Ravi v. Icici Lombard General Insurence Co Ltd, R.Ramasamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.12.2020
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN C.M.A.No.612 of 2011 (Through Video Conferencing) Ravi ... Appellant/Petitioner Vs.
1.R.Ramasamy 2.ICICI Lombard General Insurance Co. Ltd., Chottabai Centre, 2nd & 3rd Floor, Nungambakkam Main Road, Chennai - 34.
... Respondents/Respondents Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 as amended by Act 54 of 1994, to set aside the order dated 08.08.2009 made in M.C.O.P.No.822 of 2006 on the file of the Motor Accident Claims Tribunal cum Additional Subordinate Court, Salem in respect of contributory negligence and to enhance the compensation.
For Appellant : Mr.C.Kulanthaivel For 2nd Respondent : M/s.R.Sreevidhya
J U D G M E N T
The claimant is the appellant in this Civil Miscellaneous Appeal and is aggrieved by the impugned Judgment and Decree dated 08.08.2009 passed by the Motor Accident Claims Tribunal cum Additional Subordinate Court, Salem in M.C.O.P.No.822 of 2006.
2. By the impugned Judgment and Decree, the Tribunal has awarded a sum of Rs.1,04,336/- as compensation together with interest 7.5% per annum from the date of filing of the claim petition till the date of deposit to the appellant. The aforesaid amount was awarded after deducting 50% towards contributory negligence on the part of the appellant. In this appeal, the appellant seeks for enhancement of compensation.
3. The brief facts of the case are that on 18.06.2006 at about 2.45 p.m, while the appellant was travelling as a pillion rider in a TVS-50 driven by his friend Mohankumar near Seenapuram Bus Stop, Muthusamy Thouttam, an Auto bearing registration No.TN-39-AD-7663 allegedly came from the opposite
direction and dashed against the said TVS-50, as a result of which, as per the claim petition, the appellant sustained the following injuries:- i. Fracture in right side leg knee bone.
ii.Skin tarred in right side leg knee.
iii.Heavy beet * in right side hip.
iv.Heavy beet * in right side shoulder.
v. Heavy beet * in back side of head.
vi.Heavy beet * in right side leg tow.
vii.Lacerated injuries all over the body."
(*Meaning of Heavy blows)
4. Therefore, the appellant filed a claim petition for compensation of Rs.9,27,000/-. After considering the evidence on record, the Tribunal has awarded the aforesaid compensation to the appellant. Aggrieved by the same, this Civil Miscellaneous Appeal has been filed by the appellant for enhancement of compensation.
5. The learned counsel for the appellant submits that the appellant was a pillion rider and therefore, it cannot be concluded that there was contributory negligence on the part of the appellant. Therefore, the impugned Judgment and Decree holding 50% deduction from the compensation was liable to be set aside. It is further submitted that the amount awarded by the Tribunal towards loss of income at Rs.3,000/- for 15 months was liable to be increased.
6. He further submits that the Tribunal also erred in awarding only Rs.55,000/- towards injury. He also submits that the Tribunal ought to have awarded compensation on account of permanent disability by applying the multiplier as per the decision of the Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar and Another, (2011) 1 SCC 343.
7. Defending the impugned Judgment and Decree passed by the Tribunal, the learned counsel for the 2nd respondent Insurance Company submits that the decision of the Hon'ble Supreme Court in Raj Kumar case referred to supra make its clear that there should be a functional disability. In this case, there was no functional disability and therefore multiplier cannot be adopted. It is further submitted that even otherwise, the Tribunal has considered the so called functional disability considering the nature of injuries and the avocation of the appellant.
8. The learned counsel for the 2nd respondent Insurance Company further submits that the Tribunal has correctly deducted 50% on account of contributory negligence.
9. I have considered the arguments advanced by the learned counsel for the appellant and the learned counsel for
the 2nd respondent Insurance Company. I have perused the evidence on record and the impugned Judgment and Decree passed by the Tribunal.
10. At the outset, I would like to mention that recently the Hon'ble Supreme Court in Mohammed Siddique and Another Vs. National Insurance Co. Ltd., 2020 (1) TN MAC 161 (SC) held that in absence of any evidences to show that the wrongful act on the part of the victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. There the Hon'ble Supreme Court set aside the finding of the Tribunal and the High Court and held that the reduction of compensation by 10% on account of alleged contributory negligence cannot be justified.
11. The Court further held that at the most, it would have made person guilty of violations of the law under Section 128 of the Motor Vehicles Act, 1988 as the said Section imposed the restriction on the driver of the two wheeler to not to carry more than one person as a pillion rider. The Court further noted that Section 194-C inserted by the Amendment Act 32 of 2019 has merely prescribed a penalty for a violation of safety measures to the motorcycle driver and the pillion rider and therefore, the fact that the pillion rider along with driver may be a violation of the law does not necessary to lead the contributory negligence, unless it is established that this very act of riding along with two others, contributed to the accident on the victim.
12. In the facts of the present case, there is no doubt that the appellant travelled as a second pillion rider on the two wheeler. However, there is no evidence to suggest that it led to the accident. I therefore do not find any reasons to confirm that part of the impugned Judgment and Decree holding the appellant guilty of contributory negligence. Accordingly, the aforesaid finding given by the Tribunal in the impugned Judgment is set aside.
13. As far as the computation of the award is concerned, it is noticed that the appellant had suffered the aforesaid injuries. Ex.P12 Disability Certificate and the evidence of P.W.2 Doctor indicate that there was crushing in thigh bone. The appellant was a weaver by profession.
14. In my view, though the 55% permanent disability has been assessed, it has neither resulted in a permanent disability nor in a partial permanent disability. At the same time, the appellant would have been subject to inconvenience and the problems due to the injuries suffered by him. Considering the fact that the appellant was a weaver aged about 42 years, I am inclined to partially enhance the compensation under the heads of loss of income for 15 months
and the amount awarded towards partial permanent disability at Rs.55,000/-. The compensation awarded by the Tribunal towards loss of income for the 15 months is enhanced from Rs.45,000/- to Rs.67,500/- (4,500 x 15). Thus, there shall be an increase of Rs.22,500/-.
15. The Tribunal has awarded a sum of Rs.55,000/- for 55% partial permanent disability at Rs.1,000/- per percentage and the same is increased at Rs.1,500/- per percentage to sum of Rs.82,500/- (55 x 1,500) towards injuries. Thus, there shall be an increase of Rs.27,500/-. Therefore, the compensation of Rs.2,08,672/- awarded by the Tribunal is enhanced as follows:- Heads Amount awarded by the Tribunal Amount awarded by this Court Loss of Income Rs.45,000/- * Rs.67,500/- Transportation Rs. 5,000/- Rs. 5,000/- Extra Nourishment Rs.15,000/- Rs.15,000/- Damages to clothes Rs. 2,000/- Rs. 2,000/- Medical Expenses Rs.61,672/- Rs.61,672/- Pain and Suffering Rs.25,000/- Rs.25,000/- 55% Partial Permanent Disability Rs.55,000/- Nil Injury Nil ** Rs.82,500/- Total Rs.2,08,672/- Rs.2,58,672/- * Enhanced at Rs.4,500/- x 15 ** Enhanced at Rs.1,500/- x 55
16. Since the appellant has filed this Civil Miscellaneous Appeal with delay of 92 days, it is made clear that there shall be no interest for the aforesaid period of delay.
17. Though the Tribunal has directed the respondents to deposit the compensation jointly or severally, I am of the view that it is the 2nd respondent Insurance Company is liable to pay the compensation to the appellant as the 2nd respondent Insurance Company has contracted a contract of insurance which is contract of indemnity to indemnify the 1st respondent against any liability that may be fastened against the owner of the vehicle under the Motor Vehicles Act, 1988.
18. Therefore, the 2nd respondent Insurance Company is directed to deposit the compensation of Rs.2,58,672/- together with interest at 7.5% per annum from the date of claim petition till the date of deposit except for the period of delay and proportionate costs awarded by the Tribunal, less
any amount already deposited, within a period of six weeks from the date of receipt of a copy of this Judgment.
19. On such deposit, the appellant is permitted to withdraw the same together with interest and cost, less any amount already withdrawn, by filing suitable applications before the Tribunal.
20. Accordingly, this Civil Miscellaneous Appeal is partly allowed. No cost.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar jen To Motor Accident Claims Tribunal, Additional Subordinate Court, Salem.
+1cc to Mr.C.Kulanthaivel, Advocate, S.R.No.42665 C.M.A.No.612 of 2011 KJ(CO) GN(25/08/2021)