Madras High Court
Pichaipillai vs Murugesan on 1 July, 2024
Author: Abdul Quddhose
Bench: Abdul Quddhose
C.M.A.No.2736 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.07.2024
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.2736 of 2021
Pichaipillai ... Appellant
..Vs..
1.Murugesan
2.IFFCO Tokio General Insurance Co. Ltd.,
IFFO Towers, Plot No.3,
29, Gurgaon, Gurgaon
Hariyana-122 001. ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the award and decree dated 19.02.2020 passed
in M.C.O.P No.78 of 2017 on the file of the Motor Vehicle Accident Claims
Tribunal/ Chief Judicial Magistrate, Ariyalur.
For Appellant : Mr.N.C.Ashok Kumar
For Respondents : Mr.M.Jayaraj for R2
1/9
https://www.mhc.tn.gov.in/judis
C.M.A.No.2736 of 2021
JUDGMENT
This appeal has been filed by the claimant seeking for enhancement of
compensation.
2. Under the impugned award, the Tribunal has converted the claim
filed by the appellant/claimant under Section 166 of Motor Vehicles Act, to
claim under Section 163-A of Motor Vehicles Act and awarded
compensation to the appellant/claimant as per Section 163-A of Motor
Vehicles Act.
3. Learned counsel for the appellant/claimant contended before this
Court that erroneously without any basis, the claim has been converted to
one under Section 163-A of Motor Vehicles Act and erroneously, despite
the appellant/claimant having sustained loss of earning capacity, the
Tribunal had not adopted the multiplier method.
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4. As seen from the impugned award, the Tribunal had directed the
second respondent/Insurance Company to pay the appellant/claimant a
compensation of Rs.1,01,205/- being the 50% of total compensation of
Rs.2,02,410/- together with interest at 7.5% per annum for the injuries
sustained by the appellant as a result of an accident caused by a vehicle
insured with the second respondent/Insurance Company. As seen from the
impugned award, there are no reasons given by the Tribunal for converting
the claim filed by the appellant/claimant under Section 166 of Motor
Vehicles Act to one under Section 163-A of Motor Vehicles Act. Before the
Tribunal, the appellant has also not filed any document to prove that he had
suffered loss of earning capacity on account of injuries sustained by him as a
result of an accident caused by the vehicle insured with the second
respondent. The exhibits Ex.P1 to P11 marked on the side of the
appellant/claimant are not relevant for the purpose of coming to the
conclusion as to whether the appellant/claimant had suffered loss of earning
capacity or not.
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5. Learned counsel for the appellant during the course of his
arguments submitted that the appellant is having additional documents to
prove that the appellant had suffered loss of earning capacity as a result of
an accident caused by the vehicle insured with the second respondent.
6. Being a welfare legislation, the appellant/claimant must be granted
an opportunity to produce additional oral and documentary evidence to
substantiate his contention that the multiplier method will have to be
adopted for assessing the compensation of the appellant/claimant towards
his loss of earning capacity. As seen from the discharge summary and the
disability certificate which have been marked as exhibits P.3 and P.11 before
the Tribunal, the appellant/claimant had sustained head injuries. However,
only due to the fact that he did not produce the documentary evidence to
prove that he had sustained loss of earning capacity, the Tribunal had not
adopted the multiplier method.
7. The Tribunal under the impugned award has granted pay and
recovery rights to the second respondent/Insurance Company, since the rider
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of the motorcycle insured with the second respondent was not possessing a
valid driving license at the time of the accident. The fact that the rider of the
motorcycle insured with the second respondent/Insurance Company was not
possessing a driving license at the time of the accident is an undisputed fact.
Only based on the said undisputed fact, the Tribunal under the impugned
award has granted pay and recovery rights to the second
respondent/Insurance Company. Eventhough this Court is inclined to
remand the matter for fresh consideration, the finding with regard to the fact
that the rider of the motorcycle insured with the second respondent was not
possessing a valid driving license is also confirmed by this Court, the said
finding cannot be altered by the Tribunal. Once the matter is sent back to
the Tribunal for fresh consideration, the pay and recovery rights granted to
the second respondent/Insurance Company as per the impugned award
cannot also be disturbed by the Tribunal. It is also undisputed fact that the
appellant/claimant was driving his motorcycle without having a valid driving
license at the time of the accident and he was also under the influence of
alcohol at the time of the accident.
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8. Learned counsel for the appellant would fairly submit that the
appellant has not challenged the impugned award with regard to the finding
rendered by the Tribunal that the appellant/claimant was not possessing a
valid driving license at the time of the accident and he was also under the
influence of alcohol. Therefore, the finding with regard to contributory
negligence on the part of the appellant/claimant fixed at 50% is confirmed
by this Court which cannot be disturbed/altered by the Tribunal once the
Tribunal passes an award pursuant to the order of the remand passed by this
Court.
9. Being a welfare legislation to protect the accident-victims, since the
contention of the appellant had not been considered by the Tribunal under
the impugned award and there is no discussion made by the Tribunal as to
how the claim under Section 166 of Motor Vehicles Act was converted to a
claim under Section 163-A of Motor Vehicles Act, this Court deems it fit to
set aside the impugned award and remand the matter back to the very same
Tribunal for fresh consideration.
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10. In the result, the impugned award dated 19.02.2020 passed in
M.C.O.P No.78 of 2017 by the the Motor Accident Claims Tribunal/ Chief
Judicial Magistrate, Ariyalur is set aside and the matter is remanded back to
the very same Tribunal for fresh consideration on merits and in accordance
with law, after affording an opportunity to both the appellant and the
respondents to let in additional oral and documentary evidence in support of
their respective contentions, and the Tribunal is directed to pass an award
within a period of six months from the date of receipt of a copy of this
judgment. However, the findings with regard to contributory negligence
fixed by the Tribunal under the impugned award on the part of the
appellant/claimant at 50% and grant of pay and recovery rights to the second
respondent/Insurance company are hereby confirmed .
11. Accordingly, this Civil Miscellaneous Appeal stands disposed of.
No costs.
01.07.2024
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
uma
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To
1.The Motor Vehicle Accident Claims Tribunal
Chief Judicial Magistrate
Ariyalur
2.The Section Officer
V.R.Section, High Court of Madras.
ABDUL QUDDHOSE, J.
https://www.mhc.tn.gov.in/judis
uma
01.07.2024
https://www.mhc.tn.gov.in/judis
