Madras High Court
S.Manoj Prabhu vs R.M.Tamilzharasan on 25 October, 2024
C.M.A.(MD) No.73 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD)No.73 of 2023
S.Manoj Prabhu ...
Appellant
vs.
1.R.M.Tamilzharasan,
2.M.Xavier Joseph,
3.The Divisional Manager,
The United India Insurance Company Ltd.,
KAR Towers, R.S.Road,
Dindigul – 1. ...
Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicle Act, 1988, against the fair order and ex-decree dated
10.03.2022 in M.C.O.P.No.246 of 2018 on the file of the Motor Accidents
Claims Tribunal, Special Sub Court, Dindigul.
For appellant : Mr.S.Pugalendhi
For Respondents
for R1 : Mr.J.Cibi Chakraborthy
for R2 : No appearance
for R3 : Mr.I.Suthakaran
JUDGMENT
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The appeal has been filed challenging the finding on negligence and
seeking enhancement of compensation.
2. The appellant filed a claim petition before the Tribunal, stating
that while he was riding a two wheeler in Vadamadurai to Dindigul main
road, a water tanker lorry, which was proceeding in the same direction
ahead of him in a rash and negligent manner, suddenly stopped the vehicle
and reversed it, as a result of which he dashed against the lorry and
sustained grievous injuries.
3. The present owner of the vehicle and the erstwhile owner of the
offending vehicle who were arraigned, as respondents 1 and 2 before the
Tribunal, remained ex parte before the Tribunal.
4. The third respondent herein filed a counter, stating that the
accident took place only due to the negligence of the appellant; and that
the appellant was riding the two wheeler without keeping a safe distance
and dashed against the lorry and therefore, they are not liable to pay the
compensation.
5. Before the Tribunal, the appellant examined P.W.1 and P.W.2
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and marked Exs.P1 to P9. The respondents neither examined any
witnesses nor marked any documents. The disability certificate was
marked as Ex.C1.
6. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the rider of the two wheeler and the
driver of the tanker lorry insured with the third respondent are equally
responsible for the accident and fixed the contributory negligence at 50%
each on both of them and directed the third respondent to pay the
compensation at Rs.1,40,643/- being 50% of Rs.2,81,286/-.
7. The learned counsel for the appellant submitted that the
appellant, by examining himself as P.W.1, had proved the manner of the
accident; that FIR was registered as against the driver of the lorry; that the
respondents had not produced any evidence to dislodge the evidence
produced on the side of the claimant; and that the quantum of
compensation is meagre and hence prayed for enhancement of the
compensation.
8. The learned counsel for the third respondent, however, submitted
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that the Tribunal had passed a well considered award and there is no
reason to interfere with the same.
9. The learned counsel for the first respondent/owner of the vehicle
adopted the submissions of the learned counsel for the third respondent.
10. The points for consideration in the instant appeal are as follows:
'a. Whether the finding on negligence held by the Tribunal is
justified?
b. Whether the quantum of compensation awarded by the Tribunal
is just and reasonable?'
11. Admittedly, the respondents had not produced any evidence to
prove the manner of the accident. The FIR has been lodged against the
driver of the tanker lorry insured with the third respondent. The evidence
of P.W.1/appellant is corroborated by the contents of the FIR/Ex.P1.
Therefore, the finding of the tribunal fixing contributory negligence at
50% on the appellant is on the higher side. In the absence of any evidence
produced on the side of the third respondent to prove the manner of the
accident, it cannot be assumed that the claimant contributed equally to the
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accident. At the same time, it can be seen from the evidence of P.W.1 that
the accident could have been avoided if the appellant had kept a safe
distance from the vehicle proceeding in front of him. This Court is of the
view that since the appellant had contributed partially to the accident by
not keeping a safe distance, it would be reasonable to fix the contributory
negligence at 25% on the appellant. Point No.1 is answered accordingly.
12. As regards the quantum of compensation, it is seen that the
appellant had suffered disability of 20%, which is not in dispute. The
appellant did not produce any evidence to prove the functional disability.
Therefore, the reason given by the Tribunal for adopting the percentage
method for awarding compensation cannot be faulted. The learned counsel
for the appellant produced the judgement of the Hon'ble Division Bench
of this Court in the case of Future General India Insurance Company
Limited vs. Manivannan and others (C.M.A.No.3334 of 2021, dated
15.06.2022), wherein Rs.7,000/- was awarded for a percentage of
disability for the accident that took place in the year 2017. Hence, the
compensation under the head 'disability' is enhanced to Rs.7,000/- x 20 =
Rs.1,40,000/-.
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13. Considering the fact that the claimant suffered a hip fracture,
this Court is of the view that the compensation under the heads 'pain and
sufferings' and 'loss of amenities' can be enhanced to Rs.50,000/- each.
Considering the year of accident, the compensation under the heads
'transport expenses', ' extra nourishment' and 'attendant charges' can be
enhanced to Rs.10,000/- each.
14. P.W.2/doctor had deposed that a plate was fixed during the
surgery for treatment of the fracture in his hip. This Court, therefore, is of
the view that the future medical expenses for removing the plate and also
for physiotherapy cannot be ruled out. Hence, a sum of Rs.30,000/- is
awarded under the said head. Thus, the compensation awarded by the
Tribunal is enhanced as follows:
S.N Description Amount Amount Award
o awarded by the awarded by this confirmed,
Tribunal Court enhanced or
granted
1 Loss of Income Rs. 20,000/- Rs. 20,000/- Confirmed
2 Disability Rs. 1,00,000/- Rs. 1,40,000/- Enhanced
3 Medical expenses Rs. 1,34,286/- Rs. 1,34,286/- Confirmed
4 Transportation charges Rs. 2,000/- Rs. 10,000/- Enhanced
5 Extra nourishment Rs. 2,000/- Rs. 10,000/- Enhanced
6 Damages to clothing and Rs. 1,000/- Rs. 1,000/- Confirmed
articles
7 Pain and sufferings Rs. 10,000/- Rs. 50,000/- Enhanced
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S.N Description Amount Amount Award
o awarded by the awarded by this confirmed,
Tribunal Court enhanced or
granted
8 Loss of amenities Rs. 10,000/- Rs. 50,000/- Enhanced
9 Attender charges Rs. 2,000/- Rs. 10,000/- Enhanced
Total Rs.2,81,286/- Rs.4,25,286/- Enhanced by
Rs.1,44,000/-
25% of contributory (-) Rs.
negligence 1,06,321/-
Total Rs.3,18,965/-
15. The third respondent/Insurance Company is directed to pay
75% of the compensation, which is equal to Rs.3,18,965/- (Rupees Three
Lakhs Eighteen Thousand Nine Hundred and Sixty Five only), together
with interest at 7.5% p.a., from the date of the claim petition till the date
of realization and costs, less the amount already deposited, if any, within a
period of four (4) weeks from the date of receipt of a copy of this order.
16. On such deposit, the appellant/claimant is permitted to
withdraw the award amount with interest and costs, less the amount
already withdrawn, if any, by filing an appropriate application before the
Tribunal.
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17. In the result, this Civil Miscellaneous Appeal is partly
allowed. No costs.
25.10.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
apd
To
1.The Motor Accidents Claims Tribunal, Special Sub Court, Dindigul.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
SUNDER MOHAN,J
apd
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25.10.2024
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