Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 2133 (MAD)

K. Govindan v. Anandan (Died)

2021-08-17

R.THARANI

body2021
JUDGMENT : R. THARANI, J. Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award in M.C.O.P. No. 60 of 2011, dated 14.09.2012 passed by the Motor Accident Claims Tribunal (Principal Subordinate Judge) Tenkasi, Tirunelveli District and to enhance the award amount by allowing this appeal. 1. This Civil Miscellaneous Appeal is filed to set aside the award in M.C.O.P. No. 60 of 2011, dated 14.09.2012 passed by the Motor Accident Claims Tribunal (Principal Subordinate Judge, Tenkasi and to enhance the award amount by allowing this appeal. 2. The appellant herein is the claimant and the respondents herein are the respondents in the claim petition. The appellant has filed a claim petition in M.C.O.P. No. 60 of 2011, claiming compensation for the injuries sustained by the first respondent herein, in an accident that took place on 22.02.2010. The Tribunal has awarded a sum of Rs. 1,54,647/- (Rupees One Lakhs Fifty Four Thousand Six Hundred and Forty Seven only) as compensation. Against which, the appellant has preferred this appeal. 3. A brief substance of the petition in M.C.O.P. No. 60 of 2011 is as follows: The claimant was working as a driver and was earning Rs. 8,000/- (Rupees Eight Thousand only). On 22.02.2010 at about 09.30 a.m. the first respondent drove his motorcycle bearing Registration No. TN-76-B-0061 in a rash and negligent manner and dashed against the motorcycle driven by the claimant. The claimant sustained injuries in the accident and undergone two surgeries and he was permanently disabled and prayed a sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) as compensation. 4. A brief substance of the counter of the petition in M.C.O.P. No. 60 of 2011 is as follows: The first respondent drove his two wheeler in a careful and cautious manner, it was the claimant, who was in a rash and negligent manner, suddenly turned the vehicle and dashed against the first respondent and the petitioner himself has invited the accident. Though FIR was against the first respondent, subsequently it was closed as mistake of fact. The first respondent is not responsible for the accident and hence, the second respondent is not liable to pay compensation. 5. After the trial, the Tribunal fixed the liability on the first respondent and passed an award of Rs. Though FIR was against the first respondent, subsequently it was closed as mistake of fact. The first respondent is not responsible for the accident and hence, the second respondent is not liable to pay compensation. 5. After the trial, the Tribunal fixed the liability on the first respondent and passed an award of Rs. 3,09,294/- towards compensation, and held the first respondent liable for 50 % of compensation awarded to the claimant. Against the award, the claimant preferred this appeal. 6. On the side of the appellant, it is stated that the appellant followed the road rules carefully. The accident has taken place only due to rash and negligence driving of the first respondent. The Tribunal failed to consider Ex.P1, FIR and Ex.P5, charge-sheet and fixed contributory negligence on the part of the appellant and that the Tribunal has wrongly fixed contributory negligence on the part of the appellant. 7. On the side of the insurance company, it is stated that since the accident was only due to rash and negligence driving of the appellant, the FIR registered against the first respondent was closed as ‘mistake of fact’ and the final report was marked as Ex.P5. In the closure report, it was mentioned that the claimant drove his vehicle in a rash and negligent manner. 8. FIR, rough sketch and M.V. Report were marked. RW-2 gave evidence in support of the first respondent. The Tribunal has fixed the liability on both the appellant and the first respondent for the accident. The FIR lodged against the first respondent was closed as mistake of fact. The report reveals that the claimant was driving his vehicle in a rash and negligent manner at the time of accident. 9. In view of the above discussion, this Court decides that the accident took place due to the rash and negligent driving of both the claimant and the first respondent. It is decided that the deceased is liable for 50 % contributory negligence. 10. On the side of the second respondent, it is stated that the first respondent was not having valid driving licence and that the second respondent is not liable to pay the compensation. The evidence of RW-1 reveals that the first respondent was having driving licence to drive light weight four wheeler and not a two wheeler. 10. On the side of the second respondent, it is stated that the first respondent was not having valid driving licence and that the second respondent is not liable to pay the compensation. The evidence of RW-1 reveals that the first respondent was having driving licence to drive light weight four wheeler and not a two wheeler. As per the evidence of RW-1, the first respondent is not having valid driving licence to ride the motorcycle at the time of accident. 11. It is a well settled principle that the insurance company is liable to pay compensation to the third parties and the insurance company can recover it from the owner of the vehicle. Here the owner of the vehicle died and his legal heirs are impleaded. The respondents 3 to 5 are only legal heirs of the deceased owner and their liability has to be restricted up to properties inherited from the deceased owner. Hence, the insurance company is directed to recover the amount from the properties of the deceased owner. 12. On the side of the appellant, it is stated that the claimant has sustained injuries in the accident and was admitted in K.V. Hospital, Tenkasi and then he took treatment in Susrutha Hospital, Nagercoil. The medical records were marked as Ex.P6, P7, P8, P13 to P16. The Tribunal has fixed the disability as 50% and awarded a sum of Rs. 75,000/- (Rupees Seventy Five Thousand only) for permanent disability. Hence, it is decided that the petitioner is entitled for a sum of Rs. 1,00,000/- (Rupees One Lakh only) as compensation for the permanent disability. 13. On the side of the appellant, it is stated that the Tribunal has failed to consider the future medical expenses. No specific amount was demanded by the appellant in the claim petition. The Tribunal has considered Ex.P9 and Ex.P11, which are medical bills for a sum of Rs. 98,733/- but the Tribunal has awarded a sum of Rs. 1,27,794/- towards medical expenses. No reason was given by the Tribunal for fixing the medical expenses. Hence, it is decided that the claimant is entitled for Rs. 98,733/- which is rounded off to Rs. 1,00,000/- (Rupees One Lakh only). 14. On the side of the appellant, it is stated that the Tribunal has failed to consider the future medical expenses, whereas a sum of Rs. Hence, it is decided that the claimant is entitled for Rs. 98,733/- which is rounded off to Rs. 1,00,000/- (Rupees One Lakh only). 14. On the side of the appellant, it is stated that the Tribunal has failed to consider the future medical expenses, whereas a sum of Rs. 20,000/- (Rupees Twenty Thousand only) was awarded by the Tribunal under the head future medical expenses. The award passed by the Tribunal under various other heads are reasonable. The Tribunal has granted Rs. 40,000/- (Rupees Forty Thousand only) towards pain and sufferings, Rs. 10,000/- towards attendant charges, Rs. 20,000/- towards extra nourishment, Rs. 5,000/- towards transport expenses and Rs. 1,35,000/- (Rupees One Lakh and Thirty Five Thousand only) towards temporary loss of income. 15. In the above circumstances, the total compensation is fixed as Rs. 4,30,000/- (Rupees Four Lakhs and Thirty Thousand only). Since there is contributory negligence on the part of the claimant, he is entitled only for 50% of the award amount. Hence, the appellant is entitled to a sum of Rs. 2,15,000/- (Rupees Two Lakhs and Fifteen Thousand only) with 7.5% interest from date of the claim petition till the date of realization. 16. In the result, this Civil Miscellaneous Appeal is partly allowed. Hence, the second respondent is directed to pay a sum of Rs. 2,15,000/- (Rupees Two Lakhs and Fifteen Thousand only) as compensation with interest at the rate of 7.5% from the date of the claim petition till the date of realization to the appellant and the second respondent is at liberty to recover the same from the properties of the deceased owner of the vehicle. The second respondent if not deposited the award amount so far, has to deposit the same within a period of 8 weeks from the date of receipt of copy of this order. On such deposit, the appellant is permitted to withdraw the award amount with proportionate interest after deducting any amount received by him earlier. Excess amount, if any deposited shall be refunded to the second respondent. The claimant is not entitled for interest for the default period, if there is any. No Costs.