The Branche Manager Vs Devaraj,S/O.Velu Gounder

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 27.07.2021

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CORAM

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THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

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C.M.A.NO.2390 OF 2015 &

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M.P.NO.1 OF 2015

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The Branch Manager,
United India Insurance Co. Ltd.,
Ranipet

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Vs

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1.Devaraj ...1st Respondent / Petitioner

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2.Durairaj ...2nd Respondent / 1st Respondent

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PRAYER : Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicles Act against the Judgment and Decree dated
13.06.2014 made in MCOP.No.68 of 2012 on the file of the Motor
Accident Claims Tribunal (Subordinate Judge), Cheyyar.

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Not ready in notice regarding R2.

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JUDGMENT

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(This case is heard through Video Conferencing)

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This civil miscellaneous appeal has been filed by the
Insurance company challenging the award dated 13.06.2014 passed
by the Motor Accident Claims Tribunal (Subordinate Judge,
Cheyyar) in MCOP.No.68 of 2012.

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2. The Appellant Insurance Company has challenged the
impugned award on the following grounds (a) the first
respondent/claimant himself is a tortfeasor as the accident had

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https://hcservices.ecourts.gov.in/hcservices/

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happened while he was boarding the bus (insured vehicle) and (b)
the quantum of compensation awarded by the Tribunal is
excessive, since the Tribunal has erroneously adopted the
multiplier method for assessing the compensation.

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3. The Tribunal has awarded a compensation of
Rs.12,68,000/- to the first respondent/claimant as detailed
hereunder:

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`Heads`	`Award Amount`
	`(Rs.)`
`Transport to hospital`	`10,000/-`
`Extra nourishment`	`20,000/-`
`Pain and suffering`	`50,000/-`
`Permanent disability`	`11,88,000/-`
`Total`	`12,68,000/-`

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4. With regard to the first contention raised by the
Appellant is concerned, this Court rejects the same for the
following reasons:

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(a) It is the case of the first respondent/claimant as
seen from the claim petition filed before the Tribunal that
while attempting to board the bus (insured vehicle) at the bus
stop and even before he could board the bus, the driver of the
bus by his rash and negligent driving moved the bus which
resulted in him falling down and sustaining injuries. A
consistent stand has been taken by the first respondent/claimant
as seen from his pleading as well as from his deposition before
the Tribunal. No contra evidence has been produced by the
Appellant insurance Company to disprove the said contention.

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(b) FIR (Ex.P1) has also been registered only against the
driver of the bus (insured vehicle). No contra evidence has been
produced by the Appellant Insurance Company before the Tribunal
to disprove the contention of the first respondent/claimant.

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5. This Court is of the considered view that the Tribunal
was right in holding the driver of the insured bus alone
responsible for the cause of the accident which resulted in the
first respondent/claimant sustaining injuries.

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6. With regard to the second contention namely the
quantum of compensation awarded by the Tribunal to the first
respondent/claimant is excessive is concerned, there is some
substance. However, the same will have to be re-adjudicated once
again by the Tribunal for the following reasons:

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(a) The first respondent/claimant in his claim petition
has claimed a compensation of Rs.4,50,000/-, whereas the
Tribunal has awarded a compensation of Rs.12,68,000/- under the
impugned award. Though the same is permissible under law, the
Tribunal ought to have given reasons for awarding such a huge
sum, despite the fact that the first respondent/claimant has
himself claimed only R.4,50,000/-

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(b)The permanentdisability ofthe first
respondent/claimant has been fixed at 60% by the Tribunal under
the impugned award based on the certificate issued by the
medical board which has been marked as Ex.P10 as well as the
certificate issued by the Doctor which has been marked as Ex.P18
before the Tribunal. The disability certificate issued by the
medical board (Ex.P10) does not refer to the fractures sustained
by the first respondent/claimant as a result of the accident,
but it refers to other ailments. Whether 60% disability assessed
by the medical board (Ex.P10) and the disability certificate
issued by the Doctor (Ex.P18) is only on account of the injuries
sustained by the first respondent/claimant as a result of the
accident caused by a vehicle insured with the Appellant has not
been considered by the Tribunal as seen from the impugned award.
The contention of the Appellant Insurance Company is that the
assessment of the disability by the medical board as well as the
doctor is an erroneous assessment.

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(c) The Appellant insurance company has also raised the
contention that the first respondent/claimant is a chronic
smoker and an alcohol consumer as seen from Ex.P4 and Ex.P7
discharge summaries issued by Miot Hospitals. The Tribunal has
also not taken into consideration the said contention of the
Appellant Insurance Company as seen from the impugned Award.

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(d) Tt is brought to the notice of this Court that 50% of
the award amount has already been deposited by the Appellant
Insurance company before the Tribunal and out of the said
deposited amount, a sum of Rs.4,00,000/- was permitted to be
withdrawn by the first respondent/claimant by the order of this
Court.

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7. Since the contention of the Appellant insurance
company which have been raised in this appeal referred to
supra, have admittedly not been considered by the Tribunal under
the impugned award, this Court is of the considered view that
the matter will have to be remitted back to the Tribunal for
fresh consideration on merits and in accordance with law and the
Tribunal shall consider the contentions referred to supra based
on the materials and evidence available on record.

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8. This Court is not expressing any opinion on the merits
of the claim made by the first respondent/claimant and the
Tribunal shall pass an award uninfluenced by any of the
observations made by this Court in this judgment.

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9. For the foregoing reasons, the impugned judgment dated
13.06.2014 passed by the Motor Accident Claims Tribunal (Sub
Judge, Cheyyar) in MCOP.No.68 of 2012 is hereby set aside and
the matter is remanded back to the Tribunal for fresh
consideration and the Tribunal after permitting the respective
parties to adduce further evidence ,shall pass final award
within a period of four months from the date of receipt of a
copy of this judgment. However, it is made clear that the
Tribunal shall confirm the findings of the Tribunal under the
impugned award that the driver of the bus (insured vehicle) was
alone responsible for the cause of the accident and shall give
the finding only with regard to the quantum of compensation
payable to the Appellant/Insurance Company raised in this
appeal which have been referred to supra.

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10. In the result, this civil miscellaneous appeal is
disposed of. No costs. Consequently, connected miscellaneous
petition is closed.

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Assistant Registrar

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// True Copy //

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Sub Assistant Registrar

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nl

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https://hcservices.ecourts.gov.in/hcservices/

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To

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The Subordinate Judge,
The Subordinate Court,
Cheyyar.

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Copy To

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 The Section Officer,
 V.R.Section,
 High Court of Madras.

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C.M.A.No.2390 of 2015

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SRA(CO)
RVM(08/11/2021)

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https://hcservices.ecourts.gov.in/hcservices/

The Branche Manager v. Devaraj,S/O.Velu Gounder

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The Branche Manager v. Devaraj,S/O.Velu Gounder

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