The Manager v. Vadivelan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.02.2016

CORAM:

THE HON'BLE MR.JUSTICE S.VAIDYANATHAN C.M.A.No. 1643 of 2011 and M.P. No. 1 of 2011 The Manager United India Insurance Co. Ltd., No. 12-A, Kovai Salai Karur.

..Appellant/2nd Respondent Vs.

1. Vadivelan

2. Shanmugasundaram ..Respondents/Petitioner 1st Respondent Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 01.12.2010 made in M.C.O.P No.502 of 2008 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Namakkal.

For Appellant : Mr. S. Arunkumar For Respondents :

Mr. R. Jayaprakash for R1

J U D G M E N T

The Insurance Company has come up with this appeal challenging the quantum of compensation awarded by the Tribunal.

2.

In an accident which occurred on 19.01.2008, the claimant/1st respondent sustained fracture on his right leg, crush injury on the right foot and other multiple injuries all over his body. Hence, he filed a Claim Petition before the Tribunal seeking a sum of Rs.5,00,000/- as compensation. After analyzing the available oral and documentary evidence, the Tribunal awarded a sum of Rs.90,000/- as compensation, under the following heads:

Sl.No.

Heads Amount Permanent Disability Rs. 40,000.00 Pain and Suffering Rs. 15,000.00 Partial Loss of income Rs. 20,000.00

Sl.No.

Heads Amount Extra nourishment Rs. 10,000.00 Transportation to Hospital Rs.

5,000.00 Total Rs. 90,000.00 3.

Learned counsel appearing for the appellant/Insurance Company would mainly contend that the quantum of compensation awarded by the Tribunal is too high when compared to the injuries sustained by the claimant and that the Tribunal ought not have fixed 20% disability to calculate the loss of income of the injured, since it is an exaggerated assessment. He would further contend that the second respondent did not possess driving license and hence the appellant/ Insurance Company is not liable to pay the compensation. Hence, the Insurance Company has filed this Appeal.

4.

On the other hand, learned counsel appearing for the respondent/claimant would submit that at the time of accident, the claimant was working as a coolie and was earning a sum of Rs.5000/- per month. Due to the accident, he has suffered permanent disability on his right foot, which would certainly have an impact in his avocation, as he was working as a coolie and was also a tree climber and hence the Tribunal is right in assessing his disability at 20% and fixing Rs.2000/- per percentage.

5.

A perusal of the records would show that the injured claimant was aged 29 years at the time of accident and was working as a coolie. The Tribunal has rightly considered that due to the crush injury on the foot, there would be certainly an impact in his avocation and has assessed the disability at 20%. Hence, this Court is not inclined to interfere with the compensation awarded by the Tribunal towards "Permanent Disability" and " Loss of income". Taking note of the injuries sustained by claimant, the compensation awarded under other heads are also confirmed.

6. The fact that there was no driving license, was not disputed by the second respondent herein. This Court is of the view that the finding of the Tribunal that the burden is on the Insurance Company to prove that the driver of the Tractor had no valid license at the time of accident, cannot be accepted and the driver of the vehicle namely, the 2nd respondent herein, cannot be absolved of his liability. Hence, this Court makes it very clear that the appellant/ Insurance Company is entitled to recover the compensation awarded to the claimant, from the 2nd respondent. 7.

In fine, the Civil Miscellaneous Appeal is partly allowed, confirming the quantum of compensation and the rate of interest at 7.5% per annum awarded by the Tribunal. The

appellant/ Insurance Company is directed to deposit the entire award amount together with accrued interest, less the amount already deposited if any, to the credit of M.C.O.P.No.502 of 2008 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Namakkal, within a period of eight weeks weeks from the date of receipt of a copy of this order. On such deposit, the Tribunal shall pay compensation to the claimant in the form of a crossed Account Payee Cheque, favouring only the claimant and it should not be issued in favour of any other person/Company. No costs. Consequently, connected M.P.No.1 of 2011 is also closed.

Sd/- Assistant Registrar(CS II) //True Copy// Sub Assistant Registrar avr To :

Chief Judicial Magistrate, Motor Accidents Claims Tribunal, Namakkal.

+ 1 cc to M/S.R. Jayaprakash, Advocate, S.R.No.12688 + 1 cc to M/s. S. Arunkumar, Advocate Sr.12705 UG(CO) EU(18/04/2016) C.M.A.NO.No. 1643 of 2011 and M.P. No. 1 of 2011