Madras High Court
The Oriental Insurance Company Limited vs Balamurugan ... 1St on 30 April, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
C.M.A(MD)No.1196 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 04.04.2025
Pronounced on : 30.04.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A.(MD)No.1196 of 2023
&
C.M.P.(MD)No.1502 of 2025
and
Cros.Obj(MD)No.13 of 2025
C.M.A.(MD)No.1196 of 2023
The Oriental Insurance Company Limited,
Rep. Through its Branch Manager,
Sri Sankaran Buildings,
Near Chathanoor Junction,
Kollam-691 572. ... Appellant/2nd respondent
Vs.
1. Balamurugan ... 1st respondent/1st petitioner
2. Biju
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C.M.A(MD)No.1196 of 2023
3. The Managing Director,
Indroyal Furniture Company Private Limited,
TC2/2465(5), (6) Royal Plaza,
Pattorn,
Trivandram-695 004.
4. National Insurance Company Limited,
Through its Divisional Manager,
St. Joseph's Press Building, Vazhuthacaud,
Thiruvananthapuram-695 014.
... Respondents 2 to 4 / respondents 1, 3 & 4
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the fair and decreetal order dated
23.08.2023 made in M.C.O.P.No.984 of 2016 on the file of Motor
Accident Claims Tribunal/Special Sub Court, Tirunelveli and allow this
Civil Miscellaneous Appeal.
For Appellant : Mr.A.Ilango
For Respondents : Mr.S.Mukesh
for Mr.G.Ravisankar – for R1
Mr.J.S.Murali – for R4
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C.M.A(MD)No.1196 of 2023
Cros.Obj(MD)No.13 of 2025 in C.M.A.(MD)No.1196 of 2023
Balamurugan ... Cross Objector/1st respondent
Vs.
1. The Oriental Insurance Company Limited,
Rep. Through its Branch Manager,
Sri Sankaran Buildings,
Near Chathanoor Junction,
Kollam-691 572 ... 1st respondent/ Appellant
2. Biju
3. The Managing Director,
Indroyal Furniture Company Private Limited,
TC2/2465(5), (6) Royal Plaza,
Pattorn,
Trivandram-695 004.
4. National Insurance Company Limited,
Through its Divisional Manager,
St. Joseph's Press Building, Vazhuthacaud,
Thiruvananthapuram-695 014.
... Respondents 2 to 4 / respondents 2 to 4
PRAYER: Cross Objection filed under Order 41 Rule 22 of CPC, to set
aside the fair and decreetal order dated 23.08.2023 made in M.C.O.P.No.
984 of 2016 on the file of Motor Accident Claims Tribunal/Special Sub
Court, Tirunelveli, by enhance the award by Rs.20,00,000/- as further
compensation.
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C.M.A(MD)No.1196 of 2023
For Cross Objector : Mr.S.Mukesh
for Mr.G.Ravisankar
For Respondents : Mr.A.Ilango - for R1
Mr.J.S.Murali – for R4
COMMON JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
The appellant / 2nd respondent / Insurance Company has
filed this Civil Miscellaneous Appeal against the fair order and decreetal
order dated 23.08.2023 passed in M.C.O.P.No.984 of 2016 by the Motor
Accident Claims Tribunal/Special Sub Court, Tirunelveli. The claimant
in the said case has also filed a cross-objection.
2. The Motor Accident Claim Tribunal awarded a sum of
Rs.25,33,550/- towards compensation for the claimant. The learned
Judge directed the appellant/ Insurance company to pay the entire award
amount within 30 days from the date of the order.
3. Aggrieved by the said order, the Civil Miscellaneous
Appeal has been filed by the Insurance Company who is the 2nd
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respondent before the lower Court in M.C.O.P.No.984 of 2016 against
the negligence and quantum with the following among other grounds :
a) The amount awarded by the Claims Tribunal is very high
and excessive.
b) The Tribunal erroneously fixed the entire negligence on
the Insured Vehicle and held the Appellant Insurance Company liable
ignoring the factual evidence available before the Court.
c) The Tribunal in its finding held that the petitioner would
have slept and could not have seen the manner of the accident and no
other eye witness to the accident was examined to corroborate the nature
of the accident.
d) As per the averments of the petitioner in the main petition,
the Eicher van in which the petitioner travelled has dashed against the
rear side of the Insured Vehicle, a lorry bearing registration no. AL-19-
B-9507 parked without a parking lamp and indicator.
e) The petitioner in his attempt to suppress the negligence of
the Eicher van in which he travelled had stated different versions about
the nature and manner of an accident in the main petition, deposition
before the Tribunal and in his proof affidavit which are conflicting and
contradictory as follows :
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i) In the petition averment had stated that the Eicher
van in which the petitioner travelled had dashed against
the rear side of the Insured Vehicle Lorry bearing
Registration No.AL-19-B-9507 parked without a parking
lamp and indicator.
ii) Before the Tribunal, the petitioner stated that the
Eicher van dashed against the rear side of the Insured
Vehicle going in front with timber logs.
iii) In the proof affidavit, the petitioner stated that
the driver of the Insured Vehicle had overtaken the vehicle
in which he travelled and stopped suddenly which only
resulted in the accident.
f) The appellant had categorically denied the suggestion
during the examination of the witness that the Eicher van in which he
travelled was negligent and affirmed both vehicles were negligent in
causing the accident. Hence, he claimed compensation from the Insurers
of both vehicles.
g) The appellant submitted that considering the facts that the
vehicle in which the petitioner travelled alone hit the rear side of the
insured vehicle without maintaining the distance as per requirements of
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Rule 23 of Road Regulations, 1989. The vehicle in which the petitioner
travelled alone should be held liable for the accident and the Appellant
Insurance Company should be absolved from its liability.
4. Aggrieved with the impugned award passed in
M.C.O.P.No.984 of 2016, the 1st respondent/ petitioner has come out
with the Cross Objection in Cros.Obj(MD)No.13 of 2025 for
enhancement of compensation on the following grounds :
a) That the Tribunal has not awarded the Claim amount to be paid
with the interest rate of 12% from the date of filing to the date of order
and the Learned Tribunal has not approached a realistic view in fixing
the quantum.
b) That the Tribunal should have awarded a reasonable amount for
treatment expenses based on the nature of the injury.
c) That the Tribunal should have awarded future medical expenses
considering the disability.
d) That the Tribunal erred in awarding a meagre amount under the
head of transportation and failed to award any amount under the head of
damage to clothes. Additionally, the amounts awarded under other heads
were also inadequate and should be enhanced.
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e) That the Tribunal erred in awarding the future loss of earning
capacity at the rate of Rs.7,000/- is very low and should be enhanced.
The Tribunal should have adopted Rs.14,000/- as a notional income per
month.
f) That the Tribunal should have taken into account that the
amount of Rs.2,00,000/- was awarded for future medical expenses.
Therefore, prayed to enhance the award amount by modifying the order
of the trial Court.
5. The learned counsel appearing for the 1st respondent/
claimant argued that the accident took place due to the rash and negligent
Act of the 2nd respondent’s driver of the lorry bearing registration No.KL
19 B 9507 insured with the appellant. Hence, the 2nd and 3rd respondents
are jointly liable to pay compensation. A criminal case has been filed
against the driver of the lorry (insured with appellant) in Crime No.387
of 2016 for the offences under Sections 279, 338 IPC & 134(A)(B) of the
Motor Vehicle Act and the same is pending before the Judicial Magistrate
Court, No.1, Cherrhala. After considering the evidence on record, the
Tribunal held that the accident happened due to the negligence of the
lorry driver and accordingly directed the appellant to pay the
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compensation and dismissed the claim against the 3rd respondent and the
fourth respondent. There is no grounds to dismiss the order of the
Tribunal, he prayed to dismiss the Civil Miscellaneous Appeal and
prayed to enhance the compensation.
6. Heard the learned counsel on either side and perused the
materials available on records.
7. The 1st respondent is the petitioner before the Motor
Accident Claims Tribunal filed a claim petition under Section 166 of the
Motor Vehicles Amended Act with a prayer to award compensation of
Rs.20,00,000/- with future interest at the rate of 12% with costs.
8. As per the averment contained in the petition, on
29.03.2016, at about 03.15 hours the petitioner was travelling in an
Eicher van bearing registration No.KL 01 BM 2378 belonging to the 3rd
respondent insured with the 4th respondent. He was the acting driver,
seated near the driver. When the van was approaching Thuruvur on the
Allappey-Ernakulam main road near a Reliance petrol bunk at a slow
speed, observing all the traffic rules, a lorry bearing registration No.KL
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19 B 9507 belonging to the 1st respondent insured with the 2nd
respondent was found negligently parked on the road without any
indicator lamp or parking lamp illuminated to warn the approaching
vehicle. As a result, the driver of the Eicher van failed to notice the
parked lorry and collided with its rear side. As a result, the petitioner and
the driver of the Eicher lorry sustained injuries. The Eicher lorry was also
extensively damaged.
9. The 1st respondent /petitioner sustained multiple fractures
on his both legs besides multiple injuries all over the body. Immediately,
after the occurrence he was taken to a nearby hospital and taken to
Sushrushah Hospital at Nagercoil and admitted as an inpatient from
29.03.2016 to 11.04.2016. In the said hospital, he underwent surgery and
steel plates and screws were implanted in the affected areas on
30.03.2016. Even after his discharge, he continues to undergo treatment
to date. A sum of Rs.5,00,000/- was incurred towards medicines and
medical charges to him.
10. A criminal complaint was lodged against the driver of
the Lorry under Sections 279, 338 of IPC & 134(A)(B) of the Motor
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Vehicles Act and registered before the Kuthaiathode Police Station in
Crime No.387 of 2016. The said case was pending before the Judicial
First Class Magistrate Court-I, Cherrhala against the respondent’s driver.
11. The petitioner further stated that he was 36 years old at
the time of the accident and was active. Due to the multiple fractures
over both legs, the movements were completely affected. He is not able
to stretch or fold his legs. He is not able to walk or stand for a long time
without the help of the stick or others. Sitting and squatting is not
possible for him. His both legs were shortened. Due to the injury, he is
permanently disabled. He was a driver by profession and thereby earning
monthly a sum of Rs.15,000/- which has been now deprived of. He is
forced to be bedridden throughout his life. He is not able to continue his
profession as before. Hence he is undergoing mental agony and physical
suffering. Due to functional disability, he would not be able to do any
work in future, hence prayed for compensation.
12. The second respondent filed counter by stating that the
first respondent’s lorry bearing registration number KL 19 B9507 was
parked on the western side of the road on the Allepay-Ernakulam Road,
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opposite the reliance petrol bunk with indicator lamp and parking lamp.
The driver of the first respondent entered the road after indication and
signal with a sounding horn, the driver of the third respondent’s Eicher
van bearing Registration No.KL 01 BM 2378 was proceeding in the same
direction in a rash and negligent manner without observing the traffic
rules, the vehicle which was entering from the mud portion of the road to
the main road hit against the side of the second respondent’s lorry and
invited the accident. The second respondent is in no way liable for the
accident.
13. The third respondent filed a counter by stating that the
accident occurred only due to the negligent act of the second
respondent’s driver as his vehicle was parked without any indicator lamp,
or parking lamp and not due to the negligent act of the driver of the
Eicher lorry. The third respondent insured the vehicle with the fourth
respondent and the same was valid at the time of the accident
14. The fourth respondent filed a counter stating that the
accident happened solely due to the negligent act of the lorry driver. FIR
and charge sheet were filed against the driver of the lorry. The third
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respondent’s vehicle is not responsible for the accident and the fourth
respondent is not liable to pay any compensation.
15. During the trial, on the side of the petitioner, P.W.1
Balamurugan, the petitioner and P.W.2, Dr. Suresh Kumar, Government
Medical College Hospital, Tirunelveli were examined. Ex.P.1 to Ex.P.9
were marked and Ex.X1, Xerox copy of the charge sheet (with consent)
was marked on the side of the 4th respondent. No witnesses were
examined on the side of the respondents. Disability Certificate of the
petitioner (92%) issued by the Medical Board was marked as Ex.C1.
16. Ex.P.1, is the First Information Report in that the driver
of the lorry bearing Registration No.KL 19 B 9507, has been shown as
the accused. It was alleged in the FIR that the accused being the driver
of the lorry had driven the lorry No.KL 19 B 9507 in a rash and negligent
manner, thereby endangering human life. Furthermore, it was contended
that the accused had parked the vehicle on the Alleppey -Ernakulam main
road in front of the Reliance petrol Bunk. The driver of the Eicher van
who did not notice the improper parking of the above collided with it.
The driver of the Eicher van sustained multiple injuries and was admitted
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to a hospital.
17. A copy of the charge sheet was also marked with the
consent of both parties in which the lorry driver has been shown as
accused. The Investigating Agency after investigation observed that on
the date of the accident viz., 29.3.2016 at about 3.15 a.m., the vehicle
bearing Registration No.KL 19 B 9507 was parked on the western side of
the road, without an indicator, suddenly turned to its right and entering
the National Highways road carelessly and in negligent manner as the
accused was attempting to drive towards North side Road hit behind/on
the rear side of the Eicher van bearing Registration No.KL 01 BM 2378
which was plying from South to North on the same road. Due to the
Accident, the driver and another person of Eicher van were injured. After
the accident, without stopping the vehicle and giving first aid to the
injured or without informing the Police, the accused/driver of the lorry
was driven away, indulging in the offences under Sections 279, 338 of
IPC & 134(A)(B) of the Motor Vehicles Act. It was further noticed that
that accused was appeared before the Police and released on bail. The
vehicle that caused the accident was taken into custody and the test drive
was done by the Assistant Vehicle Inspector (sixth witness) and issued a
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certificate.
18. The petitioner in his petition stated that the driver of the
Lorry (insured vehicle) parked the lorry negligently, and without noticing
the same driver of the Eicher van hit the rear side of the lorry, causing the
accident. But during the chief examination, stated that the vehicle Eicher
van No.KL 01 BM 2378 was driven on the Allappey-Ernakulam National
Highways when the vehicle neared a reliance petrol bunk, the lorry
bearing Registration No.KL 19 B 9507 belonging to the 1 st respondent
was driven in a rash and negligent manner and tried to overtake the
Eicher van, suddenly applied brake, the driver of the Eicher van also
drove the vehicle in a rash and negligent manner and dashed against the
rear side lorry and he sustained injury. He stated that both drivers were
negligent for the accident.
19. The learned counsel appearing for the appellant,
therefore, argued that the driver of the Eicher van is alone responsible for
the accident and the insurance company of the above van is liable to pay
compensation and he should be absolved from the liability.
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20. However, in the counter affidavit filed by the owner of
the lorry admitted that the lorry bearing Registration No.KL 19 B 9507
was parked on the western side of the road on the Allappey-Ernakulam
road opposite to the Reliance petrol bunk, while the driver entering the
road, the driver of the Eicher van bearing Registration No.KL 01 BM
2378 who was proceeding in the same direction hit the rear side of the
first respondent's lorry and invited the accident. Therefore, the deposition
of the petitioner that the vehicle belonging to the lorry tried to overtake
the Eicher van and suddenly applied brakes appears to be incorrect
contrary to the statement contained in the climant petition.
21. Now the insurance company seeks to take undue
advantage of the petitioner’s evidence to disclaim its liability. However, a
party who has made an admission in the pleading is estopped from
subsequently traversing it to overcome deficiencies in his case and is to
exploit weakness in the case of the opposite party. Therefore, the
argument of the appellant that he should be absolved from the liability is
not sustainable.
22. From the available evidence, it appears that the
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appellant’s insurance vehicle which was parked opposite the western side
of Ernakulam Road, on the date of occurrence at 3.15 a.m. (midnight ),
suddenly entered into the northern side Road collided with the
petitioner's lorry which was plying on the same road and caused the
accident.
23. Normally the vehicle entering into highway is required
to adhere to traffic rules. It is the duty of the driver of the vehicle
entering the highway to switch on the indicator light to alert the vehicles
already on the road and allow them to adjust their moments for the entire
journey. In the present case it appears that the lorry driver failed to
comply with these mandatory traffic norms., and therefore after the
accident, the driver of the eicher vehicle filed a complaint against the
insured vehicle of the appellant. After receipt of the complaint, an FIR
was registered and a chargesheet was also filed and the case is pending.
If the accident occurred due to the negligence act of the driver of the
Eicher van, the lorry driver would have filed a complaint against the
driver of the Eicher van. No such complaint was filed, but as per the
chargesheet, the driver of the insured lorry escaped from the scene of the
occurrence. No witness was examined by the Appellant side to prove that
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the driver of the Eicher lorry was responsible for the accident.
24. The trial Court after considering the entire record and
evidence held that the 1st respondent driver is negligent, we hold it is
proper.
25. The Medical Board assessed disability at 92% for the
claimant. The claimant has not produced any document to prove his
monthly income. In the claim application, he claimed a sum of
Rs.20,00,000/- as compensation, but the Motor Accident Claims Tribunal
after considering the entire record fixed the monthly income at
Rs.9,800/- (Rs.7000 & Rs.2800) and awarded Rs.17,64,00/- for loss of
future earning based on medical bills awarded a sum of Rs.4,79,554/- for
medical expenses, Rs.1,00,000/- loss of conveyance, Rs.1,00,000/- for
pain and suffering, Rs.20,000/- for transport expenditure, Rs.50,000/-
attendant charges, Rs.20,000/- for extra nourishment, after taking into
consideration of the medical report and age of the petitioner, which is not
on the higher side or the lower side as stated in cross objection but
nominal and therefore, there is no ground available to enhance the
compensation.
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26. There are no other serious lapses in the order passed by
the Tribunal, to set aside the order of the Tribunal and no material
available to enhance the award amount. Therefore, we do not find any
merit in the Civil Miscellaneous Appeal, and hence, the Civil
Miscellaneous Appeal is liable to be dismissed and the Cross objection in
Cros.Obj.(MD)No.13 of 2025 is also liable to be dismissed.
27. In the result, the Civil Miscellaneous Appeal is
dismissed. No costs. Consequently, the connected miscellaneous petition
is closed.
28. The Cross objection in Cros.Obj.(MD)No.13 of 2025 is
dismissed. No costs.
(G.J., J.) & (R.P., J.)
30.04.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
GVN/RM
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To
1. The Special Sub Judge,
Motor Accident Claims Tribunal/
Special Sub Court dealing with MCOP Cases
Tirunelveli.
Copy to
1.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
gvn/ RM
and
30.04.2025
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