Alex Pandiyan v. A. Jayalakshmi

JUDGMENT The appellant is the claimant in M.C.O.P.409 of 2016 on the file of the Motor Accident Claims Tribunal, II Additional District and Sessions Court, Tiruvallur at Poonamallee. He filed the above said claim petition under Section 166 of the Motor Vehicles Act, seeking compensation of Rs.5,00,000/- for the injuries sustained by him in a road accident that took place on 11.02.2014.

¶2The brief case of the appellant / claimant is as follows : On 11.02.2014, the claimant was riding a motorcycle bearing Registration No.TN-49-AD-5484 on Thanjavur - Kumbakonam Main Road. When he was nearing NH Nursery, a speeding Mahindra & Mahindra Van bearing Registration Number TN-32-X-6665 came in the opposite direction and hit the two wheeler driven by the claimant, as a result of which, he fell down and sustained injuries all over his body. He was immediately rushed to Government Medical College Hospital, Thanjavur. After getting first aid in the hospital, he got himself admitted in a private hospital for further treatment.

2.1. According to the claimant, the rash and negligent driving of the driver of the van bearing Registration Number TN-32-X-6665 was the cause of accident and that since the said vehicle was insured with the second respondent, the National Insurance Company Limited, the owner and the insurer are jointly and severally liable to pay compensation to him.

¶3In the Tribunal, the owner of the van remained absent and was set exparte. The second respondent, the National Insurance Company Limited resisted the claim petition on all the grounds available to the insurer under Section 170 of the Motor Vehicles Act.

¶4The Tribunal, vide its orders dated 14.03.2023, fastened negligence on the part of the driver of the van bearing Registration Number TN-32-X-6665 and the claimant in the ratio 95:5 and directed the second respondent to pay compensation of Rs.2,72,811/- (95% of the total compensation of Rs.2,87,170/-) to the appellant (claimant) together with interest at the rate of 7.5% per annum from the date of the petition till the date of realisation. The Tribunal also held that the liability of the respondents are joint and several.

¶5Aggrieved over the orders passed by the Tribunal, the appellant (claimant) has filed the present appeal under Section 173 of the Motor Vehicles Act, 1988.

¶6Heard Mr.K.Varadha Kamaraj, learned counsel appearing for the appellant and Mr.M.Krishnamoorthy, learned counsel for the second respondent.

¶7Mr.K.Varadha Kamaraj, learned counsel appearing for the appellant contended that the compensation awarded by the Tribunal is not commensurate with the injuries sustained by the claimant. He therefore, prayed for enhancement of compensation.

¶8Per contra Mr.M.Krishnamoorthy, learned counsel appearing for the second respondent contended that the Award passed by the Tribunal is based on the well laid principles of law which were in vogue at the time of passing of the order and therefore, the same need not be disturbed at this stage. Negligence

¶9The Tribunal had fastened 5% of contributory negligence on the part of the claimant since three persons were travelling in the two wheeler as against the seating capacity. A perusal of the records shows that the driver of the van was rash and negligent in driving his vehicle. and there is nothing on record to show that the rider of the two wheeler also contributed to the accident. In the circumstances the order of the Tribunal fastening 5% of contributory negligence on the part of the claimant is set aside. Quantum

¶10It is seen from the records that the claimant was aged 22 years on the date of accident. According to him, he was working in a private concern and he sustained severe injuries in his right hand and fracture in both legs. The Medical Board attached to Government Medical College Hospital, Thanjavur, has assessed the partial permanent disability of the claimant as 51%. Since there is no functional disability, the Tribunal fixed a sum of Rs.3,000/- per percentage of disability and awarded a sum of Rs.1,53,000/- towards partial permanent disability. Considering the age of the claimant and the year of accident, a sum of Rs.4,000/- per percentage of disability is awarded. Therefore, a sum of Rs.2,04,000/-(51 x 4000) is awarded towards partial permanent disability.

10.1. The Tribunal while awarding compensation under various heads, has awarded sum of Rs.15,000/- towards "loss of income". On account of the accident, the appellant would not have been in a position to attend to his regular work atleast for four months. Thus, a sum of Rs.20,000/- (5,000 x 4= 20,000) is awarded towards loss of income. The following tabular column would show the amount awarded by the Tribunal and the enhanced amount awarded by this Court under various heads. S.No Heads Amount awarded by Tribunal

(Rs) Amount awarded by this Court

(Rs)

¶1Transport

to Hospital 10,000/-10,000/-

¶2Extra nourishment 10,000/-10,000/-

¶3Damages to clothes 1,000/-1,000/-

¶4Attender charges 3,000/-5,000/-

¶5Pain and sufferings 20,000/-20,000/-

¶6Loss of amenities 25,000/-25,000/-

¶7Partial permanent disability 1,53,000/-2,04,000/-

¶8Loss of income 15,000/- 20,000/- (5,000 x 4)

¶9Medical Expenses 50,170/-50,170/-TOTAL Rs.2,87,170/-(after deducting 5% contributory negligence 2,72,811/-) Rs.3,45,170/-

¶11Thus, the compensation awarded by the Tribunal is enhanced to Rs.3,45,170/- that would carry interest at the rate of 7.5% per annum.

¶12In the result, i. The Civil Miscellaneous Appeal is partly allowed. No costs. ii. The orders passed by Tribunal fixing contributory negligence on the part of the claimant is set aside. iii. The compensation awarded by the Tribunal is enhanced to Rs.3,45,170/-. iv. The appellant / claimant is directed to pay the Court fee for the enhanced compensation amount, if any, and the Registry is directed to draft the decree only after receipt of Court fee. v. The second respondent, the National Insurance Company Limited, is directed to deposit the enhanced compensation amount, i.e., Rs.3,45,170/- (less the amount already deposited) together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit to the credit of M.C.O.P.409 of 2016 on the file of the Motor Accident Claims Tribunal, II Additional District and Sessions Court, Tiruvallur at Poonamallee, within a period of four weeks from the date of receipt of a copy of this order / uploading of this order. vi. On such deposit being made, the appellant / claimant is at liberty to withdraw the same, after following due process of law. vii.The appellant / claimant is not entitled to claim interest for the period of delay of 54 days in filing this appeal.

15.10.2024 (1/2) Index:Yes/No Speaking/non Speaking order Neutral Case citation: yes/no mtl To

¶1The Motor Accident Claims Tribunal, II Additional District and Sessions Court, Tiruvallur at Poonamallee,

¶2National Insurance Company Limited, having its office branch I at No.45, Feet Road, Above Menaka Cars, Pondicherry and Branch Office at No.661, Trunk Road, Poonamallee, Chennai - 600 056.

¶3The Section Officer, V.R. Section, High Court, Madras. R.HEMALATHA, J mtl C.M.A. No.505 of 2024

15.10.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.10.2024 CORAM: THE HONOURABLE MRS.JUSTICE. R.HEMALATHA C.M.A.No.505 of 2024 Alex Pandiyan ... Appellant Vs. 1. A.Jayalakshmi 2. National Insurance Company Limited, having its office branch I at No.45, Feet Road, Above Menaka Cars, Pondicherry and Branch Office at No.661, Trunk Road, Poonamallee, Chennai - 600 056. ... Respondents PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Award dated 14.03.2023 in M.C.O.P.409 of 2016 on the file of the Motor Accident Claims Tribunal, II Additional District and Sessions Court, Tiruvallur at Poonamallee. For Appellant : Mr.K.Varadha Kamaraj For R2 : Mr.M.Krishnamoorthy