insurance Co. Ltd.,
73/B-1, Salai Road,
Lakshmi Complex,
Thillai Nager, Trichy. ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to set aside the fair and decreetal order dated
13.04.2016 made in M.C.O.P.No.506 of 2009 on the file of the Motor
Accident Claims Tribunal (III Addl. Sub Judge), Trichy.
2/18
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C.M.A.(MD).Nos.1304 and 1305 of 2016
For Appellant : Mr.S.Srinivasa Raghavan
For R4 : Mr.C.Karthick
For R1 : Mr.P.Prabakaran
For R2 & R3 : No Appearance
COMMON JUDGMENT
Both the Civil Miscellaneous Appeals have been filed as against
the common judgment and decree in M.C.O.P.Nos.506 and 507 of 2009
on the file of the Motor Accident Claims Tribunal (III Addl. Sub Judge),
at Tiruchirappalli dated 13.04.2016. Challenging the award passed by the
learned Tribunal, the appellant insurance company has filed these
appeals.
3.The brief facts leading to filing of these Civil Miscellaneous
Appeals are as follows:-
(i)On 12.01.2008, at about 04.15 a.m., the injured claimant in
M.C.O.P.No.506 of 2009 was driving a lorry bearing Registration
No.KL-01-C-7074. While the injured claimant was travelling in Trichy-
Madurai National Highway 45 feet road near Aanaikkal, another lorry
bearing registration No.TN-25-H-3499 which came in opposite direction,
which was driven by its driver in a rash and negligent manner lost control
over his vehicle and dashed against lorry bearing Registration No.KL-01-
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C.M.A.(MD).Nos.1304 and 1305 of 2016
C-7074 driven by the injured claimant. As the result of which, the lorry
driver who is claimant in M.C.O.P.No.506 of 2009 sustained multiple
injuries. However, the opposite side driver and cleaner died on the spot in
the said accident. A case was registered by Valanadu Police Station in
Crime No.6 of 2008 under Sections 279, 338 and 304(A) of IPC against
the injured lorry driver. The injured claimant in M.C.O.P.No.506 of 2009
sustained right pelvic bone fracture, right thigh bone compound fracture,
right foot and ankle fracture with deep lacerated crush injury and angle
peeled off, deep lacerated injury on his right elbow, right chest and also
deep cut and lacerated injuries on his left hand and deep abrasions on his
hip and skin avulsion with open wound and had tenderness and swelling
over the left femur and he had deep abrasions over his right elbow and
lacerated injury over the left foot and has severe head injuries and he has
contusion on his chest, neck, hip and other multiple grievous injuries all
over the body. Hence, the injured driver filed M.C.O.P.No.506 of 2009
claiming a compensation of Rs.4,00,000/-.
(ii)While the injured claimant in M.C.O.P.No.507 of 2009 was
travelling in Trichy- Madurai National Highway 45 feet road near
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C.M.A.(MD).Nos.1304 and 1305 of 2016
Aanaikkal, another lorry bearing registration No.TN-25-H-3499 which
came in opposite direction was driven by its driver in a rash and
negligent manner and had uncontrollable break neck speed. As a result of
which, the said lorry driver lost control over his vehicle and dashed
against the against the lorry bearing Registration No.KL-01-C-7074
which came in the opposite direction, driven by the injured claimant. The
injured petitioner in M.C.O.P.No.507 of 2009 was travelling as a
substitute driver in the lorry bearing registration No.KA-01-C-7074 and
he sustained fracture on his chest ribs, deep cut injury on his center head,
deep lacerated with cut injuries on his hip and lower back and cut injury
on his left forearm and his left ear with abrasions and both legs were
crushed. That apart he sustained contusion on his chest, neck, hip and
other multiple grievous injuries all over the body. He filed M.C.O.P.No.
307 of 2009 claiming a compensation of Rs.1,00,000/-.
4.Refuting the allegations in the claim petition, the second
respondent had filed a counter before the Tribunal and has sought for
dismissal of the claim petitions.
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C.M.A.(MD).Nos.1304 and 1305 of 2016
5.The learned Tribunal has framed three common issues in both
claim petitions. The learned Tribunal had examined three witnesses as
P.W.1, P.W.2, P.W.3 and Ex.P1 to Ex.P20 were marked on the side of the
petitioners. Only one witness R.W.1 was examined and Ex.R1 and Ex.R2
were marked on the side of the respondents. After recording the evidence
and hearing arguments on both the sides and scrutinizing both the oral
and documentary evidence, the learned Tribunal held that the accident
happened as the result of rash and negligent driving of the drivers of both
the lorries. As the result of which, the learned Tribunal fixed equal
liability attributing contributory negligence on both the drivers, thereby,
making the respondents 2 and 4 insurance companies as equally liable to
compensate the claimants in each of M.C.O.Ps respectfully.
6.In the instant case, the accident which happened on 12.01.2008
was because of collision of two lorries bearing registration Nos.KA-01-
C-7074 and TN-25-H-3499 which were travelling in opposite direction
in Trichy - Madurai National Highway 45 feet road near Aanaikkal. The
lorry bearing registration No.KA-01-C-7074 was insured with the fourth
respondent insurance company and lorry bearing registration No.TN-25-
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C.M.A.(MD).Nos.1304 and 1305 of 2016
H-3499 was insured with the appellant insurance company. Though the
injured claimants claimed that the accident happened only exclusively
due to the rash and negligent driving of the deceased driver and the
driver of the vehicle bearing registration No.TN-25-H-3499, the learned
Tribunal has meticulously examined Ex.R1 rough sketch and
Observation Mahazer and observed that the deceased driver who drove
the lorry bearing registration No.TN-25-H-3499 came in a wrong
direction and dashed against the lorry driven by the injured who was
driving the lorry bearing registration No.KA-01-C-7074, which was
insured with the fourth respondent insurance company. Despite the same,
the concerned Jurisdictional police has registered a case as against the
injured driver, who drove the lorry bearing registration No.KA-01-
C-7074. However, neither the owner of lorry bearing registration
No.KA-01-C-7074 nor the insurance company had opposed the same.
7.That apart the learned Tribunal has observed that for the purpose
of deciding M.C.O.P. filed by the deceased who drove the vehicle
bearing registration No.TN-25-H-3499, during mediation, it had been
concluded that the accident happened due to the negligence of the driver
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C.M.A.(MD).Nos.1304 and 1305 of 2016
of lorry bearing registration No.KA-01-C-7074. On the basis of which,
the said deceased driver has been compensated. However, considering
the factum that in mediation normally reliefs are granted without going
into facts, circumstances and the merits of the case, the learned Tribunal
had concluded that the liability cannot be fixed on the fourth respondent.
Hence, the learned Tribunal had held that it is necessary to conclude that
the accident had happened only due to the contributory negligence of
both the drivers who drove the lorries respectively. Considering the fact
that the third respondent had failed to take action against the FIR
registered as against his driver and also the contradictions in the rough
sketch Ex.R1 prepared by the police, the learned Tribunal had fixed the
liability equally on both the drivers bearing registration Nos.KA-01-
C-7074 and TN-25-H-3499 respectively. On the basis of various oral and
documentary evidence, the learned Tribunal has awarded compensation
in both the M.C.O.Ps., as under:-
M.C.O.P.No. 506 of 2009 507 of 2009
Petitioner's name Ravichandran Periyasamy
Head Compensation Compensation
awarded awarded
(i)Disability: Rs.1,92,000/- -
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C.M.A.(MD).Nos.1304 and 1305 of 2016
(ii)Pain and Rs.50,000/- -
sufferring:
(iii)loss of income Rs.30,000/- -
during treatment:
(iv)Medical Rs.3,59,765/- Rs.150/-
Expenses:
(v)Extra Rs.20,000/- -
Nourishment:
(vi)Transportation: Rs.15,000/- -
(vii)Attendant Rs.36,000/- -
charges:
(viii)Loss of Rs.1,00,000/- -
amenities:
(ix)Mental Agony: Rs.25,000/- -
(x)Disfiguration: Rs.30,000/- -
(xi)Loss for simple - Rs.20,000/-
injury:
Total compensation Rs.8,57,765/- with Rs.20,150/- with
awarded: interest @ 7.5 % interest @ 7.5 %
from the date of the from the date of the
claim until the claim until the
realization and costs. realization and costs.
Compensation to be Rs.4,28,882/- Rs.10,075/-
paid by the appellant
Compensation to be Rs.4,28,882/- Rs.10,075/-
paid by the fourth
respondent
8.Challenging the said award, the appellant/second respondent
insurance company has filed these appeals. The learned counsel
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C.M.A.(MD).Nos.1304 and 1305 of 2016
appearing for the appellant Mr.S.Srinivasa Raghavan categorically
submitted that the learned Tribunal has ought to have apportioned the
liability exclusively on driver of the third respondent's vehicle and ought
not to have directed the appellant/second respondent to compensate the
claimants in equal proportions since the negligence was only on the
driver of the third respondent and not on the driver of the vehicle owned
by the first respondent.
9.The learned counsel appearing for the appellant categorically
submitted that FIR that was marked as Ex.P1 was laid only against the
first respondent but the learned Tribunal has chosen to conclude that the
accident had happened only due to the negligence on the side of both the
drivers. Such a finding has to be set aside.
10.That apart the learned counsel appearing for the appellant
categorically submitted that in another connected matter in the Workmen
Compensation Act, the fourth respondent has agreed to settle entire
amount and had also agreed that there is no liability on the part of the
appellant and in the said circumstances, the learned Tribunal ought to
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C.M.A.(MD).Nos.1304 and 1305 of 2016
followed the same and directed only the fourth respondent to compensate
the claimants. The grant of loss of amenities Rs.1,00,000/-, Rs.25,000/-
towards mental agony and Rs.30,000/- for disfiguration are excessive and
untenable. Having granted Rs.50,000/- for pain and suffering, the
Tribunal ought not to have granted another Rs.25,000/- toward mental
agony and that Rs.30,000/- for disfiguration which is not impressible
considering the nature of injuries sustained by the injured claimants. On
that basis, the learned counsel appearing for the appellant insurance
company called for setting aside the fair and decreetal order of
M.C.O.P.Nos.506 and 507 of 2009 on the file of the Motor Accident
Claims Tribunal at Tiruchirappalli.
11.The learned counsel for the fourth respondent Mr.C.Karthick
vehemently submitted that the evidence of eye witness of the said
accident deposed by P.W.1 and P.W.3 explaining the manner of the
accident could itself facilitate in judging as to factum of negligence on
the part of the drivers of both the vehicles involved.
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C.M.A.(MD).Nos.1304 and 1305 of 2016
12.The learned counsel for the fourth respondent categorically
submitted to consider the version of the claimants in both the claim
petitions elaborating the rash and negligent driving of the driver who
drove the vehicle bearing registration No.TN-25-H-3499 and as the result
of which, the accident happened.
13.The learned counsel for the fourth respondent drew the
attention of this Court as to the observation of the learned Tribunal that
Crime No.6 of 2008 of Valanadu Police station was registered against the
surviving lorry driver only because of the fact that the FIR cannot be
registered against the deceased person thereby, implicating the driver
who had driven the lorry bearing registration No.KA-01-C-7074. The
Motor Vehicles Act, 1988 is a Welfare legislation and in complex case
like the instant case, the learned Tribunal has rightly balanced with the
facts and circumstances of the case and had fixed contributory
negligence on both the drivers who drove the lorries bearing registration
Nos.KA-01-C-7074 and TN-25-H-3499 respectively.
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C.M.A.(MD).Nos.1304 and 1305 of 2016
14.In view of the same, the learned counsel for the fourth
respondent pressed for dismissal of the appeals.
15.The learned counsel for the injured claimants, Mr.P.Prabhakaran
sought for enhancement of compensation by applying the multiplier
method.
16.Heard the learned counsel appearing for the appellant
Mr.S.Srinivasa Raghavan, learned counsel appearing for the 1st
respondent, Mr.P.Prabhakaran and learned counsel appearing for the 4th
respondent Mr.C.Karthick and perused the materials available on record.
17.No doubt in the instance case, the accident had happened as the
result of collision of two lorries bearing registration Nos.KA-01-C-7074
and TN-25-H-3499, which were travelling in Trichy main National
Highway 45 feet road near Aanaikkal in opposite direction.
18.The case on hand is a complex case where after the accident
both the driver and cleaner, in lorry bearing registration No.TN-25-
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C.M.A.(MD).Nos.1304 and 1305 of 2016
H-3499 died at the spot of the accident. Obviously the surviving driver
who drove the lorry bearing registration No. KA-01-C-7074 was
implicated in Crime No.6 of 2008, which was registered in connection
with the said accident. The Motor Vehicles Act, 1988 being a welfare
legislation, the learned Tribunal had meticulously analyzed the facts and
circumstances of the instant case and has critically arrived at a
conclusion logically by fixing contributory negligence on drivers of both
the vehicles equally.
19.I have no hesitation to concede to the observation made by the
learned Tribunal that the factum of having awarded the deceased driver
and the cleaner with the compensation need not result in fixing the
complete negligence and liability on the fourth respondent singlely.
Though the learned counsel for the appellant categorically argued that
the contradictions in the observation mahazer and rough sketch prepared
by Valanadu police cannot be a token of evidence in arriving at a
decision in fixing contributory negligence and liability on both the
drivers equally, considering the factum that the learned Tribunal has dealt
with the issue in hand equitably, I am not inclined to interfere with the
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C.M.A.(MD).Nos.1304 and 1305 of 2016
decision of the learned Tribunal as far as fixing the contributory
negligence on both the drivers are concerned.
20.It is pertinent to mention here that the compensation awarded to
the deceased drivers and cleaner under the Workman Compensation Act
in W.C.No.895 of 2008 before the learned Deputy Commissioner of
Labour, Chennai was not on merits but in a compromise arrived at
between the parties in the said case. However, taking note of the fact that
the learned Tribunal ought not to have granted a sum of Rs.25,000/- for
mental agony and having awarded a sum of Rs.50,000/- for pain and
suffering, a compensation of Rs.25,000/- granted under mental agony is
hereby set aside. That apart taking account of compensation of Rs.
1,00,000/- has been awarded under the head of loss of amenities, the
compensation awarded by the learned Tribunal under the head
disfiguration is very excessive and unnecessary. Hence, the total amount
of Rs.55,000/- shall be reduced from the total compensation of Rs.
8,57,765/- in M.C.O.P.No.506 of 2009. Hence, the total compensation for
the petitioner/injured/claimant in M.C.O.P.No.506 of 2009 would be
reduced to Rs.8,02,765/-.
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C.M.A.(MD).Nos.1304 and 1305 of 2016
Head Compensation Compensation Reduced/
awarded before awarded before Confirmed
learned this Court
Tribunal
(i)Disability: Rs.1,92,000/- Rs.1,92,000/- Confirmed
(ii)Pain and Rs.50,000/- Rs.50,000/- Confirmed
suffering:
(iii)loss of Rs.30,000/- Rs.30,000/- Confirmed
income during
treatment:
(iv)Medical Rs.3,59,765/- Rs.3,59,765/- Confirmed
Expenses:
(v)Extra Rs.20,000/- Rs.20,000/- Confirmed
Nourishment:
(vi)Transportatio Rs.15,000/- Rs.15,000/- Confirmed
n:
(vii)Attendant Rs.36,000/- Rs.36,000/- Confirmed
charges:
(viii)Loss of Rs.1,00,000/- Rs.1,00,000/- Confirmed
amenities:
(ix)Mental Rs.25,000/- - Reduced
Agony:
(x)Disfiguration: Rs.30,000/- - Reduced
Total Rs.8,57,765/- Rs.8,02,765/- Reduced
compensation
awarded:
21.The petitioner/claimant in M.C.O.P.No.506 of 2009 is entitled
to a sum of Rs.8,02,765/- as compensation with interest at the rate of
7.5% from the date of the claim petition till the date of realization. The
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C.M.A.(MD).Nos.1304 and 1305 of 2016
appellant/insurance company and fourth respondent/insurance company
are directed to deposit Rs.4,01,382/- each with 7.5% interest from date of
the claim petition till the date of realization and the amount if not
deposited earlier, has to be deposited within a period of 8 weeks from the
date of receipt of copy of this order. On such deposit, the
petitioner/claimant in M.C.O.P.No.506 of 2009 is permitted to withdraw
the award amount with proportionate interest after deducting any amount
received by him earlier without filing any formal petition before the
Tribunal. The appellant/insurance company and fourth
respondent/insurance company are entitled to withdraw the excess
amount, if any. The petitioner/claimant is not entitled for interest for the
default period, if there is any.
22.In view of the same, C.M.A.(MD)No.1305 of 2016 is partly
allowed and C.M.A.(MD)No.1304 of 2016 is dismissed. There shall be
no order as to costs.
03.01.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes
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C.M.A.(MD).Nos.1304 and 1305 of 2016
L.VICTORIA GOWRI, J.
Mrn
To
1.The Motor Accident Claims Tribunal,
(III Additional Sub Judge), Tiruchirappalli.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
C.M.A.(MD)Nos.1304 and 1305 of 2016
03.01.2024
https://www.mhc.tn.gov.in/judis
