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2018 DIGILAW 3044 (MAD)

M. VIGNESHWARAN v. R. ANBAZHAGAN

2018-09-18

K.K.SASIDHARAN, R.SUBRAMANIAN

body2018
JUDGMENT R. Subramanian, J. This Appeal is at the instance of the injured claimant who was awarded a sum of Rs.2,28,000/- for the injuries suffered by him in a motor accident that occurred on 01.06.2012. Though, the Tribunal arrived at the compensation payable at Rs.4,55,740/-, it awarded only a sum of Rs.2,28,000/-, since it found that the injured claimant had contributed to an extent of 50% to the accident. 2. The case of the claimant before the Tribunal was that while he was riding a Motor Cycle bearing Registration No.TN-19-Y-5586, on the East Coast Road at about 12.30 hrs on 01.06.2012, a Mahindra Scorpio Car, bearing Registration No.TN-31-CZ-0009, just coming from behind in the same direction, driven by its driver in a rash and negligent manner dashed against the Motor Cycle. As a result of the accident, the claimants suffered grievous injuries all over the body including a compound Grade III B fracture of both bones in the right leg and fracture shaft of Humerus Left Side with finger drop and right Mandibular Angle fracture and left Mandibular Parasymphysis Fracture and Bilateral Parietal Contusions. Contending that the injuries had resulted in permanent disability, the claimant had sought for a compensation of Rs. 30,00,000/-. According to the claimant, he was a Diploma Holder in Mechanical Engineering and he was in working in a Mechanic Shop, earning Rs. 20,000/- per month. 3. The claim was resisted by the Insurance Company contending that the accident did not occur due to the rash and negligent driving of the driver of the Mahindra Scorpio Car. It was further contended that the injured claimant/appellant drove the two wheeler in a rash and negligent manner and invited the accident. It was also contended that the injured claimant did not have the valid license at the time of the accident. Therefore, according to the Insurance Company, the injured claimant had also contributed to the accident. The Age, Educational Qualification and the Income particulars as well as the quantum of disability claimed were also denied by the Insurance Company. 4. The Tribunal which heard the Claim Petition concluded that the accident occurred due to the negligence of both the drivers. Relying upon the evidence of the claimant himself that he did not have a valid driving license on the date of the accident, the Tribunal apportioned the compensation between the drivers of the two vehicles at 50% each. 5. 4. The Tribunal which heard the Claim Petition concluded that the accident occurred due to the negligence of both the drivers. Relying upon the evidence of the claimant himself that he did not have a valid driving license on the date of the accident, the Tribunal apportioned the compensation between the drivers of the two vehicles at 50% each. 5. On the quantum, the Tribunal concluded that the claimant had suffered a permanent disability of about 50%. Considering the nature of the injuries as well as the Disability Certificate, the Tribunal found that the injuries did not result in any loss of future earning capacity. The Tribunal passed an award granting various amounts under various heads as detailed below : Sl. No. Heads Amount 1. Medical Bills Rs. 2,67,740/- 2. Attender Charges Rs. 2,000/- 3. Disability - Rs. 3,000/- x 50% Rs. 1,50,000/- 4. Loss of Income Rs. 16,000/- 5. Pain and Suffering Rs. 10,000/- 6. Transport to Hospital Rs. 5,000/- 7. Extra Nourishment Rs. 5,000/- TOTAL Rs. 4,55,740/- 6. In view of the finding that the claimant was also responsible for the accident to an extent of 50%, the Tribunal granted an award of Rs. 2,28,000/-. The claimant challenges the said award on the ground that the fixation of negligence by the Tribunal is not correct and the quantum of compensation is also very low. 7. We have heard Mr. F. Terry Chellaraja, learned counsel for Mr. V. Velu, learned counsel appearing for the appellant. Mr. S. Vadivel, learned counsel appearing for the 2nd respondent/Insurance Company and the 1st respondent though served does not appear either in person or through counsel duly instructed. 8. Mr. F. Terry Chellaraja, learned counsel appearing for the claimant/appellant would strenuously contend that the Tribunal was not right in fixing the quantum of negligence at 50% on the injured claimant. Narrating the manner in which the accident took place, the learned counsel would submit that there cannot be any negligence attributed to the injured claimant. He would also contend that the mere fact that the injured claimant did not possess a license would not amount to negligence on the part of the claimant. He would submit that some more evidence is required to show that the injured claimant was in fact negligent. He would also contend that the mere fact that the injured claimant did not possess a license would not amount to negligence on the part of the claimant. He would submit that some more evidence is required to show that the injured claimant was in fact negligent. He would also point out that the Insurance Company has not examined either the driver of the Car or the owner, to prove absence of negligence on their part or the negligence on the part of the claimant. 9. Per contra, Mr. S. Vadivel, learned counsel appearing for the Insurance Company would contend that the FIR shows that the claimant was engaged in test riding of the Motor Cycle. According to Mr. S. Vadivel, the fact that the claimant was not having a license coupled with the fact that he was engaged in test driving of the Motor Cycle would show that there was negligence on the part of the injured claimant/appellant. 10. We have considered the rival Submissions. 11. The FIR has been lodged by the father of the injured claimant, wherein, it is stated that while his son, who was working in a Mechanic Shop, was test riding the motor cycle, a Mahindra Scorpio Car, bearing Registration No.TN-31-CZ-0009, came from behind and hit against him. The injured claimant was examined as P.W.1 has also narrated as to how the accident that took place. The Insurance Company has not chosen to examine the driver of the car to show absence of negligence on its part. In the absence of any evidence on the side of the Insurance Company and the fact that the FIR as well as the evidence of P.W.1 does not disclose the presence of negligence on the part of the insured claimant /appellant, we are unable to agree with the Tribunal's apportionment of negligence at 50% each. 12. We find that the contribution of the driver of the Car to the accident should be definitely more, because the Car had come from behind and hit the two wheeler. The East Coast Road being a National Highway, the Car should have maintained the safe distance, from the vehicle going ahead of it. If only the Car driver has maintained the distance, we are sure that he would have avoided the accident, particularly in a Highway. The East Coast Road being a National Highway, the Car should have maintained the safe distance, from the vehicle going ahead of it. If only the Car driver has maintained the distance, we are sure that he would have avoided the accident, particularly in a Highway. We are, therefore, of the considered opinion that the negligence should be apportioned 70% on the driver of the Car and 30% on the driver of the two wheeler. 13. We also find that the awards on the heads of attender charges and pain and suffering are very low when compared to the fact that the claimant was hospitalized for nearly 27 days as an inpatient. We, therefore, award Rs. 50,000/- towards attender charges instead of Rs.2,000/- awarded by the Tribunal and Rs.75,000/- towards pain and suffering instead of Rs. 10,000/- awarded by the Tribunal. The awards made on other heads are confirmed. Thus, the total compensation payable would work out to Rs. 5,68,740/-. Accordingly, the modified award is as follows : Sl. No. Heads Amount 1. Medical Bills Rs. 2,67,740/- 2. Attender Charges Rs. 50,000/- 3. Disability - Rs. 3,000/- x 50% Rs. 1,50,000/- 4. Loss of Income Rs. 16,000/- 5. Pain and Suffering Rs. 75,000/- 6. Transport to Hospital Rs. 5,000/- 7. Extra Nourishment Rs. 5,000/- TOTAL Rs. 4,55,740/- 14. Since, We have held that the injured claimant had contributed to the accident an extent of 30%, he would be entitled to 70% of the amount determined as compensation i.e., the same is worked out to Rs. 3,98,118/- and the same is rounded off to Rs. 4,00,000/-. 15. In fine the appeal is allowed in part. The modified award amount Rs. 4,00,000/- will carry interest at 7.5% per annum from the date of petition till date of payment and proportionate costs. There shall be no order as to costs. 16. The Insurance Company is directed to deposit the modified award amount, less the amount, if any, already deposited within a period of six (6) weeks from the date of receipt of a copy of the judgment. On such deposit, the claimant is permitted to withdraw the compensation.