Madras High Court

P.Venkatachalam vs L.Kurugeshkumar on 3 February, 2025

                                                                                   C.M.A.No.2851 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 03.02.2025

                                                          CORAM

                                   THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                                 C.M.A.No.2851 of 2021
                     P.Venkatachalam                                              ... Appellant
                                                            vs.
                     1.L.Kurugeshkumar

                     2.IFFCO TOKIO General Insurance Company Ltd,
                      D.NO. 10/9, Pillayar Kovil Street, Thiruppur Town,
                      Tiruppur Taluk and District
                      Sub Office, D.NO. 138/2, 2nd Upstairs, LMR Shopping Argate,
                      MGM, Theater Opposite, Namakkal Town and District. ... Respondents

                            (Appeal is dismissed as not pressed against R1 vide Court
                            order dated 18.06.2024 made in C.M.A.No.2851/2021)
                     PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
                     Vehicles Act, praying to allow the present appeal and enhance the
                     compensation award in judgment and decree dated 10.09.2020 in
                     M.C.O.P.No.244 of 2017 on the file of the Motor Accidents Claims
                     Tribunal (Chief Judicial Magistrate), Namakkal as prayed for in this Civil
                     Miscellaneous Appeal.
                                     For Appellant      : Ms.D.Jeevitha
                                                          for M/s.R.Nalliyappan

                                     For R2             : Mr.B.Sivakollapan

                                     For R1             : Disd vide c/o dated 18.06.2024.


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                                                                                      C.M.A.No.2851 of 2021

                                                        JUDGMENT

Aggrieved by the quantum of compensation fixed by the Motor

Accident Claims Tribunal, Namakkal, the claimant has come by way of this

Civil Miscellaneous Appeal.

2. It is the case of the appellant/claimant that on 06.12.2016, the

appellant/claimant travelled in TVS Heavy Duty Two Wheeler bearing

Registration No.TN 29 BB 6393 from Perumbalai to Metcheri Road near

Thoppaiyar, at that time, a Maruthi Car bearing Registration No. TN 07 V

9832 belonging to the 1st respondent came from opposite direction in a rash

and negligent manner and dashed against the petitioner's vehicle. The

appellant/claimant suffered fracture and multiple injuries all over his body.

The claimant/appellant was inpatient for 8 days. The petitioner is a Mason

by profession. The injuries suffered by him affected his earning capacity.

Therefore, the claimant/appellant laid motor accident claims petition

seeking compensation of Rs.10,00,000/-.

3. The 1st respondent remained exparte before the Tribunal.

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4. The 2nd respondent/Insurance Company filed counter affidavit

denying all the averments found in the claim petition and disputed it's

liability.

5. Before the Tribunal, the claimant/appellant was examined as PW.1

and Medical witness was examined as PW.2. The Insurance Company

Official of the 2nd respondent was examined as RW.1.

6. Based on the evidence available on record, the Tribunal came to

the conclusion that accident had taken place due to the rash and negligent

driving of the 1st respondent's vehicle. The Tribunal also fixed contributory

negligence on the claimant on the ground that he failed to wear helmet at the

time of accident. The negligence on the part of the claimant was fixed at

15% and 85% of the negligence was fastened on the driver of the 1st

respondent's vehicle.

7. The 2nd respondent has not filed any appeal questioning the

negligence on the part of driver of the 1st respondent's vehicle. The learned

counsel appearing for the appellant submits that the appellant/claimant has

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not suffered any head injury and therefore, fixing of contributory negligence

on the part of the appellant is not sustainable. The learned counsel further

submits that accident had taken place in the year December-2016, therefore,

the amount fixed on percentage basis shall be enhanced. The learned

counsel also submits that having regard to the date of accident, the amount

of Rs.9,000/- fixed by Tribunal as monthly income, shall also be enhanced

and hence, amount under the head loss of income shall be enhanced. It is

also submitted that no amount was granted by the Tribunal under the head

of attendant charges and loss of earning, pain and suffering.

8. The learned counsel appearing for the 2nd respondent submits that

under Section 129 of the Motor Vehicles Act, 1988, the driver of the motor

vehicle is expected to wear helmet. Since the appellant/claimant was driving

the vehicle without wearing helmet, the Tribunal was justified in fixing 15%

of contributory negligence on the part of the claimant. The learned counsel

further submits that the Tribunal awarded Rs.65,000/- under the head of

pain and suffering and the same is on higher side having regard to the fact

the appellant/claimant was inpatient only for 8 days.

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9. A perusal of the typed-set of papers would suggest that the

appellant/claimant suffered following injuries:-

(1) Left tibial plateau (Schatzker type VI) type I open fracture.

(2) Contaminated Lacerated wound with exposed cut muscle over left

thigh.

(3) Contaminated Lacerated wound with skin avulsion flap over right

thigh.

10. Therefore, it is clear that the claimant has not suffered any head

injury. If the injury suffered by the petitioner is a head injury, the Tribunal

is entitled to fix contributory negligence on the part of the victim on the

ground that he failed to wear the helmet. In the case on hand, the claimant

suffered injuries only in the limbs of the body. Therefore, the Tribunal is not

justified in fixing contributory negligence at the rate of 15% on the

claimant, the said finding is liable to be set aside.

11. The accident had taken place in December-2016. By following the

judgment of the Division Bench of this Court in Future General India

Insurance Company Limited vs. Manivannan and others (C.M.A.No.3334

of 2021, dated 15.06.2022, this Court is inclined to fix Rs.5,000/- as a

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compensation for per percentage of disability. The petitioner suffered

disability at 15%. Therefore, he is entitled to compensation of Rs.75,000/-

under the head of permanent disability. The compensation awarded by the

Tribunal is enhanced to Rs.75,000/- from Rs.45,000/-.

12. Having regard to the age of the appellant and year of accident, the

notional income of the claimant was fixed by Tribunal at Rs.9,000/- which

is very much on the lower side. Therefore, the same is liable to the

enhanced. The Tribunal awarded a sum of Rs.27,000/- only as

compensation under the head of loss of income, though it held claimant

entitled to loss of income for four months at the rate of Rs.9,000/-. Having

regard to date of accident, this Court feels claimant entitled to notional

income of Rs.15,000/- and hence, amount under the head loss of income is

enhanced to Rs.60,000/- (4 months X 15,000).

13. Though the learned counsel appearing for the appellant advanced

argument on the ground that no amount was granted under the head of

attendant charges/loss of amenities, the Tribunal granted a sum of

Rs.65,000/- under the head of pain and suffering. The appellant/claimant

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was inpatient only for 8 days period. Having regard to the length of the

period, the amount awarded under the head of pain and suffering is on

higher side. Taking into consideration the said fact, this Court has not

chosen to award any amount separately under the head of attendant charges

and loss of amenities.

14. The award granted by the Tribunal on all other heads are

confirmed. Therefore, the claimant is entitled to enhanced compensation

under various heads as follows:-

Compensation Compensation Sl.

                                         Description          awarded by  awarded by         Remarks
                           No.
                                                             the Tribunal  this Court
                            1. Pain and Sufferings           Rs.65,000/-     Rs.65,000/-     Confirmed
                            2. Permanent Disability          Rs.45,000/-     Rs.75,000/-     Enhanced
                            3. Medical Expenses             Rs.1,91,654/-    Rs.1,91,654/-   Confirmed
                            4. Loss of Income                Rs.27,000/-     Rs.60,000/-     Enhanced
                            5. Transportation Charges        Rs.15,000/-     Rs.15,000/-     Confirmed
                            6. Extra Nourishment             Rs.10,000/-     Rs.10,000/-     Confirmed
                                            Total           Rs.3,53,654/-    Rs.4,16,654/-   Enhanced
                                   Less: 15% Contributory
                                   Negligence fixed    by    Rs.53048/-            -          Set aside
                                   Tribunal
                                                            Rs.3,00,600/-
                                                            (rounded off
                                   Total Compensation                        Rs.4,16,654/-
                                                                from
                                                            Rs.3,00,605/-)




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15. Therefore, the amount of compensation payable to the

appellant/claimant is enhanced from Rs.3,00,600/- to Rs.4,16,654/-. The

said enhanced sum shall be deposited by the 2nd respondent/Insurance

Company along with interest of 7.5% from the date of claim petition to the

date of realisation. The 2nd respondent/Insurance Company is directed to

deposit the enhanced sum of Rs.4,16,654/- before the Tribunal, within a

period of six weeks from the date of receipt of copy of this order. On such

deposit, the appellant/claimant is entitled to withdraw the said amount by

making formal application.

16. With the above direction, the Civil Miscellaneous Appeal is partly

allowed. No costs.




                                                                                             03.02.2025
                     Index                    :Yes
                     Speaking order           :Yes
                     Neutral Citation         :Yes
                     dm





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                     To

1.The Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Namakkal.

2.IFFCO TOKIO General Insurance Company Ltd, D.NO. 10/9, Pillayar Kovil Street, Thiruppur Town, Tiruppur Taluk and District Sub Office, D.NO. 138/2, 2nd Upstairs, LMR Shopping Argate, MGM, Theater Opposite, Namakkal Town and District.