Madras High Court
Sathiyamoorthi vs Boopathi on 12 September, 2024
Author: R.Hemalatha
Bench: R.Hemalatha
CMA.No.1622 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2024
CORAM:
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
C.M.A.No.1622 of 2024
Sathiyamoorthi ... Appellant
vs.
1. Boopathi
2. Saravanakumar
3. The Magma HDI General Insurance Co. Ltd.,
No.148-150, Creative Enclave, 2nd Floor,
Luz Church Road, Mylapore,
Chennai - 600 004. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Award, dated 01.09.2023 in
M.C.O.P.762/2020 on the file of the Motor Accident Claims Tribunal,
Special Subordinate Judge No-I, Salem.
For Appellant : Mr.T.S.Arthanareeswaran
For R3 : Mrs.R.Sreevidhya
JUDGMENT
The appellant is the claimant in M.C.O.P.762/2020 on the file
of the Motor Accident Claims Tribunal, Salem. He filed the claim petition
under Section 166 of the Motor Vehicles Act and Rule 3 of the M.A.C.T.
https://www.mhc.tn.gov.in/judis
Rules seeking compensation of Rs.25,00,000/- for the injuries sustained
by him in a road accident which happened on 16.02.2020.
2. The brief case of the appellant / claimant is as follows :
On 16.02.2020, the claimant was travelling as a pillion rider in a
two-wheeler bearing Registration number TAN 9555 on Pallipalayam-
Kokkarayanpet road. At about 4.00 p.m., a speeding Lorry bearing
Registration number TN 57 K 2122, hit the two wheeler, as a result of
which, the claimant fell down and sustained injuries all over his body. He
was immediately rushed to Government Hospital, Erode and
subsequently, he was admitted in Lotus hospital, Erode and was given
treatment as an inpatient, for about 20 days.
3. According to the claimant, the rash and negligent driving of
the driver of the Lorry bearing Registration number TN 57 K 2122 was
the cause of the accident and that since the said vehicle was insured with
the third respondent, the Magma HDI General Insurance Company
Limited, the owner and the insurer are jointly and severally liable to pay
compensation to him.
https://www.mhc.tn.gov.in/judis
4. In the Tribunal, the driver and the owner of the Lorry
remained absent and were set exparte. The Insurance Company resisted
the claim petition on all the grounds available to the insurer under Section
170 of the Motor Vehicles Act.
5. The Tribunal after analysing the evidence on record, fastened
negligence on the part of the driver of the Lorry bearing Registration
number TN 57 K 2122 and the claimant in the ratio 80:20 and directed the
third respondent, Magma HDI General Insurance Company to pay
compensation of Rs.5,06,666/- together with interest at the rate of 7.5%
per annum from the date of petition till the date of realisation, vide its
orders dated 01.09.2023. The Tribunal also held that the liability of the
owner of the lorry and the insurer is joint and several.
6. Aggrieved over the quantum of compensation and the
contributory negligence fastened on the part of the deceased to the extent
of 20% by the Tribunal, the claimant has filed the present appeal under
Section 173 of the Motor Vehicles Act, 1988.
https://www.mhc.tn.gov.in/judis
7. Heard Mr.T.S.Arthanareeswaran, learned counsel appearing
for the appellant and Mrs.R.Sreevidhya, learned counsel for the third
respondent.
8. Negligence:
8.1. The Tribunal has fastened 20% contributory negligence on
the part of the rider of the two wheeler bearing Registration number TAN
9555 on the ground that he drove the vehicle with two pillion riders. The
Police based on the information given by the driver of the Lorry bearing
Registration number TN 57 K 2122, registered FIR (Ex.P1) against the
rider of the two wheeler. In any event, the claimant was only a pillion
rider and there is nothing on record to show that he also contributed to the
accident.
8.2. It is settled law that if two tort-feasors are involved in an
accident, the claimant can proceed against any one of the tort-feasors and
all the tort feasors need not be shown as respondents. In the instant case,
the claimant has chosen to proceed against the driver of the Lorry and its
insurer. In the circumstances, fastening 20% of contributory negligence
on the part of the pillion rider of the two wheeler by the Tribunal, is
erroneous.
https://www.mhc.tn.gov.in/judis
9. Quantum:
9.1. A perusal of the discharge summary shows that the
claimant sustained the following injuries:
Polytrauma
i. Multiple ribs fracture (3rd-10th ribs) left side with
haemopneumothorax.
ii. compression fracture L3 Vertebra, Fracture spinous
process L2 Vertebra
iii. Degloving injury Right arm with loss of anterior
compartment muscles.
9.2. The Medical Board attached to Government Hospital,
Salem had assessed the partial permanent disability of the claimant as
25%. Since there is no functional disability, the Tribunal has awarded a
sum of Rs.30,000/- towards partial permanent disability. The accident
took place in the year 2020 and therefore a sum of Rs.7,000/- is awarded
per percentage of partial permanent disability. Thus, a sum of
Rs.1,75,000/- is awarded towards partial permanent disability. On account
of the injuries, the claimant would have been out of action atleast for six
months and therefore a sum of Rs.54,000/- (9,000 X 6) is awarded
towards loss of income.
https://www.mhc.tn.gov.in/judis
10. The following tabular column would show the award passed
by the Tribunal and the modification of the same by this Court:
S.No. Heads Amount awarded Award of this
by the Tribunal Court
1 Pain and sufferings Rs.30,000/- Rs.30,000/-
2 Loss of income Rs.27,000/- Rs.54,000/-
(9,000X6)
3 Medical expenses Rs.3,80,000/- Rs.3,80,000/-
4 Transportation charges Rs.20,000/- Rs.20,000/-
5 Extra Nourishment Rs.20,000/- Rs.20,000/-
6 Attender's chages Rs.15,000/- Rs.15,000/-
7 Damage to clothings Rs.1,000/- Rs.1,000/-
8 Discomfort for life Rs.15,000/- Rs.15,000/-
9 Disability Rs.1,25,000/- Rs.1,75,000/-
(25 X 7000)
Total Rs.6,33,332/- Rs.7,10,000/-
80% Rs.5,06,666/- 100% entire
compensation
11. Thus, the compensation awarded by the Tribunal is
enhanced to Rs.7,10,000/- which would carry interest at the rate of 7.5%
per annum.
https://www.mhc.tn.gov.in/judis
12. In the result,
i. The Civil Miscellaneous Appeal is partly allowed. No costs.
ii. The compensation awarded by the Tribunal is enhanced
Rs.7,10,000/-.
iii. 20% Contributory negligence fastened on the part of the appellant,
claimant, is set aside.
iv. The appellant / claimant is directed to pay court fee for the
enhanced compensation amount, if any, within a period of four
weeks from the date of this order and the Registry is directed to
draft the decree only after receipt of the Court fee.
v. The liability of the second respondent (owner) and the third
respondent (the Magma HDI General Insurance Company Limited)
is joint and several and the third respondent, Magma HDI General
Insurance Company Limited is directed to deposit the entire award
amount i.e. Rs.7,10,000/- (less the amount already deposited)
together with interest at the rate of 7.5% per annum from the date of
claim petition till the date of deposit within a period of four weeks
from the date of receipt of a copy of this order / uploading of this
order to the credit of M.C.O.P.762/2020 on the file of the Motor
https://www.mhc.tn.gov.in/judis
Accidents Claims Tribunal, Special Subordinate Judge No-I, Salem,
Chennai.
vi. On such deposit being made the appellant, claimant is permitted to
withdraw the same with accrued interest and costs in accordance
with law.
vii.The appellant/claimant is not entitled to claim any interest for the
period of delay of 131 days in filing this appeal.
12.09.2024
Index : Yes/No
Speaking/Non-speaking order
Neutral Citation : Yes / No
vum
To
1.The Motor Accidents Claims Tribunal,
Special Subordinate Judge No-I, Salem.
2.The Section Officer, VR Section,
Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
R.HEMALATHA, J.
vum
12.09.2024
https://www.mhc.tn.gov.in/judis
