Madras High Court
The Divisional Manager vs / on 9 March, 2021
Author: G.Jayachandran
Bench: G.Jayachandran
C.M.A.Nos.1019, 2123, 2124 of 2018
and C.M.P.Nos.8281, 16523 & 16524 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 04.03.2021 Pronounced on : 09.03.2021
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.Nos.1019, 2123, 2124 of 2018
& C.M.P.Nos.8281, 16523 & 16524 of 2018
The Divisional Manager,
New India Assurance Company Ltd.,
CSI Building, 2nd Floor, No.1,
Officer's Line, Near Ooris College,
Vellore District. ... Appellant
in all cases
/versus/
1. Karthikeyan,
2. Ramakrishnan,
3. R.Damodharan, ... Respondents
in C.M.A.No.1019 of 2018
1. Damodharan,
2. Ramakrishnan, ... Respondents
in C.M.A.No.2123 of 2018
1. Amutha,
2. Ramakrishnan,
3. R.Damodharan, ... Respondents
in C.M.A.No.2124 of 2018
1/17
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1019, 2123, 2124 of 2018
and C.M.P.Nos.8281, 16523 & 16524 of 2018
Prayer in C.M.A.No.1019 of 2018: Civil Miscellaneous Appeal has been filed
under Section 173 of the Motor Vehicles Act, 1988, against the judgment and
decree in M.C.O.P.No.247 of 2015, dated 24.04.2017 on the file of the Motor
Accidents Claims Tribunal (Special Subordinate Judge), at Tiruvannamalai.
Prayer in C.M.A.No.2123 of 2018: Civil Miscellaneous Appeal has been filed
under Section 173 of the Motor Vehicles Act, 1988, against the judgment and
decree in M.C.O.P.No.243 of 2015, dated 24.04.2017 on the file of the Motor
Accidents Claims Tribunal (Special Subordinate Judge), at Tiruvannamalai.
Prayer in C.M.A.No.2124 of 2018: Civil Miscellaneous Appeal has been filed
under Section 173 of the Motor Vehicles Act, 1988, against the judgment and
decree in M.C.O.P.No.244 of 2015, dated 24.04.2017 on the file of the Motor
Accidents Claims Tribunal (Special Subordinate Judge), at Tiruvannamalai.
For Appellant : Mr.J.Chandran
in all cases
For R1 & R3 : Mr.B.Jawahar
in C.M.A.Nos.1019
& 2124 of 2018
For R1 : Mr.B.Jawahar
in C.M.A.No.2123 of 2017
2/17
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1019, 2123, 2124 of 2018
and C.M.P.Nos.8281, 16523 & 16524 of 2018
COMMON JUDGMENT
The three Civil Miscellaneous Appeals under consideration are preferred by the Insurance Company against the award passed by the Tribunal in the joint trial of M.C.O.P Nos.243, 244 and 247 of 2015. In these appeals, the award is assailed both on liability as well as the quantum of compensation fixed by the tribunal.
2. The brief facts of the case:-
On 21.06.2014, at about 2.50 p.m, on the Polur-Chengam Main Road, near Pudur Mariamman Koil, a Maruti Esteem car bearing registration No. KA-03- P-5866 proceeding from Bangalore towards Thiruvannamalai and a Tata Indica car bearing registration No TN-25-K-9898 proceedings from Thiruvannamalai to Chengam dashed against each other. The occupants in both the vehicles sustained injuries. The first information was recorded based on the statement given by Ramakrishnan, the driver-cum-owner of the Tata Indica car, when he was at the hospital taking treatment for his injuries.
3/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018
3. The F.I.R marked as Ex.P-1, states that, when the defacto complainant Ramakrishnan was returning from Thirvannamalai along with his wife to his home at Chengam in his Tata India car, the driver of the Maruti Esteem coming from the opposite direction rash and negligently dashed on the left side of his car. In the accident, he and his wife sustained injuries and taken to Chengam Government Hospital for treatment. Based on his statement, attributing rash and negligence against the Maruti Esteem car driver, a case was registered against the driver of the Maruti Esteem car for offences under Sections 279 and 337 of I.P.C under Crime No.119/2014.
4. The claimants are the driver and occupants of the Maruti Esteem car bearing registration No.KA-03-P-5866. For the injuries they sustained in the said accident, they preferred claim petition against the owner of the Tata Indica car and its insurer.
M.C.O.P.No.243 of 2015: by Dhamodaran, the owner-cum-driver of the Maruti Esteem car. Claiming a sum of Rs.20,00,000 as compensation.
M.C.O.P.No.244 of 2015: by Amudha W/o.Dhamodaran. Claiming a sum of Rs.20,00,000 as compensation.
4/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 M.C.O.P.No.247 of 2015: by Karthikeyan S/o.Dhamodaran. Claiming a sum of Rs.10,00,000 as compensation.
5. In all these claim petitions, the claimants blamed rash and negligence of the Tata Indica driver, for the cause of accident. It is averred that, without giving horn, he drove the car haphazard and hit the maruti esteem car head on.
6. The Insurance Company contested the claim on the ground that, the driver of the Maruti car was the tort-feasor. The F.I.R was registered against him. The claimants have not produced the Insurance particulars of their vehicle. The compensation claimed is excessive and exorbitant. During the trial, they produced the private investigation report revealing that the Dhamodaran the driver of the Maruti car had no valid driving license and the car was not duly insured.
7. After trial, on considering the evidence placed before it, the Tribunal passed award as below for each of the claimants. 5/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 In M.C.O.P.No.243 of 2015:
Dhamodaran in his claim petition had stated that, he is 50 years old and was working as Manager in a Private Company and earning a sum of Rs.20,000/- per month at the time of accident. After accident, he left the job. To prove this, he has marked Ex.P.13, the relieving letter by one Patel Rail Cargo Company. The author of the certificate not examined. Therefore, the Court fixed his income notionally at Rs.7,000/-pm. Regarding injuries he sustained, the Medical Board examined him and issued disability certificate Ex.C-3, that he sustained 40% disability due to the fracture and dislocation of left hip with comminuted fracture of posterior column and wall of left Acetbulim. He had taken treatment at M.I.O.T Hospital and the medical bills were marked as Ex.P.12 The Tribunal, after considering the medical record applied multiplier method and awarded a sum of Rs.10,67,000/- under the following heads:-
Sl. Heads Amount of
Rs.
Nos.
1. Loss of Future Earnings 4,68,000/-
2. Pain and sufferings 50,000/-
3. Medical Expenses 5,44,000/-
4. Extra Nourishment 5,000/-
Total Rs.10,67,000/-
6/17
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1019, 2123, 2124 of 2018
and C.M.P.Nos.8281, 16523 & 16524 of 2018
In M.C.O.P.No.244 of 2015:
The claimant Amutha in her claim petition had stated that she is 42 years old. At the time of accident, she was working in a Private Company as Assistant and earning Rs.11,000/- per month, but no evidence was placed before Tribunal to prove her income. The Medical Board assessed the disability as 30% and given the disability certificate marked as Ex.C-2. She had produced medical bills Ex.P-9, to show that she had spent Rs.1,33,520/- . The Tribunal, on considering the evidence had awarded Rs.2,79,000/- under the following heads:-
Sl.Nos. Heads Amount Rs.
1. Disability (30%) 90,000/-
2. Medical Expenses 1,34,000/-
3. Pain and Sufferings 35,000/-
4. Loss of earning during treatment 10,000/-
period
5. Extra Nourishment 10,000/-
Total Rs.2,79,000/-
In M.C.O.P.No.247 of 2015:
The claimant Karthikeyan in his claim petition had stated that at the time of accident he was 23 years. He was employed as a clerk in a Company earning Rs.11,000/- per month. In the accident, he sustained lacerated injury over 7/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 upper and lower lip. Lacerated injuries on left leg. Multiple abrasions over forehead and cheek. The discharge summary given by M.I.O.T hospital, which was marked as Ex.P-4, the fracture shaft of femur at the left leg mentioned. The Medical Board opined that there is no functional disability and fixed the disability at 20%. The Tribunal taking note of the medical expenses as found in Ex.P-5, awarded a sum of Rs.3,21,000/- under different heads mentioned below.
Sl.Nos. Heads Amount Rs.
1. Disability (20%) 60,000/-
2. Medical Expenses 2,17,000/-
3. Pain and Sufferings 25,000/-
4. Loss of earning during treatment 14,000/-
period
5. Extra Nourishment 5,000/-
Total Rs.3,21,000/-
8. In all these appeals, the Insurance Company has assailed the award of the Tribunal on the ground that, the tribunal erred in neglecting the content of F.I.R, which attributes negligence on the part of the Maruti Esteem car driver. The evidence of P.W-4 is not worthy of reliance. His presence at the scene of occurrence is improbable. The Maruti car driver had no valid driving license. The 8/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 Maruti car was not insured. Even according to the claimants, it was a head on collusion. While so, the tribunal unreasonably refused to consider the F.I.R and erroneously held that, it is a false complaint, since it was given by the driver of the Tata Indica car taking advantage of the fact, the occupants of the Maruti car were taken to M.I.O.T. hospital for treatment. The Tribunal failed to look into the investigation report Ex.R-1, because, the author of the report was not examined.
Further, in case of the claim petition filed by Dhamodaran, the learned counsel for the appellant assailed the tribunal award for applying multiplier method, when the medical board has not stated any functional disability.
9. Per contra, the Learned Counsel appearing for the claimants/respondents submitted that the case registered against the driver of the Maruti car was closed without any investigation, after the limitation period. This fact has been deposed by R.W-2, the Inspector of Police attached to the concern police station. The defacto complainant Ramakrishnan who gave the F.I.R not examined by the Insurance Company. Therefore, the award of the tribunal has to be confirmed.
10. Heard the Learned Counsel on both sides. Records perused. 9/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018
11. C.M.A.No.1019 of 2018 is against M.C.O.P.No.247 of 2015 filed by Karthikeyan, C.M.A.No.2123 of 2015 is against M.C.O.P.No.243 of 2015 filed by Dhamodaran and C.M.A.No.2124 of 2018 is against M.C.O.P.No.244 of 2015 filed by Amudha. The claimants are all members of one family. Son, father and mother. Though the quantum of compensation also challenged, except the award in M.C.O.P.No.243 of 2015 filed by Dhamodaran, where the multiplier method applied and a sum of Rs.10,67,000/- awarded. The appellants have no serious point to urge in other two cases in so far the quantum. However, regarding the liability, the learned counsel for the appellant reading the F.I.R Ex.P-1, Investigation Report Ex.R-1, the claim petitions where the claimants admits the accident occurred due to head on collusion, the deposition of P.W-4 and the Motor Vehicle Inspector report Ex.P-2 submitted that, for the cause of accident, the Maruti car driver had contributed. If not the sole tort-feasor, he is certainly a joint tort-feasor. Therefore, he is not entitled for any compensation.
12. This Court, on considering the F.I.R., Ex.P-1 and the evidence of 10/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 P.W-4 who claims to be an eyewitness to the accident and the Motor Vehicle Inspector Report Ex.P-2, find that, without the contributory negligence of the Maruti car driver, the accident could not have occurred. It is clearly seen from the Motor Vehicle Inspector report, who has inspected the Tata Indica car that the accident occurred due to head on collusion of two motor vehicles. The Motor Vehicle Inspector report marked Ex.P-2, reads as below:-
“Front windscreen glass broken. Radiator, water pump, A/c conditioner damaged. Front bumper and grill damaged. Engine bonnet damaged. Front axle suspension damaged. Front left side headlight, indicator light broken, Streeing wheel and rod damaged both sides doors damaged.”
13. Unless, it is the head on collusion, the extensive damage on the front of the Indica car could not have happened. The report clearly indicates that the front portion of the Tata Indica car extensively damaged. The driver of the Tata Indica car though given complaint against the Maruti Car driver alleging complete negligence against the Maruti car driver and contrarily P.W.1 to P.W.3 who are the claimants and occupants of the Maruti Car had deposed a diagonally 11/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 opposite version, all being interested witnesses one way or other, their evidence cannot be wholly reliable. P.W-4 also cannot be relied and believed to have been present at the scene of accident, because his evidence is contrary to damages found in the Tata Indica car which is a tell-tale evidence, show it is the head on collusion. It is also relevant to note that in the claim petitions itself, the claimants have uniformly stated that, it was a head on collusion.
14. Therefore, there is no doubt to hold the Tribunal finding regarding the negligence is not in tune with the facts. The Tribunal, contrary to Ex.P-1, Ex.P-5 and the own admission of the claimants, had fixed the entire negligence on the part of the Tata Indica car driver, when very strangely in this case, the Motor Vehicle Inspector's report and the Insurance cover of the Maruti car were not produced. The driver of the Maruti car one of the witness as a claimant has not produced his car driving license is also a relevant fact failed to be taken note by the Tribunal. Because the maruti car was not insured, the claimants in M.C.O.P.No.244 of 2015 and M.C.O.P.No.247 of 2015 have impleaded only the owner of the Maruti car Dhamodaran as 3rd respondent. 12/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018
15. Dhamodaran is the owner cum driver of the Maruti esteem car. He is the claimant in M.C.O.P.No.243 of 2015. He had deposed before the Tribunal as P.W-3. In his deposition, he say his car is still in police station. It was taken for inspection. He has not filed the Motor Vehicle Inspector's report, since it was not subjected to Motor Vehicle inspection. He possesses driving license, but not produced before the Court. He did not give any complaint to the police about the accident. It is thus evident that, the Maruti esteem car was not insured. The driver of the Maruti car at the time of accident had no valid driving license. The accident occurred due to head on collusion and not solely due to the negligence of the Tata Indica driver.
16. These conclusive evidence, establishes composite negligence involving two motor vehicles. The claimants cannot fix the entire liability on the driver of the Tata Indica. The driver of the Maruti Esteem also equally responsible for the accident. Therefore, the damages payable has to be shared equally by the owner of both vehicles. In this case, one vehicle (Maruti car) owned by one of the claimant (Dhamodaran). The other claimants are none other than his wife and son. Therefore, the claimants are entitled to get only 50% compensation from the other 13/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 vehicle owner and the Insurance Company, which is the appellant herein. It is sufficient to indemnify the 1/2th award amount as mentioned and the other half to be paid by the owner of the Maruti esteem.
17. As a result, the Civil Miscellaneous Appeals are partly allowed. The quantum of compensation awarded in all these cases is confirmed. The liability to pay by the appellant is altered as below:-
In M.C.O.P.No.243/2015: The Appellant is directed to pay Rs.5,33,500/- (50% of the award amount) with 7.5% from the date of petition till the date of deposit. The claimant/Dhamodaran in this case is the joint tort-feasor and also the owner of the offending vehicle. Hence, he cannot make claim against himself. So far the balance 50%, he has to forgo for his own contributory negligence.
In M.C.O.P.No.244 of 2015: The Appellant is directed to pay Rs.1,39,500/- (50% of the award amount) with 7.5% from the date of petition till 14/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 the date of deposit. The balance 50% she is entitled to recover from the owner of the Maruti car, the third respondent in the claim petition, if she chooses.
In M.C.O.P.No.247 of 2015: The Appellant is directed to pay Rs.1,60,500/- (50% of the award amount) with 7.5% from the date of petition till the date of deposit. The balance 50% he is entitled to recover from owner of the Maruti car, the third respondent in the claim petition, if he so chooses.
18. The learned counsel for the appellant state that as per the order of this Court in the Interlocutory petitions, the Insurance Company has already deposited 50% of the award amount with interest in the respective M.C.O.P accounts. If so, the claimants are permitted to withdraw the same on appropriate application. If any amount yet to be paid, the same shall be deposited within a period of eight weeks from the date of receipt of the order copy.
19. Accordingly, the Civil Miscellaneous Appeal Nos.1019, 2123, 2124 of 2018 are Partly Allowed. Consequently, the connected miscellaneous 15/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 petitions are also closed. No order as to costs.
09.03.2021
Index : Yes
bsm
To,
1.The Motor Accidents Claims Tribunal (Special Subordinate Judge), at Tiruvannamalai.
2.The Section Officer, V.R.Section, High Court, Madras. 16/17 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 Dr.G.Jayachandran,J.
bsm Pre-delivery Common Judgment in C.M.A.Nos.1019, 2123, 2124 of 2018 and C.M.P.Nos.8281, 16523 & 16524 of 2018 09.03.2021 17/17 https://www.mhc.tn.gov.in/judis/