1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.07.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.842 of 2011 and CROSS OBJECTION No.19 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 CIVIL MISCELLANEOUS APPEAL No.842 of 2011: The Oriental Insurance Co. Ltd., C.B.O.II, 73/B-1, Salai Road, Thillai Nagar,Trichy – 18 through its Branch Manager. .. Appellant/Second Respondent Vs. 1.Mondhan @ Ondhaan 2.K.C.Rajendran .. Respondents/Petitioner (R2 – Given up) and first respondent Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 27.01.2011 passed in M.C.O.P.No.1388 of 2008 by the Motor Accidents Claims Tribunal/Second Additional Sub Court, Trichy. For Appellant .. Mr.C.Jawahar Ravindran For Respondent .. Mr.B.Prasanna Vinoth No.1 CROSS OBJECTION No.19 of 2011: Monthan @ Onthan .. Cross Objector Vs. 1.K.C.Rajendran 2.The Oriental Insurance Co. Ltd., C.B.O.II, 73/B-1, Salai Road, Thillai Nagar,Trichy – 18. .. Respondents Cross Objection has been filed under Order XLI, Rule 22(1) of C.P.C., against the award dated 27.01.2011 passed in M.C.O.P.No.1388 of 2008 by the Motor Accidents Claims Tribunal/Second Additional Sub Court, Trichy. For Cross Objector .. Mr.B.Prasanna Vinoth For Respondent No.1 .. Mr.C.Jawahar Ravindran COMMON JUDGMENT The award dated 27.01.2011 passed in M.C.O.P.No.1388 of 2008 by the Motor Accidents Claims Tribunal/Second Additional Sub Court, Trichy is being challenged in the present Civil Miscellaneous Appeal as well as in Cross Objection. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The first respondent in Civil Miscellaneous Appeal No.842 of 2011 and Cross Objector as petitioner has filed M.C.O.P.No.1388 of 2008 on the file of the Motor Accidents Claims Tribunal praying to pass an award of Rs.5,00,000/- by way of compensation, wherein the present appellant in Civil Miscellaneous Appeal No.842 of 2001 has been shown as second respondent. 3. It is stated in the petition that on 09.03.2007, the petitioner has travelled in the mini bus bearing Registration No.TN- 59-N-0207, which belongs to the first respondent and the same has been insured with the second respondent. Due to rash and negligent driving of the driver of the first respondent, the accident has happened. Due to accident, the petitioner has sustained grievous injuries in his left hand and also fingers. After accident he has been taken to hospital. The vehicle which caused the accident has been insured with the second respondent. Under the said circumstances, the present petition has been filed for getting the relief sought for in the petition. 4. In the counter filed on the side of the second respondent, it is averred that there is no rash and negligent driving on the part of the driver of the first respondent. The petitioner has projected his left hand outside the bus and only due to his negligence, the accident has occurred. Since the petitioner himself is solely responsible for the accident, the second respondent is not liable to pay compensation. Further the petitioner has exaggerated his monthly income and there is no merit in the petition and the same deserves to be dismissed. 5. On the basis of the available evidence on record, the Motor Accidents Claims Tribunal has come to a definite conclusion to the effect that the entire accident has happened only due to rash and negligent driving of the driver of the first respondent and ultimately awarded a compensation of Rs.2,30,120/- and thereby directed the respondents 1 and 2 to pay the same to the petitioner. With regard to liability and also quantum of compensation, the present Civil Miscellaneous Appeal has been filed and in order to get enhancement of compensation Cross Objection No.19 of 2011 has been filed. 6. The learned counsel appearing for the appellant/second respondent has not touched the factum of accident and the only grievance expressed on the side of the appellant/second respondent is that prior to accident, the petitioner has protruded his left hand outside the bus and due to that accident has happened and the Motor Accidents Claims Tribunal without considering the attitude of the petitioner has erroneously fixed liability upon the driver of the first respondent and therefore the award passed by the Motor Accidents Claims Tribunal is liable to be interfered with. 7. Per contra,the learned counsel appearing for the first respondent/cross objector has contended that the petitioner has been examined as P.W.1 and his specific evidence is that only due to accident, his left hand has crushed in an electric post and due to that he sustained injuries and therefore the petitioner cannot be https://hcservices.ecourts.gov.in/hcservices/ 3 mulcted with the liability and the Motor Accidents Claims Tribunal after considering the overall evidence available on record has rightly fixed sole responsibility upon the driver of the first respondent and therefore the responsibility fixed upon the driver of the first respondent cannot be interfered with. 8. For considering the above factual aspect, the Court has to look into Ex.P.1, First Information Report and also Ex.R.2. Ex.P.1 is a copy of complaint alleged to have been given with regard to accident, wherein it has been stated that the petitioner has protruded his left hand outside the bus and likewise in Ex.R.2 also it has been clearly stated to the effect that the petitioner has reported the concerned doctor that he placed his left hand outside the bus and due to accident it has sustained injuries. Therefore from the clear admission made by the petitioner in Ex.P.1 and in Ex.R.2, the Court can clearly come to a conclusion that the petitioner has also contributed his negligence for the accident. 9. At this juncture, the learned counsel appearing for the first respondent/petitioner/ cross objector has contended that even for the sake of argument if the petitioner has placed his left hand outside the bus, the driver or the conductor of the concerned bus would have given proper caution, but they have not done so and under the said circumstances, the entire liability has been fixed upon the driver of the first respondent. 10. As stated earlier, in Ex.A.1 and in Ex.R.2, it has been clearly stated that the petitioner has placed his left hand outside the bus. But the driver of the vehicle, which caused the accident and also its conductor have not given any proper caution to the petitioner. Under the said circumstances, 20% liability can be fixed upon the petitioner and the remaining 80% liability can be fixed upon the driver of the first respondent. 11. The learned counsel appearing for the first respondent/petitioner/cross objector has contended that the petitioner is nothing, but a coolie and he earned Rs.4,500/- per mensum, but the Motor Accidents Claims Tribunal has erroneously fixed his monthly income at Rs.3,000/- and therefore the same is liable to be enhanced. 12. Even though, a definite stand has been taken on the side of the petitioner to the effect that he earned monthly income of Rs.4,500/-, no document has been filed. Under the said circumstances, the monthly income fixed by the Motor Accidents Claims Tribunal is just and reasonable. The Motor Accidents Claims Tribunal after deducting one third has fixed Rs.2,000/- and in that way yearly income comes to Rs.24,000/-. The Motor Accidents Claims Tribunal has adopted multiplier method and also accepted 43% permanent disability and in that way it comes to Rs.1,65,120/-. 13. The Motor Accidents Claims Tribunal has fixed Rs.25,000/- towards pain and sufferings. Considering the fact that the petitioner has lost four fingers in his left hand, this Court is of the view to award Rs.50,000/- towards pain and sufferings. The https://hcservices.ecourts.gov.in/hcservices/ 4 Motor Accidents Claims Tribunal has awarded Rs.25,000/- towards loss of marital life, Rs.5,000/- towards nutrition, Rs.5,000/- towards transportation and Rs.5,000/- towards medical expenses. Considering the nature of injuries sustained by the petitioner, the amounts granted in respect of those items can easily be accepted and in aggregation, it comes to Rs.2,55,120/-. 14. It has already been pointed out that for the negligence of the petitioner, 20% can be deducted and in that way after deducting 20% from the total award amount of Rs.2,55,120/-, it comes to Rs.2,04,096/- and therefore the award passed in M.C.O.P.No.1388 of 2008 is liable to be modified and the Cross Objection is liable to be dismissed. Civil Miscellaneous Appeal No.842 of 2011: 15. In fine, this Civil Miscellaneous Appeal is allowed in part without costs and the award passed in M.C.O.P.No.1388 of 2008 by the Motor Accidents Claims Tribunal/Second Additional Sub Court, Trichy is modified as follows: The first respondent/petitioner is entitled to get Rs.2,04,096/- by way of compensation. In other aspect, the award passed by the Motor Accident Claims Tribunal/Second Additional Sub Court, Trichy is confirmed. Consequently, connected Miscellaneous Petition is closed. Cross Objection No.19 of 2011 16. In fine, this Cross Objection deserves dismissal and accordingly is dismissed without costs. Sd/- Assistant Registrar(Records) /TRUE COPY/ Sub Assistant Registrar To The Motor Accident Claims Tribunal/ Second Additional Sub Court,Trichy. +1cc to Mr.C.Jawahar Ravindran, Advocate SR.No.23930 +2ccc to Mr.B.Prasanna Vinoth, Advocate SR.No.24239 and 24240 COMMON JUDGMENT MADE IN C.M.A(MD)No.842 of 2011 and Cross Objection No.19 of 2011 and M.P(MD)No.1 of 2011 smn PA/09.08.2011/4P/5C https://hcservices.ecourts.gov.in/hcservices/