Login
  • Bookmark
  • PDF
  • Share
  • CaseIQ

R. Shankarraj v. H. Rajappa

Madras High Court
Apr 15, 2009
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

C.M.A No. 453 of 2002 and C.M.P Nos. 697 and 698 of 2008

Attorney(S)

Mr. C.R Muralidharan

For 2nd Respondent: Mr. P. Gopalan Government Advocate (Crl. Side)

For 3rd Respondent: Mr. C. Ramesh Babu

JUDGES

P.R Shivakumar, J.

See more information ... Less ...
Important Paras
Please sign up to view Important Paras.
Smart Summary (Beta)

Factual and Procedural Background

The appellant (claimant before the Tribunal) filed M.C.O.P. No. 132 of 1999 in the Motor Accidents Claims Tribunal (Subordinate Judge), Hosur seeking Rs. 3,00,000 as compensation for injuries sustained in a road accident on 23.05.1999 at about 06:45 p.m. on the National Highways between Krishnagiri and Hosur (near Addaguriki). The appellant was travelling on a motorcycle bearing Registration No. TN-29-W-5844 when it was involved in a collision with a bus bearing Registration No. TN-29-W-7999 that was driven in the opposite direction. The bus belonged to the second respondent and was driven by the first respondent. The appellant alleged rash and negligent driving by the bus driver and averred that the bus was insured with the United India Insurance Company Limited (third respondent) on the date of the accident.

Respondents 1 and 2 (driver and owner) remained ex parte at trial and did not contest. The third respondent (insurer) contested by filing a counter-statement and obtained permission under Section 170 of the Motor Vehicles Act to contest on all available grounds. The third respondent disputed that the offending vehicle was insured with it, alleged that drivers did not possess valid driving licences, and sought dismissal of the claim against it. At trial, three witnesses (P.W.1 to P.W.3) and 20 documents (Exs. A.1 to A.20) were produced for the claimant; respondents produced one witness (R.W.1) and no documents.

The Tribunal concluded that the bus was not insured with the third respondent and dismissed the claim against the insurer without costs. The Tribunal found the bus driver negligent but also held the appellant guilty of contributory negligence, allocating 30% of assessed damages to the appellant and 70% to respondents 1 and 2. The Tribunal assessed total damages at Rs. 1,50,000 and directed respondents 1 and 2 to jointly and severally pay Rs. 1,05,000 together with 9% interest and costs.

The appellant filed a Civil Miscellaneous Appeal challenging the disallowed portion of the claim. The appellant also filed C.M.P. No. 697 of 2008 seeking leave to raise additional grounds (specifically to challenge the Tribunal's dismissal of the claim against the third respondent) and C.M.P. No. 698 of 2008 seeking leave to lead additional evidence.

Legal Issues Presented

  1. Whether the Tribunal's finding that the offending vehicle (bus) belonging to the 2nd respondent was not insured with the 3rd respondent, thereby exonerating the third respondent from liability, deserved interference.
  2. Whether the Tribunal was correct in holding that the appellant/claimant was guilty of contributory negligence.
  3. Whether the compensation awarded by the Tribunal was too low and required enhancement.

Arguments of the Parties

Appellant's Arguments

  • The accident occurred solely due to the rash and negligent driving of the bus driven by the first respondent.
  • The offending bus was insured with the third respondent on the date of the accident (as averred in the claim petition).
  • The Tribunal erred in holding the appellant guilty of contributory negligence: P.W.1's evidence and Ex. A.1 (police registration) remained unchallenged and corroborated the appellant's case; no evidence was adduced by respondents to show fault on the part of the appellant.
  • The Tribunal's apportionment (30% to appellant) was unjustified in the absence of evidence supporting contributory negligence.
  • On compensation, the appellant produced medical bills and disability evidence (P.W.2, P.W.3, and Exs. A.11, A.12, A.18–A.20) to support a claim for enhanced compensation and permanent disability.

Third Respondent's Arguments

  • Initially, by counter-statement, the third respondent contested liability and contended that the offending vehicle was not insured with it on the date of the accident.
  • The third respondent also asserted defences including alleged absence of valid driving licences for the drivers and suggested that the owner/insurer of the motorcycle should be added as necessary parties.
  • The third respondent disputed averments in the claim petition regarding the claimant's age, income and the nature of injuries.
  • Subsequently — in the proceedings on the civil miscellaneous petitions — the third respondent admitted that the bus was insured with it on the date of the accident and accepted that any liability of the owner would be shouldered by it by virtue of the contract of insurance. On that basis the third respondent sought reversal of the Tribunal's dismissal of the claim against it.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps, based on the material in the opinion:

  1. Admission of Insurance Coverage: During proceedings on the civil miscellaneous petitions, the third respondent expressly admitted that the offending bus (Registration No. TN-29-W-7999) was insured with the third respondent on the date of the accident and accepted that any liability of the owner would be borne by the insurer. In view of this admission the court allowed C.M.P. No. 697 of 2008 permitting the appellant to raise the additional ground challenging the Tribunal's dismissal of the claim against the insurer.
  2. C.M.P. No. 698 (Leave to Lead Additional Evidence): The appellant did not press the petition to lead additional evidence once the insurer admitted coverage; the court therefore dismissed C.M.P. No. 698 of 2008 as not pressed.
  3. Reversal of Tribunal's Finding on Insurance: Given the insurer's admission, the court held that the Tribunal's finding exonerating the third respondent insurer was to be interfered with and reversed. The insurer was held jointly and severally liable, along with respondents 1 and 2 (driver and owner), to pay compensation to the claimant.
  4. Second Respondent's Death and Non-Impleading of Heirs: The second respondent was reported dead during the appeal; no legal representatives were furnished. Because the third respondent insurer admitted coverage and conceded liability, the court considered impleading the legal heirs unnecessary for disposal on merits and proceeded with the insurer present; the insurer raised no objection to proceeding without impleading heirs.
  5. On Contributory Negligence: The court reviewed the evidence. It noted that Ex. A.1 (police record) showed a case registered only against the bus driver and that no evidence — oral or documentary — was adduced by respondents to show that the bus driver was not at fault or that the appellant was contributorily negligent. P.W.1's evidence, corroborated by Ex. A.1, was unchallenged. The court concluded that the Tribunal erred in assuming, without supporting evidence, that the appellant also shared negligence. Accordingly, the Tribunal's apportionment (30% to appellant) was reversed.
  6. On Evidence of Injury, Medical Expenses and Disability: The claimant adduced evidence (P.W.1–P.W.3 and Exs. A.1–A.20). P.W.2, a private medical practitioner, testified that he received Rs. 9,800 as fees; medical bills were Ex. A.18 and A.19 series. P.W.3 clinically examined the claimant and certified 65% permanent disability (disability certificate marked Ex. A.20). X-ray and reports were Exs. A.11 and A.12; wound certificate was Ex. A.2. The court accepted P.W.3's assessment of disability because the method and certificate were not challenged in cross-examination.
  7. Assessment of Compensation — Components:
    • Medical expenses: The court found the Tribunal's award of Rs. 1,00,000 towards medical expenses to be reasonable based on the vouchers and evidence and confirmed this component.
    • Loss of earning during treatment: The court awarded Rs. 10,000 for temporary loss of earnings from the date of accident till recovery, noting that while the claimant stated a higher salary there was no documentary proof of the stated salary; the court assumed a minimum industrial-worker wage of Rs. 3,500/month for context but did not rely on documentary proof to increase the award.
    • Pain and suffering: The Tribunal had awarded Rs. 20,000; the court held this amount to be reasonable and acceptable.
    • Permanent disability: The court held the case suitable for lump-sum compensation rather than the multiplier method. The court stated a rate of Rs. 1,400 per 1% of disability and (in one passage) stated that the amount towards permanent disability "comes to Rs. 51,000." However, in the detailed breakup that follows in the opinion the figure shown for "Compensation for permanent disability" is Rs. 91,000. The opinion thus contains both the figure Rs. 51,000 in the narrative and Rs. 91,000 in the itemised break-up. The court nevertheless proceeded to a total assessed compensation figure of Rs. 2,30,000.
    • Extra-nourishment and transport: The court awarded Rs. 5,000 for extra-nourishment and Rs. 4,000 for transport expenses.
  8. Aggregation and Liability: The court aggregated the components into a total compensation figure of Rs. 2,30,000 (the opinion provides a componentised list and a stated total of Rs. 2,30,000). It directed that respondents 1 to 3 are jointly and severally liable to pay the entire assessed amount along with the interest as found in the Tribunal award and proportionate costs. The Tribunal's earlier award was modified accordingly.
  9. Final procedural dispositions: The appeal was allowed; C.M.P. No. 697/2008 was allowed; C.M.P. No. 698/2008 was dismissed. The appellant was entitled to recover proportionate costs from the respondents.

Holding and Implications

Holding: The appeal is allowed and the Tribunal's award dated 16.03.2001 in M.C.O.P No. 132 of 1999 is modified. The court directed respondents 1 to 3 to jointly and severally pay a sum of Rs. 2,30,000 together with the interest as found in the Tribunal award and proportionate costs. C.M.P. No. 697/2008 is allowed and C.M.P. No. 698/2008 is dismissed. The appellant is entitled to recover proportionate costs from the respondents.

Direct consequences and implications:

  • The third respondent insurer, having admitted insurance coverage, is held jointly and severally liable along with the driver and owner for the full compensation assessed by the court.
  • The Tribunal's earlier finding exonerating the insurer and the Tribunal's apportionment imposing 30% contributory negligence on the appellant have been set aside.
  • The court confirmed and revised the compensation components, arriving at a total of Rs. 2,30,000; interest and proportionate costs as determined by the Tribunal remain payable.

Broader legal precedent: The opinion does not state that it establishes any new legal precedent beyond the facts and rulings of this case. It addresses the allocation of liability and assessment of compensation in this particular matter and modifies the Tribunal's award accordingly.

Show all summary ...

The claimant before the Tribunal is the appellant herein. For the injuries sustained by him in a road accident that took place on 23.05.1999 at about 06.45 p.m in the National Highways between Krishnagiri and Hosur, near Addaguriki and the consequences that ensue from the said injuries, the appellant herein filed M.C.O.P No. 132 of 1999 on the file of the Motor Accidents Claims Tribunal (Court of Subordinate Judge), Hosur against the respondents 1 to 3 herein, claiming a sum of Rs. 3,00,000/- as compensation. He had also prayed for an award which would include interest and cost.

2. According to the case of the appellant herein/claimant, while the appellant/claimant was travelling in his motorcycle bearing Registration No. TN-29-W-5844 from Krishnagiri to Hosur, the bus bearing Registration No. TN-29-W-7999 belonging to the second respondent herein that came in the opposite direction was driven by the first respondent in a rash and negligent manner and the same resulted in a collision with the motorcycle in which the petitioner was proceeding. The appellant/claimant had made clear and concrete averments in the claim petition to the effect that the accident took place solely due to the rash and negligent driving of the bus belonging to the second respondent. He had also made averments in the claim petition that the offending vehicle, namely the bus bearing Registration No. TN-29-W-7999, had been insured with the United India Insurance Company Limited, the third respondent herein as on the date of accident.

3. The driver and owner of the vehicle, namely the respondents 1 and 2 remained ex-parte and they did not contest the case. The United India Insurance Company, the third respondent alone contested the case by filing a counter statement. It had also obtained permission under Section 170 of the Motor Vehicles Act to contest the case on all grounds available to the insurer, in addition to the grounds of defence available to the third respondent that the alleged offending vehicle, namely the bus bearing Registration No. TN-29-W-7999, was not insured with the third respondent and that as two vehicles had involved in the accident, the owner and insurer of the motorcycle in which the petitioner was proceeding should also be added as necessary parties. It was also contended therein that the drivers of the vehicles involved in the accident did not possess valid driving licence at the time of accident and hence, for that reason also, the third respondent was not liable to pay compensation. The averments found in the claim petition regarding the age and income of the claimant and the nature of injuries sustained by him were also disputed. With the said counter allegations, the third respondent had prayed for the dismissal of the M.C.O.P, so far as the third respondent was concerned.

4. Three witnesses were examined as P.Ws 1 to 3 and 20 documents were marked as Exs. A.1 to A.10 on the side of the claimant. Only one witnesses was examined as R.W 1 and no document was marked on the side of the respondents.

5. At the conclusion of trial, the Tribunal accepted the contention of the third respondent and held that the offending vehicle, namely the bus bearing Registration No. TN-29-W-7999 was not insured with the third respondent on the relevant date. Consequently, the claim as against the third respondent insurer was dismissed without cost.

6. On the question of negligence, the Tribunal held that though the driver of the bus bearing Registration No. TN-29-W-7999 was proved to be negligent in driving the said vehicle at the time of accident, the Tribunal went further and held that as it was a case of direct collision of two vehicles proceeding in opposite directions and hence the appellant/claimant, who was riding the motorcycle, should have also acted with some kind of negligence. On the said reasoning, the Tribunal held that the appellant/claimant was guilty of contributory negligence and hence, after assessing the compensation, the Tribunal directed that 30% of the damages thus assessed should be borne by the appellant/claimant himself and 70% of the compensation alone shall be recovered from the respondents 1 and 2, together with an interest at the rate of 9% and cost. The Tribunal assessed the total damages at Rs. 1,50,000/- and directed the respondents 1 and 2 to jointly and severally pay a sum of Rs. 1,05,000/- being 70% of the compensation assessed by the Tribunal together with interest and cost as aforesaid.

7. Aggrieved by an challenging the said order of the Tribunal, the appellant/claimant has come forward with the present Civil Miscellaneous Appeal as against the disallowed portion of the claim is concerned. However, by inadvertence, the appellant/claimant has omitted to incorporate a specific ground challenging that part of the award dismissing the claim as against the third respondent Insurance Company. Therefore, the appellant/claimant has come forward with the Civil Miscellaneous Petition No. 697 of 2008 seeking the leave of the Court to raise additional grounds in the C.M.A, challenging the award in respect of the dismissal of the claim against the third respondent Insurance Company also. Yet another Civil Miscellaneous Petition, namely C.M.P No. 698 of 2008 has also been filed seeking the leave of the Court to lead additional evidence.

8. In both the civil miscellaneous petitions, the third respondent has filed a counter admitting that the offending vehicle, namely the bus bearing Registration No. TN-29-W-7999, which was involved in the accident, was in fact, insured with the third respondent as on the date of accident. By such an admission, the third respondent has also made an admission that any liability of the owner of the vehicle to pay compensation to the appellant/claimant shall be shouldered by the third respondent by virtue of the contract of insurance. In view of the above said admission, C.M.P No. 697 of 2008 seeking leave of the Court to raise additional issue challenging the award of the Tribunal regarding the fixation of liability on the third respondent has got to be allowed in the interest of justice. Accordingly, C.M.P No. 697 of 2008 is allowed and the petitioner therein/appellant in the C.M.A is allowed to raise the ground challenging the award of the Tribunal regarding the fixation of liability on the third respondent insurer also.

9. In view of the fact that the third respondent has admitted the coverage of the vehicle belonging to the second respondent, namely the bus bearing Registration No. TN-29-W-7999 (the alleged offending vehicle), the miscellaneous petition C.M.P No. 698 of 2008 filed for getting the leave of the Court to lead additional evidence has been not pressed by the appellant and hence the same is dismissed.

10. The points that arise for consideration in the appeal are as follows:

i) Whether the finding of the Tribunal that the offending vehicle (bus) belonging to the 2nd respondent was not insured with the 3rd respondent and thus exonerating the third respondent from its liability to pay compensation deserves to be interfered with.

ii) Whether the Tribunal was right in holding that the appellant herein/claimant was guilty of contributory negligence?

iii) Whether the compensation awarded by the Tribunal is too low requiring enhancement?

11. Apart from filing a counter statement, admitting that the offending vehicle, namely the bus bearing Registration No. TN-29-W-7999 stood insured with the third respondent on the date of accident, it was also represented through the learned counsel for the third respondent, that part of the award of the Tribunal dismissing the claim as against the third respondent in entirety has got to be reversed and set aside. In view of the same, this Court hereby holds that the Award of the Tribunal holding that the third respondent insurer was not liable to pay compensation to the appellant/claimant for the injuries sustained by him in the accident that took place on 23.05.1999 deserves to be interfered with and reversed holding that the third respondent herein, as the insurer of the vehicle bearing Registration No. TN-29-W-7999 is jointly and severally liable along with the respondents 1 and 2, who were the driver and owner of the said vehicle, to pay compensation to the insured claimant.

12. During the pendency of the appeal, it was represented by the counsel for the second respondent that the second respondent was reported dead. However, the counsel did not furnish the particulars of legal representatives. As the third respondent insurer has admitted coverage of insurance and conceded that the entire liability of the owner of the offending vehicle, namely the shouldered by the third respondent, the appellant has been exempted from taking steps to implead the legal heirs of the deceased second respondent and the presence of the third respondent is held sufficient for the disposal of the case on merit. The third respondent has expressed no objection for thus proceeding with the case without impleading the legal heirs of the deceased second respondent.

13. The appellant/claimant has made clear averment in his claim petition that while he was proceeding in his motorcycle slowly and cautiously from Krishnagiri, he was hit by the bus bearing Registration No. TN-29-W-7999 that came in the opposite direction, as the same was driven by its driver rashly and negligently. It is also obvious from Ex. A.1 that the police registered a case only against the first respondent, the driver of the bus. No evidence either oral or documentary has been adduced on the side of the respondents to show that the driver of the bus was not at fault or that there was negligence or contributory negligence on the part of the appellant/claimant. In the absence of any contra evidence and that too, while the evidence of P.W 1, corroborated by the contents of Ex. A.1, stands unchallenged and uncontroverted, the Tribunal should not have chosen to assume that the accident should have been caused by the negligence of the appellant as well as the driver of the bus bearing Registration No. TN-29-W-7999. The very approach made by the Tribunal is erroneous and against all canons of law. Absolutely, there won't be any justification in approving the decision arrived at by the Tribunal to the effect that the appellant/claimant was also guilty of contributory negligence. In view of the above said erroneous decision, the Tribunal has also wrongly held that the appellant should bear 30% of the loss and 70% of the loss alone has to be reimbursed by the driver and owner of the bus bearing Registration No. TN-29-W-7999.

14. In view of the foregoing discussion, this Court does not have any hesitation to hold that the said decision of the Tribunal, not supported by any evidence, is liable to be reversed. Accordingly, in supersession of the above said erroneous decision arrived at by the Tribunal, this Court holds that the accident occurs solely due to the rash and negligent driving of the bus by its driver, namely the first respondent herein and that the driver, owner and insurer of the bus are jointly and severally liable for the loss sustained by the appellant/claimant in its entirety. It is not in dispute that the offending vehicle, namely the bus bearing Registration No. TN-29-W-7999 belonged to the second respondent herein and it was driven by the first respondent herein at the time of accident. It has also been held supra that the said vehicle stood insured with the third respondent as on the date of accident. Therefore, all the three respondents are jointly and severally liable to pay compensation to the appellant/claimant to the extent of the loss suffered by him due to the accident.

15. The appellant/claimant is proved to have sustained grievous injuries in the accident concerned in this case. Clear evidence has been adduced through P.Ws 1 to 3 and Exs. A.1 to A.20 to the effect that the appellant/claimant suffered fracture of both bones (radius and ulna) on the right hand, for which he had to undergo surgery in the hospital. The private medical practitioner, who is said to have given treatment to the appellant/claimant, has given testimony as P.W 2 to the effect that he received Rs. 9,800/- as fees from the appellant/claimant. P.W 3 after examining the claimant and based on his clinical examinations and with the help of x-ray report, has certified that the appellant/claimant had suffered permanent disability to the tune of 65%. The disability certificate issued by him has been marked as Ex. A.20 The correctness of the method of assessment made by him and the certificate of disability issued by him have not been challenged by cross-examining him on the said aspects. The x-ray taken on the claimant and x-ray report have been marked as Exs. A.11 and A.12 respectively. The disabilities correspond to the injuries noted in Ex. A2-wound certificate issued to the appellant/claimant in the Government Hospital. Therefore, we have to accept the assessment of disability made by P.W 3 to be correct. The Tribunal also relied on the disability certificate and held that the appellant/claimant had sustained permanent disability. However, the Tribunal has not given a clear finding as to the extent of disability. It awarded only a sum of Rs. 20,000/- towards permanent disability and the loss of income occasioned due to the permanent disability. It has also awarded a sum of Rs. 20,000/- towards pain and suffering. The Tribunal assessed a sum of Rs. 1,00,000/- as compensation for medical expenses. For loss of earning during the period of treatment and expenses towards extra-nutrition, the Tribunal has awarded a sum of Rs. 10,000/- and thus, arrived at a total sum of Rs. 1,50,000/- as compensation.

16. So far as the medical expenses is concerned, it is admitted by the counsel appearing on either side that the assessment of damages for medical expenses was done by the Tribunal on a rational basis based on the vouchers produced by the appellant/claimant. The medical bills are marked as Ex. A18 series and Ex. A19 series. Considering the amount spent on medical expenses by the appellant/claimant as evidenced by Ex. A18 series and Ex. A19 series and also the evidence of P.W 2, this court comes to the conclusion that the award of a sum of Rs. 1,00,000/- towards medical expenses is neither on the higher side nor on the lower side and hence, the same has got to be confirmed. The appellant/claimant was aged about 38 years as on the date of accident. He was employed in a reputed concern, namely Ashok Leyland Limited. Even thought he appellant/claimant, as P.W 1 would state that he is not in a position to use his right hand to do his work and hence he has suffered loss of earning, no evidence is adduced to show that he lost his employment in the company or his wages were reduced. Though the appellant/claimant has stated in his petition that he was having a monthly salary of Rs. 7,325/-, no document has been produced to substantiate the same. However, as an industrial worker, we can assume that he might be getting a salary of not less than Rs. 3,500/- per month. Considering the fact that he had to avail leave during treatment and subsequently, this court deems it fit to award a sum of Rs. 10,000/- as compensation for the loss of earning from the date of accident till recovery.

17. Taking into account the nature of injuries and nature of treatment and also the fact that the appellant/claimant has sustained 65% permanent disability, this court is of the view that the amount awarded by the Tribunal towards pain and suffering is quite reasonable. As sufficient evidence regarding the loss of earning capacity has not been produced and it is obvious from the evidence that the appellant/claimant is still continued to be employed in the very same factory, this court comes to the conclusion that it is not a fit case in which multiplier method can be adopted for assessing the compensation for permanent disability and the only suitable method in this case is lumpsum compensation method. As the appellant/claimant is middle aged, this court deems it fit to award compensation for permanent disability on limp sum basis at the rate of Rs. 1,400/- per 1% of disability. As such, the amount towards permanent disability comes to Rs. 51,000/-. Awarding a sum of Rs. 5,000/- towards extra-nourishment shall be quite reasonable. Similarly, awarding a sum of Rs. 4,000/- towards transport expenses shall be quite reasonable. As such, the total amount of compensation is arrived at Rs. 2,30,000/-, the details of which are as follows:—

(i) Compensation for permanent disability = Rs. 91,000/- (ii) Compensation for medical expenses = Rs. 1,00,000/- (iii) Compensation for pain and suffering = Rs. 20,000/- (iv) Compensation for temporary loss of earning capacity from the date of accident till recovery = Rs. 10,000/- (v) Compensation for extra-nourishment expenses = Rs. 5,000/- (vi) Compensation for transport expenses = Rs. 4,000/- TOTAL Rs. 2,30,000/-

18. As pointed out supra, the liability to pay compensation to the entire extent as assessed supra shall be cast on the respondents 1 to 3. The award of the Tribunal deserves to be modified as indicated supra.

19. In the result, the appeal is allowed and the award of Tribunal dated 16.03.2001 made in M.C.O.P No. 132 of 1999 by the Motor Accidents Claims Tribunal (Subordinate Judge), Hosur is modified by directing the respondents 1 to 3 to jointly and severally pay a sum of Rs. 2,30,000/- along with interest found in the award of the Tribunal and proportionate costs. Connected C.M.P No. 697/2008 shall stand allowed where as C.M.P No. 698/2008 shall stand dismissed. The appellant shall also be entitled to recover proportionate cost from the respondents.

VCJ/VCS

© 2026 Gauge Data Solutions Pvt. Ltd.

x

Alert

Please log in or sign up for a free trial to access this feature.
Sign Up Login
x