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Madras High CourtCMA/1350/2017dismissed

United India Insurance Company v. Manoharlal

2019-03-14Honourable Mr Justice M.V. Muralidaran5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 26.09.2018 Delivered on : 14.03.2019

CORAM:

THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN C.M.A.No.1350 of 2017 and C.M.P.No.7127 of 2017 United India Insurance Company Ltd., No.134, Greams Road, Chennai-600 017.

.. Appellant/2nd Respondent Vs.

1.Manoharlal 2.B.Shantilal .. Respondents /Petitioner & 1st Respondent (2nd Respondent herein was called absent and made Ex-parte in Lower Court) Civil Miscellaneous Appeal filed under Section 173 of M.V. Act, 1988, against the Decree and the Judgment dated 08.12.2016 passed in M.C.O.P.No.2287 of 2010 on the file of the Motor Accidents Claims Tribunal, (Special Sub-Judge, Court of Small Causes), Chennai full Additional Incharge Special Subordinate Judge-II, Small Causes Court, Chennai.

For Appellant : Mr.G.Udayasankar For Respondents : Mr.K.Varadha Kamaraj (for R1) R2 - Ex-parte

JUDGMENT

This Civil Miscellaneous Appeal has been filed against the judgment and decree dated 08.12.2016 made in M.A.C.T.O.P.NO.2287 of 2010 on the file of Motor Accident Claims Tribunal, in the Court of Small Causes, Chennai.

2.The Appellant -Insurance Company is the second Respondent, 1st Respondent is Claimant/Petitioner and 2nd Respondent is the 1st Respondent in M.A.C.T.O.P.NO.2287 of 2010, on the file of Motor Accident Claims Tribunal, in the Court of Small Causes, Chennai. According to the 1st Respondent while he was travelling as Pillion rider in Motor Cycle bearing Registration No.TN.07-T5051 on 06.12.2009 at about 13.30. Hours near KMC Hospital at Poonamallee High Road, the 2nd Respondent riding the Motor Cycle bearing Reg.No.TN.07.T.5051 rash and negligent manner to avoid hit the Cyclist one who crossed the Road suddenly turned right side of the road as such hit the median of Poonamallee High Road, due to which the petitioner thrown away from Motor Cycle bearing Registration No.TN-07-T-5051 he suffered multiple grievous injuries.

The 1st Respondent was 54 years at the time of accident and Proprietor of Rajasthan Rothi Ghar at Triplicane High Road,Chennai-05 and earning Rs.1,50,000/- per month. He claim a sum of Rs.6,00,000/- as compensation. The 2nd Respondent is owner of the vehicle remained exparte.

3.The Appellant filed counter statement and denied various allegations made by the 1st Respondent and pleaded the accident not happened due to rash and negligent driving of the 2nd respondent rider and denied involvement of Vehicle since there is 56 days delay in FIR and denied the age and income of the deceased and denied the injuries of 1st Respondent. 4.Before the Tribunal, the second respondent examined as PW1 and one Doctor K.J.Mathizhagan examined as PW2 and marked 14 Documents as Exs.P1 to P14. On behalf of Appellant one Elango Administrative Records in charge examined as RW1 and Police witness examined as RW2 and one document marked. 5.

The tribunal considering the pleadings, oral and documentary evidence and accepting the evidence of PW1 and PW2 came to the conclusion that the accident occurred only due to rash and negligent driving of the rider of the 2nd Respondent and Vehicle was insured with the appellant and reject the contention of appellant /insurance company deny the involvement of vehicle since there is 56 days delay in FIR on the basis of Documentary Evidence Ex.

liable to pay Compensation. The tribunal fixed the age of the 1st Respondent as 54 years on the basis of available Records and the tribunal fixed the income of the 1st Respondent as Rs.6500/- per month since the 1st respondent /claimant not filed any solid proof prove the income of the 1st Respondent. The 1st Respondent /Claimant sustained fracture in Right leg and surgery was done took treatment in Padmini Nursing Home, Chetpet, Chennai and inpatient from 4.12.2009 to 6.12.2009 and to prove the injuries sustained by 1st Respondent/Claimant one Doctor was examined and he assessed Disability 35% and the same reduced by 30% by tribunal and awarded total compensation of Rs.2,95,000/- with 7.5% interest as under:

Award by Tribunal ---------------------------------------------------------------- --------- Sl.No.

Particulars Amount ---------------------------------------------------------------- ---------

1. Compensation for Disability 30% X 3000 = Rs.90,000/- 2.

Pain and Suffering Rs.25,000/- 3.

Loss of income Rs.19,500/- 4.

Transport Rs. 3,000/- 5.

Extra-Nourishment Rs.20,000/- 6.

Damage to Clothes Rs. 3,000/- 7.

Medical Expenses Rs.84,500/- 8.

Future Medical Expenses Rs.50,000/- ------------- TOTAL Rs.2,95,000/- ------------- 6.Against the said award dated 08.12.2016 made in M.A.C.T.O.P.No.2287 of 2010, the present Civil Miscellaneous appeal prepared by the appellant.

7.The learned counsel for the appellant contended that the accident not happened due to rash and negligent driving of the 2nd respondent rider and denied involvement of Vehicle since there is 56 days delay in FIR and FIR closed as Undetectable and denied the age and income of the 1st Respondent and denied the injuries of 1st Respondent. The learned counsel for appellant further contended that disability 30% fixed by the tribunal is

high and contented that the award of tribunal various heads very high.

8.The learned counsel for the 1st respondent submitted that the evidence of PW1 clearly shows the accident occurred only due to rash and negligent driving of the rider of the 2nd respondent and Vehicle was insured with the appellant and Documentary Evidence Ex.P2 (Discharge summary) the same proved while travelling as pillion rider in 2nd Respondent vehicle he sustained injury and as per the same he immediately admitted after the accident and it shows while travelling as pillion rider in the 2nd respondent vehicle he sustained injuries since 1st Respondent M/C hit median of the Road, hence the appellant and 2nd Respondent are liable to pay Compensation and reject the contention of appellant /insurance company about the denial of the involvement of vehicle since there is 56 days delay in FIR.

The learned counsel for the 1st Respondent contended that when 2nd Respondent exparte its shows the 2nd respondent vehicle involved in the accident. On the basis of Documentary Evidence Ex.P2 (Discharge summary) the same prove while travelling as pillion rider in 2nd Respondent vehicle he sustained injury and as per the same he immediately admitted in the hospital, hence the appellant and the 2nd Respondent are liable to pay Compensation. The tribunal rightly awarded total compensation of Rs.2,95,000/- with 7.5% interest considering the above all heads. The tribunal considered all the materials is proper perspective and awarded proper compensation and prayed for dismissal of the above Civil Miscellaneous Appeal. 9.Heard the learned counsel for the appellant as well as the 1st Respondent and perused the materials available on record. 10.

As far as negligence concern, I find this accident happened due to the rash and negligent driving of the 2nd respondent vehicle because 1st Respondent (PW1) is best person to speak the accident he clearly says the accident happened rash and negligent driving of 1st Respondent Vehicle and the same corroborated by FIR and Discharge summary and regards the same no contra evidence of appellant. As far as 56 days Delay in FIR concern the reason for delay is acceptable because the 1st Respondent /claimant took nearly one month treatment in the hospital and since he incurred medical expenses nearly Rs.85,000/- and the 2nd Respondent who is the friend of the claimant has given the complaint and registered F.I.R. as delay one.

am not interfere with the award passed by the Tribunal finding in this regard.

11.I find the tribunal awarded various claims under all heads is correct and reasonable considering the 1st Respondent/Claimant grievous injuries, treatment period and Doctor Evidence, hence, I am not interfere with tribunal awards all heads regards quantum of compensation. I find no merits in this appeal. The award dated 08.12.2016 made in M.A.C.T.O.P.NO.2287 of 2010 on the file of Motor Accident Claims Tribunal, in the Court of Small Causes, Chennai, is confirmed. 12.In the result, the above Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. The learned counsel for the appellant is directed to deposit the award amount along with interest, if not already deposited, within six weeks from the date of receipt of a copy of this order.

On such deposit, the 1st Respondent permitted to withdraw his above said award amount along with interest, after adjusting the amount already withdrawn if any. Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar vs To 1.TheMotor Accidents Claims Tribunal, (Special Sub-Judge, Court of Small Causes), Chennai. 2.The Section Officer, V.R.Section, High Court, Madras.

+1 cc to Mr.G.Udayasankar, Advocate, Sr.No. 23895 +1 cc to Mr.K.Varadha Kamaraj, Advocate, Sr.No. 23909 Judgment made in C.M.A.No.1350 of 2017 and C.M.P.No.7127 of 2017 NMI(CO) CSL/10.06.2019