Palani v. K.Vignesh

JUDGMENT The claimant not being satisfied with the quantum of compensation fixed by the Tribunal and also attributing 15% contributory negligence, has filed this appeal challenging the award passed in M.C.O.P.No.1384 of 2019 dated 26.10.2022 on the file of the Motor Accident Claims Tribunal,Special Subordinate Judge No.2, Salem.

¶2The case of the claimant is that on 28.02.2019, when he was travelling in his two wheeler at Perumbanai – Samathal road and when the two wheeler was approaching a cross road near Kombaliyur at about

6.30 p.m, the offending vehicle belonging to the 1st respondent was driven in a rash and negligent manner and the same dashed on the two wheeler. As a result of which, the claimant was thrown away from the two wheeler and he sustained the following injuries :-

¶1Closed fracture left shaft of femur and ulna

¶2Type I open fracture both bone left leg

¶3Abdominal injury with splenic laceration / ileal perforation.

¶4Head injury – scalp haematoma

¶5Right inferior public rami facture

¶3The claimant under went treatment for nearly 27 days and almost five surgeries were performed. The injuries were so severe that a portion of his intestine was removed. It is under these circumstances, the claim petition came to be filed before the Tribunal seeking for payment of compensation.

¶4The Tribunal on considering the facts and circumstances of the case and on appreciation of evidence came to a conclusion that the accident had taken place only due to the rash and negligent driver of the offending vehicle. To arrive at such a conclusion, the Tribunal took into consideration the evidence of PW1 and also the FIR, which was marked as Ex.P1 and the final report, which was marked as Ex.P10. Having rendered such a finding, the Tribunal proceeded to attribute 15% contributory negligence against the claimant on the ground that the claimant did not posses a valid driving license.

¶5The Tribunal thereafter fixed the total compensation at Rs.10,01,311/- under various heads in the following manner :- Sl. No. Compensation awarded under the head Amount (in Rs.)

¶1kDjhuUf;F Vw;gl;l epue;jpu Cdj;jpw;fhf (30% x Rs.5000) Rs.1,50,000/-

¶2kDjhuUf;F Vw;gl;l typ kw;Wk; ntjidfSf;fhf Rs.30,000/-

¶3kDjhuUf;F Vw;gl;Ls;s thH;f;if trjp ,Hg;g[f;fhf kDjhujpd; tapw;wpy; brupkhd gFjpapy; cs;s Flypy; xU gFjp ePf;fg;gl;L braw;f;if gpsh!;of; Fly; itf;fg;gl;Ls;sjhy; cztpd; mst[ vLj;Jf;bfhs;tjpy; mJ brupkhdk; MtjpYk; kDjhuUf;F ,lu;ghLfs; cs;sjhft[k; kw;Wk; kDjhujpd; fhy; gFjp clYld; ,iza[k; cy;dh vYk;g[ gFjp (DCP ulna left) rpfpr;irf;F gpwFk; rupahf Rltpy;iy vd;Wk;/ k/rh/M 3 kUj;Jt tpLtpg;g[ Mtzj;jpd; mog;gilapy; kDjhuh; jug;gpy; Kd; itf;fgl;l thjj;jpid Vw;W. Rs.50,000/-

¶4kDjhuUf;F

Vw;gl;l

kUj;Jt brytpd';fSf;fhf k/rh/M 5 y; fz;lthW Rs.6,40,311/-

¶5kDjhuUf;F rpfpr;irapd; nghJk; Xa;tpd; Rs.50,000/- Sl. No. Compensation awarded under the head Amount (in Rs.) nghJk; Vw;gl;l tUkhd ,Hg;g[f;fhf (Rs.10,000/- x 5 khj';fs;)

¶6kDjhuUf;F

Vw;gl;l

nghf;Ftuj;J brytpd';fSf;fhf Rs.25,000/-

¶7kdjhuupd; Cl;lr;rj;J brytpd';fSf;fhf Rs.25,000/-

¶8kdjhuh; cjtpahsh; itj;Jf;bfhz;ljw;F Vw;gl;l brytpd';fSf;fhf Rs.30,000/-

¶9kdjhuhpd;

cilfSf;F

Vw;gl;l nrj';fSf;fhf Rs.1,000/- bkhj;j ,Hg;gPl;Lj; bjhif Rs.10,01,311/- Out of the above compensation, 85% of the liability was fixed on the respondent/insurance company to the tune of Rs.8,51,115/- and the said amount was directed to be paid with interest at the rate of 7.5% per annum.

¶6The claimant not being satisfied with the quantum of compensation fixed by the Tribunal has filed the present appeal seeking for enhancement of compensation and for setting aside the contributory negligence attributed against the claimant.

¶7Heard Mr.R.Navaneetha Krishnan, learned counsel for appellant/claimant and M/s.R.Sreevidhya, learned counsel for second respondent insurance company.

¶8This Court carefully considered the submissions made on either side and the materials available on record.

¶9This Court also carefully went through the award passed by the Tribunal.

¶10The Tribunal on appreciating the evidence of PW1 and also the FIR and the final report, which was marked as Ex.P1 and Ex.P10, came to a categoric conclusion that the accident had taken place only due to the rash and negligent driving on the part of the offending vehicle. The Tribunal also gave a finding that the respondent did not take any steps to examine the driver of the offending vehicle and there was no contra evidence available and there was nothing to discredit the evidence of PW1 in this case.

¶11Having rendered the above finding, the Tribunal had fixed 15% contributory negligence against the claimant only on the ground that he did not possess a valid driving license.

¶12The Apex Court in [Dinesh Kumar Vs.National Insurance Company Limited and others] reported in 2018 1 SCC 750 has categorically held that driving a vehicle without a license by itself cannot lead to an assumption that there was negligence on the part of the driver of the vehicle. In other words, there must be independent evidence available to show that the driver of the vehicle had in fact contributed to some portion of the negligence as a result of which the accident had taken place. This view has been consistently taken in many cases. Therefore, the finding of the Tribunal attributing 15% contributory negligence against the rider of the two wheeler only on the ground that he did not possess a valid driving license cannot be sustained and accordingly, the same is hereby interfered and set-aside.

¶13The next issue pertains to the quantum of compensation that was fixed under various heads.

¶14In the instant case, the accident had taken place in the year 2019 and the Medical board on assessing the disability suffered by the claimant has come to a conclusion that the claimant had suffered 30% permanent disability. The Tribunal has only fixed Rs.5,000/- per percentage. However, as per the judgement of the Division Bench in CMA No.3334 of 2021 dated 15.06.2022, Rs.7,000/- has to be fixed per percentage and hence, the compensation under the head of permanent disability is fixed at 30% x 7000 = Rs.2,10,000/-.

¶15The claimant had suffered serious injuries and was taking treatment as an in patient for nearly a month and he had also undergone five surgeries and in view of the same, this Court is inclined to enhance the compensation under the head of pain and sufferings to Rs.50,000/-.

¶16Insofar as the loss of income is concerned, the Tribunal has taken the notional monthly income only at Rs.10,000/-. This Court is inclined to increase the notional monthly income to Rs.12,500/- and considering the nature of injuries, the claimant would have been out of action for atleast eight months. Therefore, the compensation under the head of loss of income is fixed at Rs.1,00,000/- (12,500 x 8 months).

¶17Insofar as all the other heads are concerned, the compensation fixed by the Tribunal is reasonable and it does not require the interference of this Court.

¶18In the light of the anbove discussion, the compensation fixed by the Tribunal is modified in the following terms :-

Sl. No. Compensation awarded under the head Amount (in Rs.)

¶1kDjhuUf;F Vw;gl;l epue;jpu Cdj;jpw;fhf (30% x Rs.7000) Rs.2,10,000/-

¶2kDjhuUf;F Vw;gl;l typ kw;Wk; ntjidfSf;fhf Rs.50,000/-

¶3kDjhuUf;F Vw;gl;Ls;s thH;f;if trjp ,Hg;g[f;fhf kDjhujpd; tapw;wpy; brupkhd gFjpapy; cs;s Flypy; xU gFjp ePf;fg;gl;L braw;f;if gpsh!;of; Fly; itf;fg;gl;Ls;sjhy; cztpd; mst[ vLj;Jf;bfhs;tjpy; mJ brupkhdk; MtjpYk; kDjhuUf;F ,lu;ghLfs; cs;sjhft[k; kw;Wk; kDjhujpd; fhy; gFjp clYld; ,iza[k; cy;dh vYk;g[ gFjp (DCP ulna left) rpfpr;irf;F gpwFk; rupahf Rs.50,000/- Sl. No. Compensation awarded under the head Amount (in Rs.) Rltpy;iy vd;Wk;/ k/rh/M 3 kUj;Jt tpLtpg;g[ Mtzj;jpd; mog;gilapy; kDjhuh; jug;gpy; Kd; itf;fgl;l thjj;jpid Vw;W.

¶4kDjhuUf;F

Vw;gl;l

kUj;Jt brytpd';fSf;fhf k/rh/M 5 y; fz;lthW Rs.6,40,311/-

¶5kDjhuUf;F rpfpr;irapd; nghJk; Xa;tpd; nghJk; Vw;gl;l tUkhd ,Hg;g[f;fhf (Rs.12,500/-x 8 khj';fs;) Rs.1,00,000/-

¶6kDjhuUf;F

Vw;gl;l

nghf;Ftuj;J brytpd';fSf;fhf Rs.25,000/-

¶7kdjhuupd; Cl;lr;rj;J brytpd';fSf;fhf Rs.25,000/-

¶8kdjhuh; cjtpahsh; itj;Jf;bfhz;ljw;F Vw;gl;l brytpd';fSf;fhf Rs.30,000/-

¶9kdjhuhpd;

cilfSf;F

Vw;gl;l nrj';fSf;fhf Rs.1,000/-bkhj;j ,Hg;gPl;Lj; bjhif Rs.11,31,311/-

¶19The compensation awarded by the Tribunal at Rs.10,01,311/- is enhanced to Rs.11,31,311/-. The second respondent insurance company is directed to deposit the enhanced compensation, less the amount already deposited, together with interest at 7.5% p.a. from the date of claim petition till the date of deposit within a period of four weeks from the date of receipt of this judgment. Insofar as the enhanced compensation of Rs.1,30,000/- is concerned, the appellant/claimant will not be entitled for interest for the period of delay of 314 days as was ordered by this Court in C.M.P.No.6933 of 2024, dated 23.04.2024. Insofar as the enhanced compensation is concerned, the deficit court fee, if not paid, shall be paid by the appellant. The other directions issued by the Tribunal with regard to the mode of payment of compensation remains unaltered.

¶20In the result, the Civil Miscellaneous Appeal is partly allowed in the above terms. No costs.

07.06.2024 Speaking Judgment/Non-speaking Judgment Index :Yes/No rka N.ANAND VENKATESH.,J rka To Motor Accident Claims Tribunal,Special Subordinate Judge No.2, Salem.

07.06.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2024 CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Palani ... Appellant Vs. 1. K.Vignesh 2. Magma HDI General Insurance Co Ltd., Having registered office at Magma House, 24 Park Street, Kolkatta – 700 016 Policy Serving office at Nivin's Presidium, 3rd Floor, N.M.Road, New No.17/19, Old No.103, B Black, 3A Nelson Manickam Road, Chennai 600 029 Having branch office at Door No.4/454, Ram Complex, 2nd Floor, Near New Bus Stand, ARRS Multiplex Road, Salem – 636 009 ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the award in M.C.O.P.No.1384 of 2019 dated 26.10.2022 on the file of the Motor Accident Claims Tribunal,Special Subordinate Judge No.2, Salem. For Appellant : R.Navaneetha Krishnan For Respondents : R1 – Set Exparte M/s.R Sree Vidhya for R2 *****