Madras High Court
Kalaiselvan vs Y.Josaph Paladurai on 20 July, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.2893 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.07.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.2893 of 2021
Kalaiselvan .. Appellant
Vs.
1.Y.Josaph Paladurai
2.The United India Insurance Company Ltd.,
Divisional Office, No.2, Dr.Sankaran Road,
Namakkal Town & District,
Pin – 637 001. .. Respondent
(R1 remained exparte before the Tribunal.
Hence, notice to R1 dispensed with)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
25.10.2019, made in M.C.O.P.No.64 of 2019, on the file of the Motor
Accident Claims Tribunal, Chief Judicial Magistrate's Court, Namakkal.
For Appellant : Mr.M.Lokesh
for Mr.Ma.P.Thangavel
For R2 : Mr.D.Bhaskaran
https://www.mhc.tn.gov.in/judis
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C.M.A.No.2893 of 2021
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.) This Civil Miscellaneous Appeal has been filed by the appellant- claimant challenging the 35% contributory negligence fixed on him and for enhancement of compensation granted by the Tribunal in the award dated 25.10.2019, made in M.C.O.P.No.64 of 2019, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court, Namakkal.
2.Originally the appellant filed the claim petition in M.C.O.P.No.1345 of 2017 before the Motor Accident Claims Tribunal, Principal District Court, Namakkal. Thereafter, the said M.C.O.P.No.1345 of 2017 was transferred to the Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court, Namakkal and re-numbered as M.C.O.P.No.64 of 2019.
3.The appellant is the claimant in M.C.O.P.No.64 of 2019, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court, Namakkal. He filed the said claim petition claiming a sum of Rs.20,00,000/- as compensation for the injuries sustained by him in the accident that took place on 25.06.2017.
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4.According to appellant, on 25.06.2017 at about 06.30 P.M., while he was travelling as pillion rider in the motorcycle bearing Registration No.TN 90 A 0961 on the left hand side of the Kondalampatty Roundana – Sangagiri Main Road near Kondalampatty Vegetable Market bus stop, the driver of the Omni car bearing Registration No.TN 30 A 9678 who was driving the same without following any traffic rules behind the motorcycle in which the appellant was travelling as pillion rider, drove the Omni car in a rash and negligent manner and dashed on the motorcycle and caused the accident. In the accident, the appellant sustained multiple grievous injuries all over the body and immediately after the accident, he was taken to Government Hospital, Salem, where he was given first aid treatment for three days. Thereafter, the appellant was shifted to Ganga Hospital, Coimbatore, where he was treated as inpatient for 17 days from 28.06.2017 to 14.07.2017. Therefore, the appellant filed the said claim petition against the respondents, being the owner and insurer of the Omni car respectively.
5.The 1st respondent – owner of the Omni car remained exparte before the Tribunal.
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6.The 2nd respondent – Insurance Company, being the insurer of the Omni car filed counter statement and denied all the averments made by the appellant in the claim petition. The 2nd respondent denied the manner of accident as alleged by the appellant. At the time of accident, one Baskaran drove the motorcycle and along with appellant, one Santhoshkumar also traveled in the motorcycle as pillion rider. Further at the time of accident, the rider of the motorcycle was not possessing valid driving license to ride the motorcycle. According to 2nd respondent, at the time of accident, the driver of the Omni car was driving the same carefully and diligently behind the motorcycle in which the appellant was travelling as pillion rider. The rider of the motorcycle bearing Registration No.TN 90 A 0961 only drove the same in a rash and negligent manner and attempted to cross the main road. Due to three persons travelling in the motorcycle, he could not control the motorcycle and dashed against the car and invited the accident. Therefore, the driver of the Omni car was not responsible for the accident and hence, the 2nd respondent is not liable to pay any compensation to the appellant. The appellant ought to have impleaded the owner and insurer of the motorcycle. The appellant has to prove that the driver of the Omni car was possessing driving license to drive the car at the time of accident. As https://www.mhc.tn.gov.in/judis 4/19 C.M.A.No.2893 of 2021 per the investigation report of 2nd respondent, the rider of the motorcycle viz., Baskaran was not having driving license to ride the motorcycle and also the motorcycle was not insured at the time of accident. Further, he also drove the motorcycle with two pillion riders in violation of MV Act. Hence, the 2nd respondent is not liable to pay any compensation to the appellant. The 2nd respondent denied the age, avocation, income, nature of injuries, disability and medical expenses incurred by the appellant. 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 and 11 documents were marked as Exs.P1 to P11. The 2nd respondent examined its Assistant Manager viz., V.Palanisamy as R.W.1 and two documents were marked as Exs.R1 & R2. Medical Board Report of the appellant was marked as Ex.C1.
8.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the 1st respondent, driver of the Omni Car. Since, at the time of accident, three persons traveled in the motorcycle, the Tribunal fixed 20% https://www.mhc.tn.gov.in/judis 5/19 C.M.A.No.2893 of 2021 contributory negligence on the part of the rider of the motorcycle and 15% contributory negligence on the part of the appellant as he was not wearing helmet at the time of accident. The Tribunal fixed 65% negligence on the part of the driver of the Omni car, arrived at a sum of Rs.4,24,000/- as compensation and directed the 2nd respondent-Insurance Company to pay a sum of Rs.2,75,600/- being 65% of the award amount as compensation to the appellant.
9.Challenging the portion of the award fixing 35% contributory negligence on the part of the appellant and not being satisfied with the amounts awarded by the Tribunal, the appellant has come out with the present appeal.
10.The learned counsel appearing for the appellant contended that the Tribunal failed to consider the fact that the appellant proved that the accident occurred only due to the negligence on the part of the driver of the Omni car. The Tribunal, having held that the accident occurred only due to rash and negligent driving by the driver of the Omni car, erroneously fixed 35% negligence on the part of the appellant. Merely because three persons traveled in the two wheeler, contributory negligence https://www.mhc.tn.gov.in/judis 6/19 C.M.A.No.2893 of 2021 cannot be fixed on the part of the appellant. The said finding is contrary to the judgment of the Hon'ble Apex Court reported in (2020) 3 SCC 57, [Mohammed Siddique and another Vs. National Insurance Company Limited and others]. The appellant was aged 19 years and he is a Manual Worker working in Steel Furniture and was earning a sum of Rs.15,000/- per month at the time of accident. The Tribunal erroneously fixed a meagre sum of Rs.9,000/- as monthly income of the appellant. Due to the injuries, the appellant suffered loss of earning capacity and he is unable to do his work as he was doing earlier. The Tribunal ought to have adopted multiplier method and granted compensation for loss of earning capacity. The appellant has taken treatment in the Ganga Hospital, Coimbatore as inpatient from 28.06.2017 to 14.07.2017 and from 07.08.2017 to 10.08.2017 totally for 21 days. The Tribunal failed to grant any compensation for attendant charges. The amounts awarded by the Tribunal under other heads are meagre and prayed for setting aside the portion of the award fixing 35% contributory negligence on the part of the appellant and for enhancement of compensation.
11.The learned counsel appearing for the 2nd respondent-Insurance https://www.mhc.tn.gov.in/judis 7/19 C.M.A.No.2893 of 2021 Company submitted that at the time of accident, three persons traveled in the two wheeler. The rider of the two wheeler, viz., Baskaran unable to control the motorcycle while crossing the main road, dashed on the Omni car and caused the accident. The rider of the motorcycle was solely responsible for the accident. In any event, the rider of the motorcycle also contributed to the accident. The Tribunal considering the judgment of this Court, rightly fixed 20% contributory negligence on the part of the appellant as three persons travelled in the motorcycle at the time of accident. Further, at the time of accident, the appellant did not wear helmet and therefore 15% contributory negligence fixed on the part of the appellant is in order. The appellant has not proved that he suffered functional disability and lost his earning capacity and therefore, he is not entitled to compensation by adopting multiplier method. The appellant failed to prove his avocation and income. In the absence of material evidence with regard to avocation and income, a sum of Rs.9,000/- fixed by the Tribunal as monthly income of the appellant is valid. The appellant is not entitled to any 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 respondent-Insurance Company https://www.mhc.tn.gov.in/judis 8/19 C.M.A.No.2893 of 2021 and perused the entire materials on record.
13.From the materials on record, it is seen that based on the evidence of appellant as P.W.1 and Ex.P1 / F.I.R., which was registered against the driver of the Omni car and in the absence of any contra evidence let in by the 2nd respondent-Insurance Company to the evidence of P.W.1, the Tribunal has fixed negligence on the part of the driver of the Omni car by giving valid reasons. But, the Tribunal after holding that the accident occurred due to rash and negligent driving by the driver of the Omni car, fixed 20% contributory negligence on the part of the appellant on the ground that three persons traveled in the two wheeler by relying on the judgment of this Court reported in 2010 ACJ 1316, [National Insurance Company Limited and others Vs. S.Chitra and others]. In the judgment of the Hon'ble Apex Court reported in (2020) 3 SCC 57, [Mohammed Siddique and another Vs. National Insurance Company Limited and others], relied on by the learned counsel appearing for the appellant, the Hon'ble Apex Court has held that it has to be proved that rider of the two wheeler contributed to the accident inspite of three persons travelling in the two wheeler. The relevant portion of the said judgment is extracted hereunder:
https://www.mhc.tn.gov.in/judis 9/19 C.M.A.No.2893 of 2021 “12.But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two-wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained https://www.mhc.tn.gov.in/judis 10/19 C.M.A.No.2893 of 2021 could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW-3 to the effect that 2 persons on the pillion added to the imbalance. https://www.mhc.tn.gov.in/judis 11/19 C.M.A.No.2893 of 2021
13. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased 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. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.” 13(i).In the present case, the 2nd respondent-Insurance Company did not examine the driver of the Omni car or any independent eyewitness to prove that the accident has occurred due to travelling of three persons in the motorcycle at the time of accident. The 2nd respondent-Insurance Company examined only their official as R.W.1 and not disproved the evidence of P.W.1 and contents of F.I.R. The Tribunal considering the evidence of P.W.1 and F.I.R., held that the accident has occurred only due to rash and negligent driving by the driver of the Omni car.
13(ii).The fact and ratio in the judgment of the Hon'ble Apex Court referred to above are squarely applicable to the facts of the present case. https://www.mhc.tn.gov.in/judis 12/19 C.M.A.No.2893 of 2021 In view of the same, 20% contributory negligence fixed on the part of the appellant is liable to be set aside and it is hereby set aside.
13(iii).It is an admitted fact that at the time of accident, the appellant was not wearing helmet. This Court has held that when the riders in the two wheeler did not wear helmet, contributory negligence has to be fixed on them and therefore, there is no error in the award of the Tribunal fixing 15% contributory negligence on the part of the appellant for not wearing helmet at the time of accident.
14.As far as quantum of compensation is concerned, it is the case of the appellant that in the accident he sustained Type III B open fracture medial humeral condyle with skin and soft tissue loss post debriment, K- wire stabilization and elbow spanning exfix with extensive raw area from proximal arm to distal forearm with critical defect over elbow with degloved skin over forearm-left upper limb. The Medical Board examined the appellant and certified that the appellant suffered 40% disability and issued disability certificate marked as Ex.C1 to that effect. No contra evidence was let in by the 2nd respondent to dispute Ex.C1. Considering the nature of injuries, nature of work done by the appellant, evidence of https://www.mhc.tn.gov.in/judis 13/19 C.M.A.No.2893 of 2021 appellant as P.W.1 and Ex.C1 – report issued by Medical Board, we are of the opinion that the appellant is entitled to compensation by adopting multiplier method. For arriving compensation towards loss of earning capacity by adopting multiplier method, 1/3rd of the percentage of disability assessed by Medical Board is fixed as loss of earning capacity of the appellant. Thus, the percentage of loss of earning capacity is fixed at 13.3% (1/3rd of 40%), rounded off to 14%.
15.It is the case of the appellant that at the time of accident, he was aged 19 years, a Manual Worker working in Steel Furniture and was earning a sum of Rs.15,000/- per month. He did not file any document to prove his avocation and income. In the absence of any documentary evidence to prove the avocation and income, the Tribunal fixed notional income of the appellant at Rs.9,000/- per month and granted a sum of Rs.36,000/- towards loss of income for four months. Further, the Tribunal has adopted percentage method for granting compensation towards disability and awarded a sum of Rs.1,20,000/- for 40% of disability at the rate of Rs.3,000/- per percentage of disability. The appellant is entitled to compensation by adopting multiplier method. Hence, both the amounts awarded by the Tribunal towards disability and loss of income are liable to https://www.mhc.tn.gov.in/judis 14/19 C.M.A.No.2893 of 2021 be set aside and they are hereby set aside. The accident is of the year 2017 and the notional income fixed by the Tribunal is not meagre. The appellant was aged 19 years at the time of accident. He is entitled to 40% enhancement towards future prospects as per the judgment of the Hon'ble Apex Court reported in 2017 (2) TNMAC 609 (SC), [National Insurance Company Limited Vs. Pranay Sethi and others]. The multiplier applicable is '18' as per the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme Court, [Sarla Verma & others Vs. Delhi Transport Corporation & another]. Thus, by fixing the monthly income as Rs.9,000/-, granting 40% enhancement towards future prospects and applying multiplier '18', the compensation towards loss of earning capacity is arrived at Rs.3,81,024/- {[Rs.9,000/- + Rs.3,600/- (40% of Rs.9,000/-)] X 12 X 18 X 14/100}.
16.From the materials available on record, it is seen that the appellant has taken treatment in the Ganga Hospital, Coimbatore as inpatient from 28.06.2017 to 14.07.2017 and from 07.08.2017 to 10.08.2017 totally for 21 days. The Tribunal has not granted any amount towards attendant charges. Considering the period of treatment taken by the appellant, he is entitled to a sum of Rs.20,000/- towards attendant https://www.mhc.tn.gov.in/judis 15/19 C.M.A.No.2893 of 2021 charges. Considering the nature of injuries and period of treatment taken by the appellant, the amounts awarded by the Tribunal towards transportation, extra nourishment are enhanced to Rs.15,000/- and Rs.20,000/- respectively as the amounts awarded by the Tribunal are meagre. The Tribunal has not awarded any amount towards damages to clothes. The appellant is entitled to a sum of Rs.1,000/- towards damages to clothes. The amounts awarded by the Tribunal under other heads are just and reasonable and hence, they are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Disability 1,20,000/- - Set aside
2. Loss of income 36,000/- - Set aside
3. Loss of earning capacity - 3,81,024/- Granted
4. Pain and sufferings 60,000/- 60,000/- Confirmed
5. Medical expenses 1,95,500/- 1,95,500/- Confirmed
6. Attendant charges - 20,000/- Granted
7. Extra nourishment 5,000/- 20,000/- Enhanced
8. Transportation 7,500/- 15,000/- Enhanced
9. Damages to clothes - 1,000/- Granted
Total Rs.4,24,000/- Rs.6,92,524/- Enhanced by
rounded off to Rs.3,13,050/-
Rs.6,92,530/-
[Rs.5,88,650/-
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65% of compensation Rs.2,75,600/- - -
85% of compensation - Rs.5,88,650.50 Rs.2,75,600/-]
rounded off to
Rs.5,88,650/-
17.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.2,75,600/- is hereby enhanced to Rs.5,88,650/- 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 the award amount, 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.64 of 2019, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court, Namakkal. On such deposit, the appellant is permitted to withdraw the award amount, now determined by this Court, along with interest and costs, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. The appellant is directed to pay the necessary court fee on the enhanced award amount as per the order of this Court dated 11.08.2021, made in C.M.P.No.12164 of 2021 in C.M.A.No.SR.26041 of 2021. No costs.
https://www.mhc.tn.gov.in/judis 17/19 C.M.A.No.2893 of 2021 (V.M.V., J) (S.S., J) 20.07.2022 krk Index : Yes / No Internet : Yes / No To 1.The Chief Judicial Magistrate, Motor Accidents Claims Tribunal, Namakkal. 2.The Section Officer, VR Section, High Court, Madras. https://www.mhc.tn.gov.in/judis 18/19 C.M.A.No.2893 of 2021 V.M.VELUMANI, J. and S.SOUNTHAR, J. krk C.M.A.No.2893 of 2021 20.07.2022 https://www.mhc.tn.gov.in/judis 19/19