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2021 DIGILAW 1280 (MAD)

National Insurance Co. Ltd. v. D. Arunachalam

2021-04-07

G.K.ILANTHIRAIYAN

body2021
JUDGMENT : G.K. ILANTHIRAIYAN, J. 1. As against partly allowing the Motor Accidents Claim Petition in M.C.O.P. No. 2926 of 2007, dated 01.08.2011 on the file of the Motor Accidents Claims Tribunal, IV Court of Small Causes, Chennai, the Insurer/Insurance Company has filed C.M.A. No. 3078 of 2012 and the Claimant has filed C.M.A. No. 184 of 2014. 2. For the sake of convenience, the parties are referred to hereunder according to their litigative status before the Tribunal. 3. The case of the claimant is that, on 05.08.2007 at about 20.30 hours, while he was riding his motor cycle bearing Registration No. TN-21-AZ-2505 near Melperumalcherry Bridge, Venkambakkam, Thirukazhukundram Taluk, Kanchipuram District, a car belonging to the second respondent in C.M.A. No. 3078 of 2012 and the first respondent in C.M.A. No. 184 of 2014, which was driven by its driver in a rash and negligent manner from the opposite direction, hit the claimant's vehicle. Due to the said accident, the claimant sustained grievous injuries. The claimant claimed that the driver of the car is responsible for the accident and the claimant sustained fracture of bones of both legs, fracture of right thigh, laceration over right wrist, abrasion over right forehead and multiple injuries all over the body. Immediately, he was taken to hospital and given treatment on 05.08.2007, at Chengalpattu Medical College Hospital, Chengalpattu. At the time of accident, he was working as a Fire Fitter in H.M.T. Industries and earning a sum of Rs. 8,000/- per month. Due to grievous injuries sustained by him during the accident, he sustained 65% permanent disability and as such, he could not continue his avocation. Hence, the claim petition. 4. Resisting the same, the Insurer/Insurance Company denied the allegations made against the owner of the car. The accident had occurred due to rash and negligent driving of the claimant and during the accident, he was under the influence of alcohol and as such, he is not entitled for any claim. In fact, the First Information Report has been registered as against the claimant and he being the tort-feasor, cannot be allowed to claim any compensation, for his own fault. It is further stated that the claim petition is liable to be dismissed for non-joinder of the owner and insurer of the motor cycle. 5. In fact, the First Information Report has been registered as against the claimant and he being the tort-feasor, cannot be allowed to claim any compensation, for his own fault. It is further stated that the claim petition is liable to be dismissed for non-joinder of the owner and insurer of the motor cycle. 5. On the side of the claimant, two witnesses were examined as PW-1 and PW-2 and documents were marked as Exs.P.1 to P.13. On the other side, one witness was examined as RW-1 and no document was marked as Ex.R.1 before the Tribunal. 6. On a perusal of the oral and documentary evidence, the Tribunal found that the accident took place only due to the rash and negligent driving of the car and fixed the liability on the insurer of the car. The Tribunal awarded a sum of Rs. 4,75,000/- as compensation payable by the Insurance Company. Aggrieved by the same, the claimant filed an appeal in C.M.A. No. 184 of 2014 seeking for enhancement of the amount awarded by the Tribunal. At the same time, the Insurer/Insurance Company of the car filed an appeal in C.M.A. No. 3078 of 2012, questioning the liability. 7. The learned counsel for the Insurance Company submitted that the claimant being a tort-feasor, cannot claim anything under Section 166 of the Motor Vehicles Act; only on account of rash and negligent driving of the claimant, the accident had happened and as such, the First Information Report was also registered as against the claimant for the offences under Sections 279 and 338 of IPC; in fact, the claimant was charge sheeted and he faced trial; though, on behalf of the Insurance Company, it was deposed that the claimant was under the influence of alcohol at the time of accident and only his due to rash and negligent driving, the accident took place, the Tribunal answered only in respect of the influence of alcohol and failed to consider the rash and negligent driving of the claimant. 8. Admittedly, the claimant had not impleaded the insurer of the two-wheeler which was ridden by him, when the First Information Report was registered against him. Insofar as the award is concerned, the Tribunal had taken the disability at 33%, which was assessed by Doctor-PW-2 in respect of the whole body. 8. Admittedly, the claimant had not impleaded the insurer of the two-wheeler which was ridden by him, when the First Information Report was registered against him. Insofar as the award is concerned, the Tribunal had taken the disability at 33%, which was assessed by Doctor-PW-2 in respect of the whole body. When that being so, the Tribunal ought to have taken 1/3rd of the whole body disability, whereas, the Tribunal had taken 33% more than half of the disability suffered on the whole body and awarded the compensation. The claimant also failed to prove his employment as Fire Fitter and even then, the Tribunal has considered the monthly income at Rs. 5,000/- per month, without any iota of evidence. Therefore, there is no question of enhancement of award, when the claimant is not at all entitled for any claim, since he being the tort-feasor. 9. Per contra, the learned counsel for the claimant submitted that the Insurance Company had taken specific stand that the claimant was under the influence of alcohol and only on his rash and negligent driving, the accident took place; the second respondent failed to prove the same by any piece of evidence and as such, the Tribunal has rightly fixed the liability on the car, which was driven by its driver in the rash and negligent manner. Further, there is no independent witness examined by the Insurance Company to prove the negligence on his part; RW-1 is none other than the driver of the car, who drove the car and hit the claimant's two-wheeler, due to which, the claimant sustained grievous injuries. Even then, the case of the Insurance Company is that when the claimant was trying to overtake an Auto Rickshaw, he dashed against the car and the accident had taken place. Unfortunately, the Tribunal, without considering these aspects, simply rejected the contentions only for the reason that the Insurance Company failed to prove that the claimant was under the influence of alcohol at the time of accident. 10. Insofar as the enhancement of the award is concerned, the learned counsel for the claimant submitted that, at the time of accident, the claimant was aged about 35 years and he was working as Fire Fitter and as such, he has to work in standing position for full day during his course of employment. 10. Insofar as the enhancement of the award is concerned, the learned counsel for the claimant submitted that, at the time of accident, the claimant was aged about 35 years and he was working as Fire Fitter and as such, he has to work in standing position for full day during his course of employment. While that being so, the claimant sustained fracture on both bones of his right leg and as such, 2 inches of right leg was shortened and PW-2, the Doctor had assessed his disability at 65%, whereas, the Tribunal had taken the disability at 33% without any rhyme or reason. Insofar as the claimant's monthly income is concerned, the Tribunal has fixed only Rs. 5,000/- when there was no contra evidence produced by the Insurance Company, the claimant was also working as Fire Fitter in H.M.T. Industries and was earning a sum of Rs. 8,000/- per month. 11. Heard the learned counsel for the claimant as well as the learned counsel for the Insurance Company. 12. The claimant filed an appeal in C.M.A. No. 184 of 2014 for enhancement of the award dated 01.08.2011 passed by the Tribunal. The Insurance Company filed an appeal in C.M.A. No. 3078 of 2012, questioning the liability fixed on it. On 05.08.2007, when the claimant was riding his motor cycle, the driver of the first respondent drove the car from the opposite direction and hit the claimant's vehicle, as a result of which, the claimant sustained grievous injuries and fractures on both bone legs, right thigh, laceration over right wrist, abrasion over right forehead and multiple injuries all over the body. Immediately, he was admitted in a hospital and he had taken treatment as an in-patient in Government General Hospital from 05.08.2007 to 24.09.2007 and thereafter, from 08.10.2007 to 16.10.2007 and again from 19.10.2009 and 06.11.2009, the claimant deposed that he was working as Fire Fitter in H.M.T. Industries and was earning a sum of Rs. 8,000/- per month. Except his oral evidence, he did not produce any material to show that he was working as Fire Fitter in H.M.T. Industries. Therefore, the Tribunal had rightly taken his monthly income as Rs. 5,000/- per month. The disability certificate was marked as Ex.P.13 through PW-2, who assessed the disability of the claimant at 65% in respect of the injury sustained by him. 13. Therefore, the Tribunal had rightly taken his monthly income as Rs. 5,000/- per month. The disability certificate was marked as Ex.P.13 through PW-2, who assessed the disability of the claimant at 65% in respect of the injury sustained by him. 13. According to the claimant, both bones of his right leg got fractured and his right leg got shortened by 2 inches. Therefore, he is not able to do his regular work as Fire Fitter as before. There is no specific evidence from PW-2 that the disability of 65% is permanent. The disability was assessed in respect of whole body and as such, the Tribunal had rightly taken the disability at 33%. Further, due to the disability, the claimant cannot do his avocation as before and as such, the Tribunal rightly assessed the disability at 33% and adopted multiplier “16.” Therefore, this Court is of the view that the Tribunal rightly awarded the compensation at Rs. 4,75,000/- and the claimant is not entitled for any enhancement as claimed by him. 14. Insofar as the liability is concerned, though the Insurance Company had taken a specific stand that at the time of accident, the claimant was under the influence of alcohol, no evidence was produced and no one was examined to prove the same. That apart, the person who drove the car was examined as RW-1 and he deposed that only due to the rash and negligent of riding by the rider of the claimant, the accident took place. After the accident, admittedly the claimant was unconscious and he was not able to lodge any complaint. RW-1 who drove the car, lodged the complaint, based on which the First Information Report was registered and charge sheet was filed as against the claimant. On a perusal of the charge sheet in Crime No. 220 of 2007, it reveals that no charge is alleged against the claimant. It is relevant to extract the charge as follows:- Others Language 15. No specific charge is mentioned as against the claimant to attract any of the offences under Sections 279 and 338 of the IPC. Therefore, the Tribunal rightly fixed the liability as against the Insurance Company and the same does not warrant any interference by this Court. 16. Accordingly, these Civil Miscellaneous Appeals are dismissed. No costs. No specific charge is mentioned as against the claimant to attract any of the offences under Sections 279 and 338 of the IPC. Therefore, the Tribunal rightly fixed the liability as against the Insurance Company and the same does not warrant any interference by this Court. 16. Accordingly, these Civil Miscellaneous Appeals are dismissed. No costs. The Insurance Company shall deposit the entire compensation amount, along with interests and costs, as awarded by the Claims Tribunal, less the amount already deposited, if any, within a period of six weeks, from the date of receipt of a copy of this judgment. On such deposit being made, the Tribunal is directed to transfer the deposited amount to the Savings Bank Account of the claimant herein, within one week thereafter, through RTGS. Consequently, connected MP is closed.