Madras High Court
The Oriental Insurance Company Limited vs Vijayakumar on 23 January, 2025
Author: M.Dhandapani
Bench: M.Dhandapani
C.M.A.No.2533 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.01.2025
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.M.A.No.2533 of 2021
and C.M.P.No.14552 of 2021
and CROS.OBJ.No.19 of 2023
Prayer in C.M.A.No.2533 of 2021
The Oriental Insurance Company Limited,
Kallakurichi. ... Appellant
Vs.
1.Vijayakumar
2.Mynavathy ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated
27.04.2019 made in M.C.O.P.No.37 of 2013 on the file of the Motor
Accidents Claims Tribunal (Subordinate Court), Kallakurichi.
_________
Page 1 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
Prayer in Cross.Obj.No.19 of 2023:
Vijayakumar ... Cross Objector
Vs.
1. The Oriental Insurance Company Limited,
Kallakurichi.
2.Mynavathy ... Respondents
PRAYER : Cross Objection filed under Order XLI Rule 22 of the Code of
Civil Procedure, for enhancement of the compensation awarded in the
judgment and decree dated 27.04.2019 made in M.C.O.P.No.37 of 2013 on
the file of the Motor Accidents Claims Tribunal (Subordinate Court),
Kallakurichi.
C.M.A.No.2533 of 2021
For Appellant : Mr.M.Krishnamoorthy
For Respondents : Ms.K.Nithyashree for R1
R2-Ex-parte
_________
Page 2 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
Cross.Obj.No.19 of 2023
For Cross Objector : Ms.K.Nithyashree
For Respondents : Mr.M.Krishnamoorthy for R1
COMMONJUDGMENT
The appellant / Insurance Company, aggrieved by the quantum of
compensation awarded by the Motor Accident Claims Tribunal,
(Subordinate Court), Kallakurichi, in M.C.O.P.No.37 of 2013, dated
27.04.2019, has filed the present appeal.
2. Cross Objection No.19 of 2023 has been filed under Order XLI
Rule 22 of CPC seeking enhancement of the compensation granted by the
Tribunal vide award dated 27.04.2019 made in M.C.O.P.No.37 of 2013, on
the file of the Motor Accident Claims Tribunal, (Subordinate Court),
Kallakurichi.
_________
Page 3 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
3. Both the appeal and cross objection arise out of the same
accident and hence, they are disposed of by this common judgment.
4. For the sake of convenience, the parties are referred to as per
their ranks before the Tribunal.
5. On 20.03.2009, at about 19.30 hours, when the claimant was
walking on the left mud portion of Kallakurichi to Ka Mamanandal Road,
near Nalla Valliamman rice mill, the vehicle bearing Reg.No.TN 32 R 4553
passenger auto belonging to the first respondent was driven in a rash and
negligent manner and dashed against the claimant, due to which, the
claimant sustained grievous injuries. Claiming compensation for a sum of
Rs.5,00,000/-, the claim petition was filed by the claimant against the
respondents, who are the owner and insurer of the auto.
_________
Page 4 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
6. The Tribunal, on considering the facts and circumstances of the
case and on appreciation of oral and documentary evidence, came to a
conclusion that the accident had taken place only due to rash and negligent
driving on the part of the auto. Having rendered such a finding, the Tribunal
proceeded to determine the compensation payable at Rs.30,00,000/-. The
Tribunal directed the above compensation to be paid by the second
respondent with interest at the rate of 7.5% p.a.
7. Questioning the quantum of compensation awarded by the
Tribunal, the appellant / Insurance Company has filed the appeal.
8. Not being satisfied with the amount awarded by the Tribunal,
the claimant has filed Cross Objection No.19 of 2023 for enhancement of
compensation.
_________
Page 5 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
9. Heard Mr.M.Krishnamoorthy, learned counsel for appellant /
Insurance Company and Ms.K.Nithyashree, learned counsel for the first
respondent / Cross objector.
10. This Court carefully considered the submissions made on
either side and the materials available on record.
11. This Court also carefully went through the award passed by
the Tribunal.
12. The learned counsel for the appellant / Insurance Company
submitted that though the claimant submitted that he sustained 35%
disability, due to which, he could not continue his avocation and he was
de-promoted and his pay was reduced, the employer was not examined to
prove the said fact before the Tribunal. Without examining the employer and
ascertaining the income (i.e.,) prior to the accident and after the accident,
_________
Page 6 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
the Tribunal has taken the monthly income of the claimant at Rs.42,783/-.
Hence, this Court may remand the matter back to the Tribunal to ascertain
the income of the claimant (i.e.,) prior to the accident and after the accident
by examining the employer and to verify the fact as to whether due to
medical degradation, the claimant's pay was reduced.
13. The learned counsel appearing for the first respondent submits
that in order to prove the income, the claimant has marked the pay slips
which were marked as Ex.P9 and Ex.P10. Taking into consideration of the
above documents, the Tribunal has fixed the monthly income of the
claimant which does not require any interference by this Court and the
compensation awarded by the Tribunal under the other heads is also on the
lower side. Hence, she prays for dismissal of this appeal.
14. The second respondent remained ex-parte before the Tribunal.
15. Heard the learned counsel appearing for the appellant and the
learned counsel appearing for the first respondent.
_________
Page 7 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
16. It is seen from the records that the accident had taken place
on 20.03.2009 and the claimant has not produced any document to prove his
monthly income on the date of accident, but has produced the pay slips for
the months of August 2010 and December 2012 which were marked as
Ex.P9 and Ex.P10, and submitted that due to the accident, he sustained 35%
disability and he was de-promoted and his pay was reduced. This fact was
not properly adjudicated by the Tribunal and the Tribunal has mechanically
taken the monthly income of Rs.42,783/- without examining the employer
to ascertain the above fact. Hence, on the sole ground, the award dated
24.07.2019 passed in M.C.O.P.No.37 of 2013 by the Motor Accident Claims
Tribunal (Subordinate Court), Kallakurichi, is set aside and the matter is
remanded back to the Tribunal and M.C.O.P.No.37 of 2013 is restored on
file. The Tribunal is directed to examine the employer to ascertain the fact
as to whether due to medical de-gradation, the claimant was de-promoted
and his pay was reduced and also ascertain the income of the claimant (i.e.,)
prior to the accident and after the accident. The claimant is also at liberty to
_________
Page 8 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
examine his employer and mark the salary slip (i.e.,) prior to the accident
and after the accident. The Tribunal is directed to re-deposit the amount
deposited by the Insurance Company in an interest yielding fixed deposit
and dispose of the case within a period of three months from the date of
receipt of a copy of this judgment.
17. Accordingly, this Civil Miscellaneous Appeal is allowed.
There shall be no order as to costs. Connected miscellaneous petition is
closed.
18. In view of the judgment passed in CM.A.No.2533 of 2021, the
Cross Objection No.19 of 2023 stands closed.
23.01.2025
NCC : Yes / No
Index : Yes / No
Speaking Order : Yes / No
ssb
_________
Page 9 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
To
1.The Motor Accidents Claims Tribunal,
(Subordinate Court), Kallakurichi.
2. The Section Officer,
V.R. Section,
High Court, Chennai.
_________
Page 10 of 11
https://www.mhc.tn.gov.in/judis
C.M.A.No.2533 of 2021
M.DHANDAPANI, J.
ssb
23.01.2025
_________
https://www.mhc.tn.gov.in/judis
