Madras High Court
M/S.The Iffco-Tokio General Insurance ... vs M.Vignesh ... 1St on 8 April, 2025
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.M.A.Nos.2285 of 2023 and 2854 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 29.01.2025
Pronounced on 08.04.2025
C O R A M:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
AND
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
C.M.A.Nos.2285 of 2023 and 2854 of 2022
and
C.M.P.No.21779 of 2023
in
C.M.A. No.2285 of 2023
C.M.A.No.2285 of 2023
M/s.The IFFCO-TOKIO General Insurance Co. Ltd.,
No.43/3, First Floor,
100 Feet Road, Mudaliarpet,
Pondicherry-605 004. ... Appellant/4th Respondent
-vs-
1. M.Vignesh ... 1st Respondent/Petitioner
2. M.N.Krishnamoorthy ... 2nd Respondent/1st Respondent
3. M/s.The National Insurance Co. Ltd.,
No.165, Nethaji Street,
Manjakuppam, Cuddalore. ... 3rd Respondent/2nd Respondent
5. P.Venkatesh ... 4th Respondent/3rd Respondent
Page No.1 of 20
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 praying to set aside the final award dated 6th
September, 2022 passed in M.C.O.P.No.1524 of 2016 by the Motor
Accident Claims Tribunal (Special Subordinate Court) at Cuddalore.
For Appellant : Mr.J.Michael Visuvasam
For R1 : Mrs.Ramya V.Rao
For R3 : Mrs.R.Srividya
For R2 & R4 : No Appearance
C.M.A.No.2854 of 2022
M.Vignesh ... Appellant/Petitioner
-vs-
1. M.N.Krishnamoorthy
2. M/s.The National Insurance Co. Ltd.,
No.165, Nethaji Street,
Manjakuppam, Cuddalore.
3. P.Venkatesh
4. The IFFCO-TOKIO General Insurance Co. Ltd.,
No.43/3, First Floor,
100 Feet Road, Mudaliarpet,
Pondicherry-605 004. ... Respondents/Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 praying to allow the appeal and enhance the
compensation awarded vide Award dated 6th September, 2022 made in
Page No.2 of 20
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
M.C.O.P.No.1524 of 2016 on the file of the Motor Accident Claims
Tribunal / Special Sub Court, Cuddalore.
For Appellant : Mrs.Ramya V.Rao
For R2 : Mrs.R.Srividya
For R1 & R3 : No Appearance
For R4 : Mr.J.Michael Visuvasam
*****
COMMON JUDGMENT
R.SAKTHIVEL,J.
Feeling aggrieved by the Award dated September 6, 2022
passed by the 'Motor Accidents Claims Tribunal / Special Subordinate
Court, Cuddalore', ['Tribunal' for short] in M.C.O.P.No.1524 of 2016, the
fourth respondent therein / Insurance Company has preferred C.M.A.No.
2285 of 2023 praying to set aside the Award, while the petitioner therein
has preferred C.M.A.No.2854 of 2022 praying to enhance the
compensation. This Common Judgment will now decide both the Civil
Miscellaneous Appeals.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Motor Claims Original Petition No.
1524 of 2016.
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
PETITIONER’S CASE
3. On January 10, 2016 at about 02.30 a.m., the petitioner /
injured was travelling in the Car bearing Registration No. TN-22-CH-9267
driven by one Ravi – a deceased in the accident, on Chennai-Trichy
National Highways near Chepauk Komugi Bridge River. At that time, a
lorry bearing Registration No. TN-34-D-3677, driven in a rash and
negligent manner, dashed against the Car. Consequently, the petitioner
sustained grievous injuries and multiple fractures all over his body and
head. According to the petitioner/injured, the accident occurred due to the
rash and negligent driving of the driver of the lorry. Before the Tribunal,
owner and insurer of the said car, as well as owner and insurer of the said
lorry, were arrayed as Respondent Nos.1 to 4 respectively. At the time of
accident, the petitioner was a 23 years old Pandit earning a sum of Rs.
50,000/- per month. Stating that the lorry was insured with the 4th
respondent and that the accident occurred due to the careless and reckless
driving of the driver of the 3rd respondent’s lorry, the petitioner filed the
Claim Petition before the Tribunal seeking compensation of Rs.
25,00,000/- (Rupees Twenty Five Lakhs only) along with interest and
costs from the respondents.
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
SECOND RESPONDENT’S CASE
4. It is the case of the second respondent that there was
negligence on the part of the driver of the lorry bearing Registration
No.TN-34-D-3677, as he drove the lorry in a rash and negligent manner,
causing the accident. In the absence of proof of negligence on the part of
the car driver, the 2nd respondent is not liable to pay any compensation to
the petitioner. Furthermore, the petitioner must establish the age, income,
and occupation of the deceased. The validity of the deceased’s driving
license, Registration Certificate, Permit etc., was disputed. The First
Information Report (FIR) was registered with a false narration of facts.
Stating that the compensation claimed is unsustainable and excessive, the
2nd respondent prayed for the dismissal of the claim petition.
FOURTH RESPONDENT’S CASE
5. It is the case of the fourth respondent that the allegation
that the lorry driver was the root cause of the accident is denied. As per
FIR and charge sheet, the car driver was responsible for the accident.
Since the car driver / deceased – Ravi died in the accident, the case was
closed as abated. Therefore, the 2nd respondent / insurer of the car is liable
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
to compensate the petitioner. Consequently, the claim against the 4th
respondent / insurer of the lorry is not maintainable, and therefore, the 4th
respondent has prayed for dismissal of the claim petition against it.
TRIBUNAL
6. The enquiry was conducted jointly with that of MCOP No.
1525 of 2016. Before the Tribunal, the petitioner in MCOP No.1525 of
2016, namely Balajisharma was examined as P.W.1 and the petitioner
herein was examined as P.W.2 and Ex-P.1 to Ex-P.21 were marked. On the
side of the respondents, one Santhialakshmi, Legal Officer of the 4th
respondent / insurer of the lorry was examined as R.W.1 and copy of
charge sheet was marked as Ex-R.1. The disability certificate No.2035,
issued by the District Medical Board, Government Head Quarters
Hospital, Cuddalore, assessing the disability of the petitioner at 37% was
marked as Ex-C.1.
7. The Tribunal, after considering the evidence available on
record, passed a common Judgment holding that the accident had occurred
on account of fault on part of the driver of the 3rd respondent’s lorry.
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
Accordingly, the Tribunal held that the 4th respondent, being insurer of the
lorry, is liable to pay the compensation to the petitioner.
8. With regard to quantum of compensation, though there was
no document produced in proof of income of the injured, on the basis of
the age of the injured and alleged occupation, the income of the injured
was taken notionally at Rs.10,000/- per month. The Tribunal, upon
considering the injuries sustained by the petitioner in the accident as well
as Ex-C.1 – Disability Certificate, computed the compensation for
disability on percentage method by taking Rs.5,000/- per disability
percentage and further, awarded compensation under various other heads
as stated below:-
Sl. No. Head Amount
1. Partial Permanent Disability Rs.1,85,000/-
(Rs.5,000x37%)
2. Pain and sufferings and mental agony Rs.1,25,000/-
3. Bystander chargers Rs.5,000/-
4. Transport Charges Rs.5,000/-
5. Nutrition Rs.25,000/-
6. Medical Expenses Rs.3,95,550/-
7. Loss of Earning for 6 months (Rs.10,000/-x6) Rs.60,000/-
8. Loss of Amenities Rs.10,000/-
Total Rs.8,10,550/-
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
9. Feeling aggrieved by quantum of compensation awarded by
the Tribunal as well as the liability fastened on it, the 4th respondent /
insurer of the lorry has preferred C.M.A.Nos.2285 of 2023. Whereas,
dissatisfied with the Award amount, the petitioner has preferred CMA No.
2854 of 2022 praying to enhance the Award amount.
ARGUMENTS:
10. Mr.J.Michael Visuvasam, learned counsel for the
appellant in C.M.A.Nos.2285 of 2023 / 4th respondent / insurer of the lorry
would argue that FIR was registered against the driver of the car. The
petitioner, having filed the claim petition based on the FIR, cannot turn
around and say contrary to the FIR that the accident had occurred due to
the rash and negligent driving of driver of the lorry. He would further
argue that the manner of the accident itself establishes that the first
respondent’s car’s driver alone was negligent and sole cause of the
accident. The Tribunal failed to consider the said aspects and by merely
relying on the evidence of an eyewitness / P.W.2, fastened the liability on
the 4th respondent /insurer of the lorry, which is erroneous. Further, he
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
would argue that the compensation awarded by the Tribunal is excessive
and not based on evidence. The notional income taken by the Tribunal is
on the higher side. Accordingly, he prayed to allow C.M.A.Nos.2285 of
2023, dismiss CMA No.2854 of 2022 and set aside the Award of the
Tribunal.
11. Per contra, Mrs.Ramya V. Rao, learned counsel appearing
for appellant in CMA No. 2854 of 2022 / petitioner, would contend that
the accident happened during wee hours on January 10, 2016, and P.W.2 /
petitioner has clearly deposed that the accident occurred only due to the
rash and negligent driving of the 3rd respondent's lorry’s driver. She would
further contend that it is clear from the evidence of one Singaravelan,
Special Sub Inspector of Police (S.S.I.), Veppur, who is a witness in the
connected matter arising out of the same accident in M.C.O.P.No.1523 of
2016, deposed as R.W.1 that, the car proceeded from South to North in the
correct lane and the lorry, which was proceeding from North to South, had
taken diversion, travelled in the car’s lane and dashed against the car.
From his evidence, it is discernible that the accident had occurred only due
to the rash and negligent driving of the 3rd respondent's lorry’s driver.
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
There is no infirmity or illegality in fixing the liability on the 4th
respondent / insurer of the lorry and hence, no interference is warranted in
this regard. Accordingly, she prayed to dismiss CMA No.2285 of 2023
filed by the insurer of the lorry.
11.1. Further she would contend that, the fixation of notional
income at Rs.10,000/- is very low and the same may be enhanced to Rs.
15,000/- per month, considering the facts and circumstances of the case as
well as the cost of living prevailing at that point of time. Further, though
as per Ex-C.1 - Disability Certificate issued by the Medical Board, the
injured sustained only 37% permanent disability, in reality, he suffered
100% functional disability and hence, the Tribunal ought to have applied
multiplier method to arrive at a just and fair compensation. Further, the
Tribunal failed to consider the loss of future earning capacity and the
Tribunal has not taken into consideration the future prospects of earning
while awarding the compensation. Accordingly, she would pray to allow
the CMA No.2854 of 2022 and enhance the compensation awarded by the
Tribunal.
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
12. Mrs.R.Srividya, learned counsel for the 3rd respondent in
CMA No.2285 of 2023 / 2nd respondent in CMA No.2854 of 2022 / insurer
of the car, referring to the evidence of said R.W.1 in M.C.O.P.No.1523 of
2016 / S.S.I. in regard of the manner of accident, would contend that the
accident occurred due to the rashness and negligence on the part of the
driver of the lorry and hence, it is the insurer of the lorry / 4th respondent
who is liable to pay compensation. There being no negligence on the side
of the car, 2nd respondent being its insurer, is not liable to pay any
compensation. Accordingly, she prayed to dismiss both the Civil
Miscellaneous Appeals as against insurer of the car.
DISCUSSION:
13. Heard the learned counsel on either side and perused the
evidence and materials available on record.
14. The accident occurred in the wee hours of January 10,
2016. Driver of the car, namely Ravi and front co-passenger, namely
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
S.Ramanarayanan passed away in the accident. The petitioner and two
others were injured. The dependents of the driver of the car – Ravi filed
M.C.O.P. No.1522 of 2016, in which one Singaravelan, Special Sub
Inspector of Police (S.S.I.), Veppur was examined as R.W.1 and he had
deposed that the injured’s car was travelling in the left lane in accordance
with the rules and norms, and it was the lorry which was diverted onto the
left lane / car’s lane due to road maintenance. Further, the petitioner in
this case, namely Vignesh examined himself as P.W.2, and deposed that
they were proceeding on the left lane as per rules towards Chennai and at
that time, the 3rd respondent’s lorry came in the opposite direction in their
lane (left lane) in a rash and negligent manner and caused the accident.
15. From the above evidence of the petitioner and the S.S.I., it
is discernible that the car was proceeding in the correct lane. Though the
lorry was diverted onto the left lane for road maintenance, the lorry driver,
for he is travelling in the opposite lane, ought to have taken more care and
caution. The burden is upon the 3rd respondent / owner of the lorry and the
4th respondent / the lorry’s insurer to prove that the lorry’s driver drove the
lorry in a careful and cautious manner while proceeding in the left lane /
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
car’s lane. In these circumstances, the 4th respondent / insurer of the lorry
ought to have examined the lorry driver, who is the competent person to
depose in this regard, but it failed to do so.
16. Though the FIR has been lodged against the driver of the
car, it has to be noted that it has been lodged by the lorry driver. He
naturally would have preferred the complaint in terms favourable to him
and hence, the FIR alone cannot be taken to fix negligence in this case.
One may argue that if really the lorry driver was negligent, the petitioner’s
side would have preferred a complaint too, or at least denied the FIR by
filing protest petition. On the face of it, the argument may seem plausible.
But one has to look deeper through the lens of facts and circumstances of
this case. The accident occurred in the wee hours. Two occupants passed
away in the accident, and the remaining three occupants including the
petitioner herein were injured in the accident and admitted in the hospital.
There is no evidence available on record to show whether the factum of
registration of FIR and the pursuant closure report was intimated to the
petitioner’s side or not. Considering the cumulative facts and
circumstances, this Court is of the view that non filing of FIR or protest
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petition on the side of the petitioner is not sufficient to impute negligence
on the car driver.
17. As per the evidence of petitioner herein / P.W.2, the driver
of the lorry was responsible for the accident. The evidence of R.W.1 in
M.C.O.P. No.1522 of 2016 / S.S.I. that on account of diversion, it was the
lorry driver, who barged into the lane in which the car was proceeding to
Chennai in the righteous direction, dashed against the car and caused the
accident, is plausible and strengthens the case of the petitioner. The
Tribunal, after considering the facts and circumstances, by relying on the
evidence of P.W.2 herein and R.W.1 in M.C.O.P. No.1522 of 2016, found
the 3rd respondent’s lorry’s driver negligent. Ex-P.4 – Motor Vehicle
Inspection Report [M.V.I. Report] and Ex-P.5 – Insurance Policy
document of the lorry would show that the 3rd respondent’s lorry was
insured with the 4th respondent at the time of accident and accordingly, the
Tribunal held the 4th respondent as the insurer of the lorry liable to pay
compensation to the petitioner. This Court finds no reason to deviate from
the said findings of the Tribunal.
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
18. The next line of argument put forth by the learned counsel
for the petitioner is that this is a fit case for applying multiplier method as
the petitioner suffers from functional disability on account of the accident
and that future prospects should also be taken into consideration, and the
same cannot be brushed aside.
19. Perusal of Ex-C.1 – Disability Certificate the petitioner
suffered diffuse axonal injury, fracture of left leg both bones, fracture of
nasal bone, leading to 37% permanent disability. Considering the
petitioner’s alleged occupation, this Court believes that the petitioner may
experience difficulty and discomfort in carrying out his occupation,
resulting in a functional disability of 15%. He might have difficulty in
squatting for a long time and even being exposed to smoke while
performing fire rituals. Hence, this Court deems this case fit for applying
multiplier method.
20. The Tribunal fixed Rs.10,000/- as notional income of the
deceased, which appears on the lower side. Considering the age of the
deceased, his alleged occupation, the cost of living prevailing at the time
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of accident and other facts and circumstances, this Court is of the view
that the deceased would have earned not less than Rs.12,000/- per month.
Bearing in mind Aandal’s Case [Andal -vs- Abhinav Kannan, reported in
(2019) (1) TN MAC 5], this Court takes the notional income of the
deceased at Rs.12,799/- per month. As per the Supreme Court’s guidelines
in National Insurance Co. Ltd. vs. Pranay Sethi reported in AIR 2017 SC
5157, a 40% increase for future prospects is granted. Then, multiplier of
18 is applied considering the age of the petitioner at the time of accident
viz., 23 years, in tune with Sarla Verma -vs- Delhi Transport
Corporation reported in (2009) 6 SCC 121. As stated supra, functional
disability is considered at 15%. Accordingly, the compensation under the
head of loss of earning capacity comes to Rs.5,80,517/-.
21. Since multiplier method has been adopted, there is no
need to grant compensation under the head of permanent disability and
hence, the same is removed.
22. Further, the Tribunal awarded Rs.3,95,550/- for medical
expenses. However, on perusal of Ex-P.21 – Medical Bills, it is seen that
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credit facility was extended to the petitioner in respect of payment of
medical bills to the tune of Rs.48,442/- and the said amount cannot be
included while reckoning the medical expenses. Hence, the said amount is
reduced under the said head. To be noted, the learned counsel for the
petitioner conceded to deposit the aforesaid amount.
23. Further, the compensation awarded by the Tribunal under
the heads of transportation charges, loss of amenities as well as attender
charges, appear to be on the lower side and hence are enhanced to Rs.
20,000/-, Rs.20,000/- and Rs.25,000/- respectively.
24. Accordingly, the petitioner/injured is entitled to get
enhanced compensation of Rs.11,42,625/-. The revised compensation is as
detailed below:
Sl.No. Head Amount
1. Loss of earning capacity Rs.5,80,517/-
(Rs.12,798/- + 40% x 12 x 18 x 15/100)
2. Pain and sufferings Rs.1,25,000/-
3. Attender chargers Rs.20,000/-
4. Transport Charges Rs.20,000/-
5. Nutrition Rs.25,000/-
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
Sl.No. Head Amount
6. Medical Expenses Rs.3,47,108/-
(Rs.3,95,550-Rs.48,442)
7. Loss of Amenities Rs.25,000/-
Total Rs.11,42,625/-
25. Therefore, the appellant / Insurance Company is directed
to deposit the enhanced award amount of Rs.11,42,625/- (Rupees Eleven
lakh forty-two thousand six hundred and twenty-five only) along with
interest at the rate of 7.5% per annum from the date of claim petition till
the date of deposit, to the credit of M.C.O.P.No.1524 of 2016 on the file of
Motor Accident Claims Tribunal (Special Subordinate Court), Cuddalore,
less the amount if any already deposited, within a period of eight weeks
from the date of receipt of copy of this Judgment. On such deposit being
made, the petitioner/injured is entitled to withdraw the same by filing
proper application. The petitioner/injured is directed to pay necessary
Court fee for the enhanced compensation, if any.
CONCLUSION:
26. Accordingly, C.M.A.No. 2854 of 2022 filed by the
petitioner / injured is allowed in part with proportionate costs as detailed
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
above. C.M.A.No.2285 of 2023 filed by the Insurance Company is
dismissed with no costs. Consequently, connected Civil Miscellaneous
Petition is closed.
(J.N.B.J.,) (R.S.V,J.,)
08.04.2025
Index: Yes / No
Internet: Yes / No
Speaking Order/ Non Speaking Order
ar/tk
To:
1. Motor Accident Claims Tribunal /
Special Subordinate Judge,
Cuddalore.
2. The Section Officer,
V.R.Section,
Madras High Court, Chennai.
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C.M.A.Nos.2285 of 2023 and 2854 of 2022
J.NISHA BANU,J.,
AND
R.SAKTHIVEL,J.,
ar/tk
PRE-DELIVERY JUDGMENTS IN
C.M.A.Nos.2285 of 2023 and 2854 of 2022
08.04.2025
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