Prabhagaran, v. Moorthi,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.06.2023
CORAM
THE HON'BLE MRS.JUSTICE N.MALA Prabhagaran ... Appellant vs.
1.Moorthi 2.The Divisional Manager, M/s.National Insurance Co. Ltd., No.110, 2nd floor, J.N. Street, Pondicherry.
... Respondents Prayer:
Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to enhance the award amount dated 17.12.2020 made in MACTOP.No.566 of 2017 on the file of the Additional Motor Accidents Claims Tribunal, the Presiding Officer, Additional Motor Accidents Claims Tribunal, Puducherry.
For Appellant : Mr.T.Ananthasekar For R1 : No appearance For R2 : Mr.R.Rathnathara * * * * * 1/9
J U D G M E N T
This Civil Miscellaneous Appeal is filed to enhance the amount in the award dated 17.12.2020 made in MACTOP.No.566 of 2017 on the file of the Additional Motor Accidents Claims Tribunal, the Presiding Officer, Additional Motor Accidents Claims Tribunal, Puducherry. 2.On 21.04.2017 at about 04.15 p.m. while the claimant was walking from South to North direction at the Maraimalai Adigal Salai in front of KVJ Oil Center, Orleanpet, Pondicherry, the motor cycle belonging to the first respondent driven by its driver in a rash and negligent manner dashed against the claimant causing him grievous injuries. According to the claimant he was aged about 30 years at the time of the accident and as a Tinker was earning a sum of Rs.20,000/- per month. The claimant therefore filed the claim petition claiming Rs.12,50,000/- as compensation for the injuries sustained by him in the accident.
3.The first respondent owner of the vehicle remained exparte. The 2/9
claim petition was contested by the second respondent/Insurance Company. The second respondent denied all the allegations and averments made in the claim petition, apart from disputing the negligence, quantum and liability. 4.Before the Claims Tribunal, the claimant examined himself as PW1 and marked Ex.P1 to Ex.P8 in support of his claim. On the side of the respondents the Doctor who issued the disability certificate was examined as RW1 and no documents were marked. The Disability Certificate was marked as Ex.C1.
5.The Claims Tribunal on an assessment of the entire evidence on record found that the claimant had contributed to the accident and apportioned the negligence at 35% on the claimants and 65% on the rider of the two wheeler. The Tribunal assessed the compensation at Rs.2,55,000/-, deducted Rs.89,250/- towards the contributory negligence of the deceased, awarded Rs.1,65,750/- @ 7.5% interest and mulcted the liability on the second respondent/Insurance Company. Not satisfied with the award passed by the Tribunal, the claimant has preferred the above appeal challenging the 3/9
finding on negligence and also for enhancement of compensation. 6.It is submitted by the learned counsel for the appellant that the finding of the Tribunal on the issue of the contributory negligence is erroneous and that the Tribunal erred in deducting 35% towards contributory negligence. The learned counsel further submitted that the Doctor who was examine as RW1 deposed that the claimant had suffered head injury and loss of hearing and therefore the assessment of compensation towards partial permanent disability was erroneous. 7.The learned counsel appearing for the respondents on the other hand submitted that the finding on negligence was justified and further the award of the Tribunal was just, fair and reasonable and did not call for any interference in the appeal.
8.I have heard the learned counsel for the appellant and the learned counsel for the second respondent and have perused the materials on record. 4/9
9.It is seen that the Tribunal relied on the evidence of the claimant in cross examination wherein he stated @tpgj;J ehd; ele;J nuhl;il flf;Fk;nghJ ele;jjh vd;why; rhpjhd;@.
The Tribunal interpreted the said statement as if the claimant admitted his negligence and deducted 35% towards contributory negligence of the claimant. In my view, the interpretation of the Tribunal is erroneous. The claimant merely stated the fact that the accident occurred while he was crossing the road and never admitted his negligence. The Tribunal failed to note that in the absence of examination of the two wheeler rider, contributory negligence could not be imputed to the claimant. In my view the non-examination of the rider of the two wheeler is fatal to the case of the respondent. Therefore the finding of the Tribunal and the apportionment of negligence at 35% against the claimant is not sustainable. In my view, the order of Tribunal under other heads are just, fair and reasonable.
10.The learned counsel appearing for the appellant submitted that the claimant suffered loss of hearing and the same was also deposed by the Doctor, who was examined as RW1. The learned counsel therefore 5/9
submitted that considering the age of the claimant, the Tribunal ought to have awarded reasonable sum towards loss of amenities. I am of the view that the submission of the learned counsel is justified. The Doctor who had examined the petitioner had clearly deposed that the claimant suffered blood clotting and it would result in loss of hearing. In the light of the evidence of RW1, I am of the view that a sum of Rs.20,000/- may be awarded towards loss of amenities. In view of the above discussion, the award of the Tribunal is modified as follows: - SI.
No.
Heads Amount awarded by the Tribunal Amount awarded by this Court Partial Permanent Disability Rs.1,05,000/- Rs.1,05,000/- Pain & Suffering Rs. 70,000/- Rs. 70,000/- Extra nourishment Rs. 10,000/- Rs. 10,000/- Attender Charges Rs. 10,000/- Rs. 10,000/- Transportation Expenses Rs. 5,000/- Rs. 5,000/- Medical Expenses Rs. 15,000/- Rs. 15,000/- Loss of Income Rs. 40,000/- Rs. 40,000/- Loss of Amenities - Rs. 20,000/- TOTAL Rs.2,55,000/- Rs.2,75,000/- 11.The claimants shall be entitled for a sum of Rs.2,75,000/- along 6/9
with 7.5% interest. It is submitted by the learned counsel for the second respondent/Insurance company that the compensation awarded by the Tribunal along with the accrued interest and costs has already been deposited. In the light of the said submission, there shall be a direction to the second respondent/Insurance company to deposit the balance enhanced amount of Rs.20,000/- along with 7.5% interest, from the date of the claim petition till the date of realisation, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimant shall be entitled to withdraw the said amount by making proper application before the Tribunal.
12.In the result, this Civil Miscellaneous Appeal is partly allowed. There shall be no order as to costs.
20.06.2023 Index : yes/no Internet : yes/no ah To 1.The Additional Motor Accidents Claims Tribunal, The Presiding Officer, 7/9
Additional Motor Accidents Claims Tribunal, Puducherry.
2.The Section Officer, V.R.Section, High Court, Madras.
N.MALA, J.
ah 8/9
20.06.2023 9/9