Madras High Court
Ayyappan vs Manokaran on 3 February, 2025
CMA.No.3185 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2025
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CMA.No.3185 of 2021
Ayyappan
... Appellant
Vs.
1.Manokaran
2.The National Insurance Company Limited,
Branch Office No.II, Pondicherry.
3.Arul
4.The New India Insurance Company Limited,
Thiruvannamalai. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, to allow the present appeal award enhanced compensation in
judgment and decree dated 15.10.2019 in MCOP.No.296/2017 on the file of
the Motor Accident Claims Tribunal (Special Sub Judge, No.II (FAC),
Villupuram as prayed for in this Civil Miscellaneous Appeal.
1/11
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CMA.No.3185 of 2021
For Appellant : Ms.D.Jeevitha
For Respondents : M/s.N.B.Surekha for R2
M/s.S.Dhakshnamoorthy for R4
No Appearance for R3
R1-Dismissed vide
c/o dated 24/04/2024
J U D G M E N T
The appellant/injured claimant, not being satisfied with the
quantum of compensation awarded by the Motor Accident Claims Tribunal
(Special Sub Judge, No.II (FAC)), Villupuram, in M.C.O.P.No.296 of 2017,
dated 15.10.2019, has come by way of this Civil Miscellaneous Appeal.
2. The appellant/claimant met with an accident on 09.10.2005,
when he travelled as a pillion rider in Motor Vehicle driven by one
Bharath. It is the case of the claimant that Tipper lorry bearing registration
No.PY-01-AB-3238, which came in the opposite direction caused the
accident and as a result of which, he suffered fracture in the left femur.
Since no arguments were advanced on the question of negligence and
liability, necessary facts leading to the fixation of negligence and liability
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by the Tribunal not discussed herein.
3. Heard the learned counsel for appellant/claimant and the
learned counsel for second respondent/Insurance Company.
4. The learned counsel appearing for the appellant submits
that the claimants suffered fracture in the left femur and at the time of
accident, he was employed as a milk vending boy. The learned counsel
further submitted that the Tribunal committed error in fixation of
contributory negligence on the claimant at the rate of 15% on the ground
that the appellant/claimant failed to wear helmet. The learned counsel also
submitted that the Tribunal has not granted any amount towards loss of
amenities and therefore, the compensation fixed by the Tribunal needs
enhancement.
5. The learned counsel appearing for the contesting 3rd
respondent/insurance company would submit that the claimant failed to
wear helmet and hence, committed an offence under Section 129 of Motor
Vehicles Act and therefore, the Tribunal is justified in fixing 15% of
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contributory negligence on the claimant. He further submitted that the
claimant has not suffered any serious injury so as to affect the avocation and
hence Tribunal rightly awarded compensation on percentage basis.
6. This Court carefully considered the submissions made on
either side and the materials available on record.
7. A reading of the claim petition would suggest that at the
time of accident, the claimant was a college going student and he was also
employed as a milk vending boy. Based on Ex.P2-school certificate and
Ex.P3-Discharge certificate, the Tribunal came to the conclusion that the
claimant suffered fracture in the left femur and he was operated for the
same. The internal plate fixation was also done as a result of which, the
claimant suffered a shortage of “one inch” in the left leg. The Tribunal
based on Ex.C1-disability certificate issued by the Medical Board fixed
disability at 10% and calculated the compensation on percentage basis.
The accident had occurred on 09.10.2005, therefore, the Tribunal is
justified in fixing compensation at the rate of Rs.2,000/- per percentage of
disability. Hence, the amount of Rs.20,000/- fixed under the head
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permanent disability need not be interfered with.
8. Admittedly, the claimant failed to wear a helmet at the time
of accident, therefore, the Tribunal fixed contributory negligence of 15% on
the claimant and deducted proportionate compensation as mentioned earlier.
The claimant suffered a fracture in the left femur and there is no head injury.
In such circumstances, his failure to wear helmet has nothing to do with the
injuries suffered by him. The Tribunal ought not to have fixed the
contributory negligence on the appellant/claimant and deducted 15%
compensation amount payable to the claimant. Accordingly, the said
finding of the Tribunal is set aside.
9. As per the disability certificate Ex.C1, the claimant suffered
shortage of his limb. The discharge summary would indicate that the
claimant was operated and internal plate fixation was done. Therefore, the
claimant may not be in a position to lead a normal life. In such
circumstances, this Court deems it appropriate to grant a sum of Rs.10,000/-
towards loss of amenities.
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10. In the light of the above discussion, this Court modifies the
compensation in the following manner:
S.No Description Amount Amount
awarded by awarded by this
Tribunal Court
(Rs) (Rs)
1. Pain and suffering 20,000/- 20,000/-
2. Loss of Income 24,000- 24,000-
3. Nutrition 5,000/- 5,000/-
4. Damages to cloth 500/- 500/-
5. Transport 5,000/- 5,000/-
6. Permanent Disability 20,000/- 20,000/-
7. Attender charges 9,000/- 9,000/-
8. Loss of amenities - 10,000/-
Total 83,500/- 93,500/-
Less: Contributory (83,500/-*15%) -
negligence 12,525/-
Compensation payable 70,975/- 93,500/-
(12,525 – 83500) rounded off to
70,975/- Rs.71,000/-
11. In view of the discussion made earlier, the claimant is
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entitled to a sum of Rs.83,500/- as fixed by the Tribunal without deduction
of 15% towards contributory negligence. In addition to the same, the
claimant is entitled to a sum of Rs.10,000/- towards loss of amenities.
Hence, the claimant is entitled to enhance award amount of Rs.93,500/-
instead of Rs.71,000/-. The claimant is entitled to interest at the rate of
7.5% on the enhanced award. The respondents are directed to deposit the
enhanced amount with interest within a period of four weeks from the date
of a copy of this judgment, to the credit of M.C.O.P.No.296 of 2017 on the
file of the Motor Accident Claims Tribunal (Special Sub Judge, No.II
(FAC), Villupuram. On such deposit, the appellant is permitted to withdraw
the award amount now determined by this Court, along with interest and
costs, less the amount, if any, already withdrawn, by making formal
application before the Tribunal.
12. Accordingly, this Civil Miscellaneous Appeal is partly
allowed. No costs.
03.02.2025
Index : Yes/No
Speaking order:Yes/No
Neutral Citation:Yes/No
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ub
To
1.The Motor Accident Claims Tribunal
(Special Sub Judge, No.II (FAC), Villupuram.
2.The Section Officer
VR Section,
High Court,
Madras.
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S.SOUNTHAR, J.
ub
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03.02.2025
S.SOUNTHAR,J.
This matter is posted today under the caption 'For being mentioned' at
the instance of the learned counsel for the 2nd respondent.
2. The learned counsel for the 2nd respondent submitted that as per
the award passed by the Tribunal, only 3rd and 4th respondents are jointly
and severally liable to pay the award amount and the 2 nd respondent
Insurance company was exonerated. In the judgment passed in the appeal, in
Paragraph No.11, there is a direction to all the respondents to deposit the
enhanced amount along with interest. The same shall be a direction to the 4th
respondent.
3. Registry is directed to replace the words “respondents are” with
“ 4th respondent is” in the 7th line of 11th paragraph of the judgment dated
03.02.2025 in C.M.A.No.3185 of 2021.
4. Registry is directed to issue fresh order copy by incorporating the
above said changes.
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06.03.2025
nr
S.SOUNTHAR,J.
nr
06.03.2025
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