ELANGOVAN vs RAJENDIRAN
- Court
- Madras High Court
CMA No. 3107 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28-10-2026
CORAM
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
CMA No. 3107 of 2024
CNR: {HCMA011495882023}
Elangovan
..Appellant(s)
Vs
1. Rajendiran
2. Pachaiyammal
3. The Manager
The Oriental Insurance Company Ltd,
No.32/312, Vijayalakshmi Complex,
13th Street, Sathuvacheri, Vellore 9.
4. The Manager
TATA AIG General Insurance Company Ltd,
No.1, Ethiraj Salai, Egmore, Chennai 8.
..Respondent(s)
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988, praying to enhance the compensation amount awarded in the
Judgment and Decree dated 25.07.2022 made in MCOP.No.641 of 2017 on the
file of the Motor Accident Claims Tribunal Judge/the Special Sub
Judge(MCOP), Tiruvannamalai, by allowing this Civil Miscellaneous Appeal.
For Appellant(s): Mr.S.Panneer Selvam
For Respondent(s): R1 and R2 – No appearance
Mr. M. Krishnamoorthy (For R3)
Mr.K.Vinod (For R4)
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CMA No. 3107 of 2024
JUDGMENT
For the sake of convenience, the parties are referred to herein by their
respective ranks before the Tribunal.
2. Unsuccessful claimant has preferred the present appeal seeking
enhancement of compensation.
3. The claim petition has been filed under Section 166 of the Motor
Vehicles Act [hereinafter referred to as ‘the MV Act’], seeking compensation
for the injuries sustained by the claimant in a road accident. According to the
nd
claimant, on 06.06.2017, at about 1.45 p.m., he was riding the 2 respondent’s
auto bearing Registration No.TN 32 AK 8031 from Villupuram to Tirukoilur on
the extreme left side of the road, in soil path on Villupuram–Tirukoilur Road.
While he was going near the bus stop of Kadaganur Village, at that time, the
driver of a Tata Ace bearing Registration No.TN 25 AA 1150, drove the said
Tata Ace from opposite direction in a rash and negligent manner, dashed against
the claimant's auto and caused the accident. Due to the accident, the claimant
sustained multiple fractures in his right thigh, right knee and injuries in his face,
right hand, right leg, head and injuries all over his body.
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4. According to the claimant, the offending vehicle involved in the
accident belonged to the first respondent and the same was insured with the
third respondent. The auto, which was driven by the claimant belonged to the
second respondent and was insured with the fourth respondent at the time of the
accident.
5. The first and second respondents appeared through counsel but did not
file their counter statements. Hence, they were called absent and set ex parte
before the Tribunal.
6. The third respondent / Insurance Company has filed a counter
statement, denying the manner of the accident. As per the FIR, the accident
nd
took place only due to the rash and negligent driving of the 2 respondent’s
vehicle namely auto by the claimant himself. Hence, the fourth respondent was
liable to pay compensation to the claimant and not the third respondent. It was
nd
further contended that the driver of the Auto belongs to 2 respondent, did not
possess a valid and effective driving licence and badge to drive the auto at the
time of the accident.
7. The fourth respondent also filed a counter statement, wherein it has
been stated that the accident was occurred due to the rash and negligent driving
of the driver of the first respondent's vehicle bearing Registration No.TN 25 AA
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1150. It was further contended that, if any compensation found payable, it is to
be awarded only as against the first respondent.
8. Before the Tribunal, on behalf of the claimant, the claimant himself
examined as P.W.1 and Exs.P1 to P8 were marked. The Disability Certificate
issued by the Medical Board was marked as Ex.C1. On behalf of the third
respondent, R.W.1 was examined and Ex.R1 was marked.
9. Upon appreciation of the evidence adduced on either side, the Tribunal
held that the accident was occurred due to the rash and negligent driving of the
driver of the offending vehicle. However, it also found that, at the time of
accident, the claimant did not possess a valid and effective driving licence and
fixed 50% contributory negligence on the part of the claimant and 50%
negligence on the part of the driver of the first respondent's vehicle.
10. The Tribunal further found that the claimant had sustained “Fracture
right femur with internal fixator fracture right patella inferior angle” and the
same is mentioned in Ex.C1 / Disability Certificate and that the Medical Board
had assessed his permanent disability at 40%. By applying the ratio laid down
by the this Court in the case of M.Chinnathambi Vs. S.Deepa and another
reported in 2020 (1) TN MAC 617 , the Tribunal adopted the rate of Rs.5,000/-
per percentage of disability and awarded Rs.2,00,000/- (Rs.5,000/- × 40) under
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the head of permanent disability. The Tribunal has also awarded compensation
under various other heads and the same is extracted hereunder:
Sl.No. Heads Amount granted by the Tribunal
(Rs.)
1 Disability (40%) Rs.2,00,000/-
2 Pain and Sufferings Rs.50,000/-
3 Extra Nourishment Rs.10,000/-
4 Medical Expenses Rs.43,277/-
5 Attender Charges Rs.10,000/-
6 Transportation Expenses Rs.10,000/-
7 Loss of Amenities Rs.50,000/-
8 Loss of Income during the
Rs.36,000/-
treatment Period
Total Rs.4,09,277/-
11. Aggrieved over the same, the claimant has preferred the present
appeal, seeking enhancement of compensation and also challenging the fixation
of 50% contributory negligence on his part.
12. The learned counsel appearing for the appellant/claimant would
submit that the Tribunal erred in fixing 50% contributory negligence on the part
of the claimant on the ground that he did not possess a valid and effective
driving licence to drive the vehicle at the time of the accident. The learned
counsel would further submit that, in similar circumstances, the Hon'ble
Supreme Court and this Court have fixed contributory negligence at 10% only.
13. The learned counsel would further submit that the Tribunal erred in
fixing Rs.5,000/- per percentage of disability without considering that the
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accident took place in the year 2017. Therefore, the Tribunal ought not to have
fixed Rs.5,000/- per percentage of disability. It is further contended that, at the
time of the accident, the claimant was aged about 38 years and was working as a
driver. However, without considering the same, the Tribunal fixed his monthly
notional income at Rs.9,000/-, which is meagre and the same is to be enhanced.
The learned counsel would also contend that the compensation awarded under
the other heads also has to be enhanced.
14. Per contra, the learned counsel appearing for the respondent /
Insurance Company would submit that a criminal case was registered against
the claimant and that, at the time of the accident, the claimant did not possess a
valid and effective driving licence to drive the vehicle. It was further submitted
that the claimant himself was a tortfeasor. An official from the Regional
Transport Office, Villupuram, was examined as R.W.1, and through his
evidence, it was established that there was no driving licence issued to the
claimant from their office. In such circumstances, the learned counsel would
submit that the Tribunal rightly fixed 50% contributory negligence on the part
of the claimant on the ground that he did not possess a valid and effective
driving licence. The compensation awarded by the Tribunal under the various
heads appears to be reasonable and proper and does not warrant any interference
by this Court.
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15. This Court has considered the submissions made by the learned
counsel appearing on either side and perused the records carefully.
16. According to the claimant, on 06.06.2017, at about 1.45 p.m., he was
nd
riding the 2 respondent’s Auto from Villupuram towards Tirukoilur in a soil
path on Villupuram–Tirukoilur Road. While he was going near the bus stop of
Kadaganur Village, the driver of the Tata Ace, coming from the opposite
direction, drove the vehicle in a rash and negligent manner, dashed against the
claimant's auto and caused the accident.
17. In order to prove the above said facts, the claimant examined himself
as P.W.1 and narrated the manner of the accident.
18. According to the third respondent / Insurance Company, the claimant
did not possess a valid and effective driving licence to drive the vehicle at the
time of the accident. In order to prove the said contention, the third respondent
has examined an official from the Regional Transport Office, Villupuram, as
R.W.1. A perusal of the evidence of R.W.1 reveals that no driving licence had
been issued to the claimant from their office. It is relevant to note that the
claimant has not produced his driving licence before the Tribunal to substantiate
that he was qualified to drive the auto on the date of the accident.
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19. It is also relevant to note that, in order to substantiate the alleged
negligence on the part of the claimant, the third respondent has not examined
either the driver of the Tata Ace or any independent witness. Ex.R1 is the letter
issued by the Regional Transport Office regarding the driving licence details of
the claimant. As per evidence of R.W.1 and Ex.R1, reveals that at the time of
accident, the claimant did not possess a driving licence issued by the said office.
20. It is to be noted that when a person, driving the vehicle without a
valid driving licence amounts to a violation of the applicable traffic regulations.
A perusal of Ex.P1 / FIR reveals that a criminal case was registered against the
claimant on the basis of the complaint lodged by the driver of the Tata Ace on
07.06.2017.
21. It is relevant to note that the accident took place on 06.06.2017. A
perusal of Ex.P7, the complaint given by the claimant to the District
Superintendent of Police, Villupuram, reveals that the same was dated
22.06.2017. It is to be noted that the accident took place on 06.06.2017.
However, the claimant has chosen to address a complaint to the District
Superintendent of Police, Villupuram on 22.06.2017, only after the a lapse of 15
days.
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22. Considering the above facts and circumstances, particularly the
evidence regarding the absence of a driving licence and the absence of direct
evidence from the driver of the Tata Ace or any independent witness, this Court
is of the considered opinion that the fixation of 50% contributory negligence on
the part of the claimant by the Tribunal requires reconsideration. Hence, this
Court is inclined to fix 10% contributory negligence on the part of the claimant.
Accordingly, the finding of the Tribunal, fixing 50% contributory negligence on
the part of the claimant is set aside, and this Court fixes the contributory
negligence of the claimant at 10%.
23. With regard to the quantum of compensation, it is relevant to note that
the claimant has appeared before the Medical Board for assessment of his
disability. The Medical Board assessed the disability of the claimant and issued
Ex.C1/ Disability Certificate. A perusal of Ex.C1 reveals that the claimant has
sustained “Fracture right femur with internal fixator fracture right patella
inferior angle” and that the Medical Board assessed his permanent disability at
40%.
24. It is relevant to note that, in the absence of proof of functional
disability and evidence of loss of earning capacity, the Tribunal rightly adopted
the percentage method for assessing compensation under the head of permanent
disability.
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25. The accident took place on 06.06.2017 and at the time of accident, the
claimant was aged about 38 years and considering the year of the accident and
the nature of the injuries sustained by the claimant, this Court is inclined to fix
the compensation at Rs.7,000/- per percentage of disability. Accordingly, the
compensation under the head of permanent disability is enhanced to
Rs.2,80,000/- (Rs.7,000/- × 40%).
26. It is relevant to note that, according to the claimant, he was working
as a driver of the auto and was earning Rs.20,000/- per month at the time of the
accident. However, in the absence of proof of his monthly income, the Tribunal
fixed his notional monthly income at Rs.9,000/-.
27. Considering fact that the accident took place in the year 2017 and that
the claimant was aged about 38 years at the time of the accident, this Court is
inclined to fix the notional monthly income of the claimant at Rs.15,000/-.
28. Considering the nature of the injuries sustained by the claimant, this
Court is of the view that he would have been unable to resume his work for a
minimum period of four months. Hence, the amount of Rs.9,000/- per month
fixed by the Tribunal under the head of loss of income during the treatment
period appears to be meagre. Accordingly, the compensation under the said
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head is enhanced to Rs.60,000/- (Rs.15,000/- × 4 months).
29. It is relevant to note that a perusal of Exs.P4 and P5 / Discharge
Summary reveals that the claimant underwent treatment at the Government
Medical College Hospital, Villupuram as an inpatient from 06.06.2017 to
09.06.2017 for four days. Thereafter, he underwent further treatment at Sriram
Hospital, Tirukoilur from 09.06.2017 to 14.06.2017 for six days. The claimant
also underwent surgery.
30. Considering the nature of the injuries sustained and the treatment
undergone by the claimant, he would have incurred additional expenditure
towards extra nourishment. The Tribunal awarded Rs.10,000/- under the head of
extra nourishment, which appears to be meagre. Hence, this Court is inclined to
enhance the compensation under the said head to Rs.20,000/-.
31. The compensation awarded by the Tribunal under the heads of pain
and suffering, medical expenses, attendant charges, transportation expenses and
loss of amenities appears to be reasonable and proper and does not warrant any
interference by this Court.
32. In the light of the above discussion, the compensation awarded by the
Tribunal is modified and enhanced as follows:
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CMA No. 3107 of 2024
Sl.No. Heads Amount granted by the
Amount granted by
Tribunal (Rs.)
this Court (Rs.)
1 Disability (40%) Rs.2,00,000/- Rs.2,80,000/-
2 Pain and Sufferings Rs.50,000/- Rs.50,000/-
3 Extra Nourishment Rs.10,000/- Rs.20,000/-
4 Medical Expenses Rs.43,277/- Rs.43,277/-
5 Attender Charges Rs.10,000/- Rs.10,000/-
6 Transportation
Rs.10,000/- Rs.10,000/-
Expenses
7 Loss of Amenities Rs.50,000/- Rs.50,000/-
8 Loss of Income during
Rs.36,000/- Rs.60,000/-
the treatment Period
Total Rs.4,09,277/- Rs.5,23,277/-
33. In the result, the Civil Miscellaneous Appeal is partly allowed. The
compensation awarded by the Tribunal is enhanced from Rs.4,09,277/- to
Rs.5,23,277/-. After deducting 10% contributory negligence, the net
compensation is a sum of Rs.4,70,949.30/-, which is Rounded off to
Rs.4,70,949/- (Rupees Four Lakhs Seventy Thousand Nine Hundred and
Forty Nine only) together with interest @ 7.5% per annum from the date of
filing of claim petition till the date of deposit. The third respondent/ Insurance
Company, is directed to deposit the entire award amount now determined by
this Court along with interest and costs, less the amount already deposited, if
any, within a period of six (6) weeks from the date of receipt of a copy of this
judgment, to the credit of MCOP.No.641 of 2017 on the file of the Hon’ble
Motor Accident Claims Tribunal/the Special Sub Judge, Tiruvannamalai. On
such deposit, the claimant/appellant is permitted to withdraw the award amount
now determined by this Court, along with interest and costs, less the amount, if
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any, already withdrawn, by making proper application before the Tribunal. The
other directions issued by the Tribunal with regard to the mode of payment of
compensation remains unaltered. The manner and mode of disbursement of
compensation shall be as per the order of the Tribunal. However, it is made
clear that the claimant is not entitled for interest for the period of delay, if any,
as ordered by this Court earlier. The appellant is directed to pay the necessary
Court fee, if any, on the enhanced compensation. No costs.
28-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
kak
To
1. The Motor Accident Claims Tribunal Judge
/the Special Sub Judge(MCOP),
Tiruvannamalai.
2. The Section Officer,
V.R.Section, High Court,
Madras.
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CMA No. 3107 of 2024
M.JOTHIRAMAN, J.
kak
CMA No. 3107 of 2024
28-10-2026
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