S.Bharath v. N. Balakrishnan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.01.2021

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.No.3523 of 2019 S.Bharath ..Appellant/Petitioner Vs.

1.N.Balakrishnan (R1 remained exparte before Tribunal.

Hence, his presence is dispensed with) 2.ICICI Lombard General Insurance Company Limited, No.84/85, Waltax Road, Chennai -600 003.

..Respondents/Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated 19.10.2016 made in M.C.O.P.No.493 of 2014 on the file of the Motor Accidents Claims Tribunal, II Additional District and Sessions Court, Thiruvallur at Poonamallee. For Appellant : Mrs.A.Subadra for M/s.M. Malar For R2 : Mr.K.Poomalai

J U D G M E N T

The matter is heard through "Video-Conferencing". 2.This Civil Miscellaneous Appeal has been filed against the award dated 19.10.2016 made in M.C.O.P.No.493 of 2014 on the file of the Motor Accidents Claims Tribunal, II Additional District and Sessions Court, Thiruvallur at Poonamallee. 3.The appellant is the claimant in M.C.O.P.No.493 of 2014 on the file of the Motor Accidents Claims Tribunal, II Additional District and Sessions Court, Thiruvallur at Poonamallee. He filed the said claim petition, claiming a sum of Rs.12,00,000/-

as compensation for the injuries sustained by him in the accident that took place on 02.04.2014.

4.According to the appellant, on 02.04.2014 at about 07.30 A.M., while he was riding the motorcycle bearing Registration No.TN 22 CD 9181 on Kundrathur - Thiruneermalai road, near Thuthi Suvesesha Thirusabai Church, the driver of the car bearing Registration No.TN 11 D 7882 belonging to the 1st respondent drove the car from the opposite direction in a rash and negligent manner, endangering public safety and dashed against the motorcycle rode by the appellant and caused the accident. In the accident, the appellant sustained multiple grievous injuries all over his body. Therefore, he filed the said claim petition claiming a sum of Rs.12,00,000/- as compensation for the injuries sustained by him against the respondents, being the owner and insurer of the car respectively. 5.The 1st respondent-owner of the car remained exparte before the Tribunal.

6.The 2nd respondent-Insurance Company, being the insurer of the car filed counter statement and denied all the averments made by the appellant. According to the 2nd respondent-Insurance Company, the 1st respondent has not intimated anything about the accident to the 2nd respondent. The 2nd respondent denied that the car belonging to the 1st respondent was insured with them at the time of accident and there was no insurance policy for the 1st respondent-s car. The 2nd respondent denied the manner of accident.

According to 2nd respondent, at the time of accident, the driver of the car belonging to 1st respondent drove the same by following the road traffic rules and the appellant who was a student rode the motorcycle belonging to his father at the time of accident, suddenly gone to the wrong side and got skidded from his vehicle, fell down in front of the car and invited the accident. Therefore, the accident has not occurred due to the negligence on the part of the driver of the car belonging to 1st respondent, whereas, the accident has occurred only due to the negligence on the part of the appellant. Further, the appellant was not possessing valid driving license at the time of accident and he only contributed negligence to the accident.

The appellant has to prove that the driver of the 1st respondent-s car was possessing valid driving license and the 1st respondents car was having valid insurance policy, R.C.Book and other vehicular records at the time of accident. The appellant has to prove his age, avocation, income, nature of injuries and disability suffered by him by producing valid documents. In any event, the quantum of compensation claimed by the appellant is highly excessive and prayed for dismissal of the claim petition.

7.Before the Tribunal, the appellant examined himself as P.W.1, Dr.Subramanian was examined as P.W.2 and 12 documents were marked as Exs.P1 to P12. On behalf of the 2nd respondentInsurance Company, one R.Aiyyanar, Investigation Officer was examined as R.W.1 and two documents were marked as Exs.R1 & R2. 8.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by both the driver of the car belonging to the 1st respondent as well as due to rash and negligent riding by the appellant and fixed 80% negligence on the part of the driver of the car belonging to 1st respondent and 20% negligence on the part of the appellant and awarded a sum of Rs.9,28,750/- as compensation and directed the 2nd respondent-Insurance Company, being the insurer of the car to pay a sum of Rs.7,43,000/- towards 80% of the award amount as compensation to the appellant.

9.Challenging the portion of the award fixing 20% contributory negligence on the part of the appellant and for enhancement of compensation, the appellant has come out with the present appeal.

10.The learned counsel appearing for the appellant contended that the Tribunal erred in fixing 20% contributory negligence on the part of the appellant without there being any evidence let in by the respondents. The appellant was a student, doing Part Time job and he suffered fracture and multiple injuries in the accident. Due to the injuries, he completely lost his earning capacity. P.W.2/Doctor examined the appellant and certified that appellant suffered 40% disability. P.W.2/Doctor deposed to the nature of injuries and disability. The Tribunal failed to award compensation by adopting multiplier method. The appellant has taken treatment as inpatient from 02.04.2014 to 01.05.2014 at Sri Ramachandra Hospital, Porur.

The compensation awarded by the Tribunal under different heads are meagre and the Tribunal ought to have granted compensation for disability, loss of earning capacity, loss of income separately. The Tribunal failed to grant compensation for loss of amenities and future medical expenses and prayed for setting aside the portion of the award fixing 20% contributory negligence on the part of the appellant and for enhancement of compensation.

11.Per contra, the learned counsel appearing for the 2nd respondent-Insurance Company contended that the appellant who was a student riding the motorcycle at the time of accident, came to the wrong side, skidded and fell down in front of the car belonging to 1st respondent and suffered injuries. The Tribunal erroneously fixed 80% negligence on the part of the

driver of the car belonging to 1st respondent and awarded excessive amounts towards loss of earning capacity and pain and sufferings. The appellant has not proved that he was doing Part Time work and lost his earning capacity. In view of the same, he is not entitled for compensation by adopting multiplier method. The appellant has not made out any case for enhancement and prayed for dismissal of the appeal.

12.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the 2nd respondentInsurance Company and perused the entire materials on record. 13.From the materials available on record, it is seen that it is the case of the appellant that while he was riding the motorcycle, the driver of the car belonging to 1st respondent drove the same in a rash and negligent manner and dashed against the motorcycle rode by the appellant and caused the accident. In the accident, the appellant suffered multiple injuries. The appellant examined himself as P.W.1 and marked F.I.R., which was registered against the driver of the car belonging to 1st respondent as Ex.P1.

On the other hand, it is the case of the 2nd respondent-Insurance Company that accident has occurred only due to the negligence on the part of the appellant and they examined R.W.1 and filed Ex.R1/Summon and Ex.R2/AR copy. In Ex.R2/AR copy, it was mentioned that appellant fell down and sustained injuries. The Tribunal considering Ex.P1/F.I.R., held that accident has occurred only due to rash and negligent driving by the driver of the car belonging to 1st respondent and by considering Ex.R2/AR copy, held that appellant also contributed negligence to the accident and fixed 20% contributory negligence on the part of the appellant. There is no error in the said portion of the award fixing 20% contributory negligence on the part of the appellant. 14.

As far as quantum of compensation is concerned, the appellant has not let in any evidence to prove that he was doing Part Time job and was lost his earning capacity and lost income. Hence, appellant is not entitled to any amount towards loss of earning capacity by adopting multiplier method. P.W.2/Doctor examined the appellant and certified that appellant suffered 40% disability and issued Ex.P10/disability certificate to that effect. The Tribunal accepted the same and awarded a sum of Rs.1,20,000/- for 40% of disability at the rate of Rs.3,000/- per percentage of disability and the same is meagre. This Court by the judgment reported in 2020 (1) TN MAC 617 [M. Chinnathambi Vs. S.Deepa and another], fixed a sum of Rs.4,000/- per percentage of disability for the accident occurred in the year 2014 & 2015 and a sum of Rs.

raise in cost of living. In the present case, the accident is of the year 2014. In view of the same, a sum of Rs.4,000/- is awarded per percentage of disability. Thus, the compensation awarded by the Tribunal towards disability is modified to Rs.1,60,000/- (Rs.4,000/- X 40% disability). In view of the excess amounts awarded by the Tribunal towards pain and sufferings and loss of earning, the appellant is not entitled to any enhancement under other heads. The amounts awarded by the Tribunal under other heads are just and reasonable and hence, the same are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows:

S.

No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted

1. Disability 1,20,000/- 1,60,000/- Enhanced

2. Pain and sufferings 2,00,000/- 2,00,000/- Confirmed

3. Loss of earning 1,00,000/- 1,00,000/- Confirmed

4. Extra nourishment 30,000/- 30,000/- Confirmed

5. Transportation 20,000/- 20,000/- Confirmed

6. Medical expenses 4,31,000/- 4,31,000/- Confirmed

7. Damage to clothes 1,500/- 1,500/- Confirmed

8. Attendant charges 26,250/- 26,250/- Confirmed Total Rs.9,28,750/ - Rs.9,68,750/ - Enhanced by Rs.32,000/- (Rs.7,75,00 0/- - Rs.7,43,000 /-) 80% of the award amount Rs.7,43,000/ - Rs.7,75,000/ - 15.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.7,43,000/- is hereby enhanced to Rs.9,68,750/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2nd respondent-Insurance Company is directed to deposit 80% of the award amount, (i.e., Rs.7,75,000/-) now determined by this Court, along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.493 of 2014 on the file of the Motor Accidents Claims Tribunal, II Additional District and Sessions Court, Thiruvallur at Poonamallee. 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 necessary applications before the Tribunal. It is made clear that the appellant is not entitled to any interest for the delay period as per the order of this Court dated 19.08.2019 made in C.M.P.No.13348 of 2019 in C.M.A.No.SR.55957 of 2019. No costs. s/d- Assistant Registrar True Copy Sub-Assistant Registrar krk To 1.The II Additional District and Sessions Judge, Motor Accidents Claims Tribunal, Poonamallee, Thiruvallur.

2.The Section Officer, VR Section, High Court, Madras.

+1 CC to Mr.K. Poomalai, Advocate sr 4640.

+1 CC to Mrs.M. Malar, Advocate sr 5047 C.M.A.No.3523 of 2019 VBA(CO) SP(03/09/2021)