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BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, GUDIYATHAM,

VELLORE DISTRICT.

(IN THE COURT OF THE SUBORDINATE JUDGE, GUDIYATHAM,

VELLORE DISTRICT)

Present:- Thiru.N.Sachidhanantham,L.L.M.,
Subordinate Judge,
Gudiyatham.

Friday, the 3rd day of September 2021

M.C.O.P. No.126/2018
CNR.No.TNVLOF0004822018
Anwar ..Petitioner
Vs

1.Venkatachalam
2.The Divisional Manager, National Insurance
Company Ltd, Vellore ..Respondents

This petition came up before me for final hearing on 19.08.2021

in the presence of Thiru.S.Santhakumar, Counsel for the Petitioner, notice served

to respondents and were called absent and set exparte, upon hearing the petitioner

side arguments and having stood over for consideration, this court delivers the

following:-

ORDER
The petitioner has filed this petition as against the respondents under

Section 166 of Motor Vehicles Act,1988 claiming of Rs.8,00,000/- together with

interest at the rate of 18% per annum for the injuries sustained by him due to the

motor vehicle accident that took place on 03.03.2016.

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2. Brief averments of the petition are as follows:-

On 03.03.2016, at 0.30 p.m when the petitioner was traveling as a pillion

rider in a two wheeler bearing Reg.No.TN-23-BB-8329 along with Dhandapani

near Reliance petrol bunk at Katpadi koot road, a Lorry bearing Reg.No.TN-34-

W-2773 driven by its driver in a rash and negligent manner and dashed against

the petitioner as a result which the petitioner has sustained grievous injuries and

he was taken to Government Hospital, Gudiyattam and he referred to

Adukkambarai Hospital, Vellore. Before the accident the petitioner was hale and

healthy and is still undergoing treatment. The 1 st respondent is the owner of the

offending vehicle and 2nd respondent is insurer of the offending vehicle.

Therefore, the respondents are liable to pay compensation of a sum of

Rs.8,00,000/- to the petitioner with interest. Hence this petition.

3.Notice served to the respondents and were called absent, set exparte.

4. Points for consideration :-

1.Whether the accident took place only due to the rash and
negligent driving of the driver of the Lorry bearing Reg.No.TN-34-
W-2773 ?

2.Whether the respondents are liable to pay compensation to the

petitioner ?

3. If yes, what is the quantum of compensation the petitioner is entitled

for ?

5). On the petitioner side, the petitioner was examined as PW1 and

through his evidence Ex.P1 to P7 were marked and the disablement certificate of

the petitioner has been marked as Ex.P8.

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6. Point No.1 and 2:

The learned counsel for the petitioner would submit that the petitioner

sustained grievous injuries in a road accident which took place on 03.03.2016, at

0.30 p.m when the petitioner was traveling as a pillion rider in a two wheeler

bearing Reg.No.TN-23-BB-8329 due to the rash and negligent driving of the

driver who drove a Lorry bearing Reg.No.TN-34-W-2773 and further submitted

that since the respondents are owner and insurer of the offending vehicle they are

liable to pay compensation to the petitioner.

7. Heard the arguments of the learned petitioner counsel and perused the

records. To substantiate the case of petitioner, the following documents were

marked. Ex.P1 is the true copy of FIR from which it is seen that a criminal case

was registered in Cr.No.130/2016 under Section 279 and 337 of IPC as against

the driver of the Lorry bearing Reg.No.TN-34-W-2773. Ex.P2 is the True copy

of insurance policy. Ex.P3 is the true copy of accident register of the petitioner.

Ex.P4 is the discharge summary of the petitioner issued by the Government

Vellore Medical College Hospital, Vellore. Ex.P5 is the true copy of Motor

Vehicle Inspection report of the Lorry.Ex.P6 and Ex.P7 are xerox copies of

Aadhar card and bank passbook (compared with originals) of the petitioner.

Ex.P8 is the disability certificate of petitioner received from the Medical Board,

Vellore.
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8. It is evidently seen from Ex.P1, the certified copy of the FIR, that a

criminal case was registered as against the driver of the Lorry bearing

Reg.No.TN-34-W-2773. The oral evidence of PW1 and the from documents, it is

seen that the accident was occurred only due to the rash and negligent driving of

the Lorry bearing Reg.No.TN-34-W-2773. The respondents have not chosen to

adduce any rebuttal evidence to disprove the case of the petitioner and they

remained exparte. Therefore, this court is of the considered view that the accident

was occurred only due to the rash and negligent driving of the driver of the 1 st

respondent herein.

9. On perusal of Ex.P2, copy of insurance policy, it is evident that the

offending vehicle was insured with 2nd insurance company. Hence the 1st

respondent is vicariously liable to pay compensation to the petitioner. The 2 nd

respondent has not come forward and prove that there is breach of policy

conditions by adducing oral or documentary evidence by remained exparte. It is

well settled principle of law that even when the insurer is able to prove the

breach on the part of the insured concerning a policy condition, the insurer would

not be allowed to absolve its liability towards the insured unless the said breach

of condition is so fundamental as to be found to have contributed to the cause of

the accident. Therefore, it is held that since the accident took place only due to

the rash and negligent riding of the driver of the offending vehicle Lorry bearing

Reg.No.TN-34-W-2773, the 2nd respondent has to pay the compensation and thus

Point Nos.1 and 2 are answered accordingly.

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10.Point No. 3 :-
If yes, what is the quantum of compensation the petitioner is entitled
for ?

It is seen from Ex.P4 discharge summary of the petitioner issued by

Govenment Vellore Medical College, Vellore that the petitioner has sustained a

fracture fibula junction of distal middle 1/3rd left leg and he has taken treatment

in the above said hospital on 03.03.2016 and discharged on 04.03.2016. The

petitioner has not filed any documents to show that he has taken further treatment

in any of the hospitals or medical bills towards medical expenses incurred by

him.

11. In order to assess the disability, the petitioner has appeared before the

Medical Board, Government Vellore Medical College and Hospital, Vellore and

obtained disablement certificate Ex.P8. From, ExP8, it came to understand that

the petitioner has been assessed with 10% disability. The respondent has not

chosen to produce any evidence to contradict the same. Therefore, this court

accepts the percentage of disablement of the petitioner as 10%.

AGE AND INCOME:

12.As per petition averments the petitioner was aged 21 years when at the

time of accident and as per Ex.P5 Aadhar card of the petitioner, it has been

mentioned that the date of birth of the petitioner is 1995. It is his own document

and therefore, this court is inclined to determine the age of petitioner when at the

time of accident took place as 21 years.

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13. According to the petitioner he was doing business during the period of

accident and he was earning a sum of Rs.15,000/- per month however he has not

chosen to produce any acceptable evidence to show earning. In the absence of any

such evidence, the petitioner was earning a sum of Rs.15,000/- by doing business

is unacceptable. However, this tribunal relied upon the principle laid down in the

case of Syed Sadia /Vs/ United India Insurance Company (2014(1) TN MAC 459)

wherein it was held, even a vegetable vendor income was fixed as Rs.6500/- who

sustained injuries in the year 2008. In the present case, accident took place on

03.03.2016. Considering the present scenario on cost of living it is appropriate

and reasonable to this tribunal to fix the income of the petitioner as Rs.9,000/- per

month.

14. Therefore, for the foregoing reasons the petitioner is entitled to get
compensation under the following heads:-

LOSS OF EARNING:-
The petitioner had sustained fracture fibula junction of distal middle 1/3rd

left leg due to the accident and he has taken treatment in the Government

hospital, Vellore. Due to the injuries sustained in the accident he would have

been prevented from attending his regular work to a maximum of one month.

Hence a sum of Rs.9,000/- is awarded under this head.

TRANSPORTATION TO HOSPITAL :-
Taking into account the distance from the place of accident to the Hospital

and the petitioner's residence and considering the nature of injuries this court is

inclined to award a sum of Rs.5,000/- under this head.

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EXTRA NOURISHMENT :-
Considering the nature of injury sustained by the petitioner and the period

of treatment, a sum of Rs.5,000/- is awarded under this head.

ATTENDER CHARGES:-
Since the petitioner has sustained fracture fibula junction of distal middle

1/3rd left leg due to the accident and he has taken treatment, definitely he would

have needed the help of an attender and without the assistance of attender it was

not possible to him to even move. Therefore, this court is inclined to award a

sum of Rs. 5,000/- under this head.

PAIN AND SUFFERING :-

Keeping in mind as to the nature of injuries sustained and the age of the

petitioner and also for the period of treatment undergone this court is inclined to

award a sum of Rs.10,000/- under this head.

COMPENSATION FOR DISABILITY:-

As discussed supra, the petitioner’s disability has been assessed as 10% as

per Ex.P8 and the same is accepted by this tribunal. This tribunal relied upon the

judgment of Hon'ble High Court, Madras in M.Chinnathambi /Vs/ S.Deepa and

another reported in 2020(1) TN MAC 617, it has been held that:

"This Court by the Judgment reported in the matter of National Insurance

Co. Ltd., Vs.G.Ramesh (2013(2) TN MAC 583, granted Rs.3,000/- per percentage
for accident occurred in the year 2009, enhancing from Rs.2,000/- per percentage
taking into account the cost of living at that time. Due to passage of time, a sum of
Rs.3,000/- per percentage of disability awarded in the year 2013 for the accident
of the year 2009 is to be enhanced. Taking into consideration the raise in cost of
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living, it will be reasonable to award a sum of Rs.4,000/- per percentage for the
accident of the year 2014 and 2015 and Rs.5,000/-per percentage for the accident
from the year 2016 onwards towards disability certified by the qualified Doctor of
Medical Board".
In the present case the accident was occurred on 03.03.2016. Hence, this

tribunal has fixed Rs.5,000/- per percentage of disability in view of the dictum

laid down in the above judgment. Thus Rs.5,000 X 10 = Rs.50,000/- is awarded

under this head.

The petitioner is entitled to the following compensation under various

heads as follows :-

Loss of earning Rs. 9,000 /-

Transportation to Rs. 5,000/-

Hospital

Extra Nourishment Rs. 5,000/-

Attender Charges Rs. 5,000/-

Pain and Suffering Rs. 20,000/-

Compensation for Rs. 50,000/-

continuing permanent
disability

Total Rs.94,000/-

In toto, the petitioner is entitled to a sum of Rs.94,000/-towards

compensation and thus the Point No.3 is answered accordingly.

In the result, this petition is partly allowed with costs and the petitioner is
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entitled to get a sum of Rs.94,000/- as compensation with interest at the rate of

7.5% p.a. from the date of filing of this petition till the date of deposit. The 2 nd

respondent is directed to deposit the award amount with interest and costs in the

Bank Account of Gudiyattam, Motor Accident Claim's Tribunal A/c

No.36445609781 through RTGS or NEFT mode as held by the Hon'ble High

Court, Madras in, The Oriental Insurance Company Limited Kannur /Vs/ Rajesh

and 2 Others, (2016(1) TN MAC 433) within two months from the date of this

award and also shall give intimation to this tribunal by way of sending pay advice

slip. The petitioner is entitled to receive the award amount with interest and costs

from this court in full quit.

Directly dictated to steno-typist, computerized by her, corrected and

pronounced by me in the open court, on this the 3rd day of September 2021.

Subordinate Judge,
Gudiyatham.
LIST OF WITNESSES ON PETITIONER SIDE:-

PW1 Anwar
LIST OF DOCUMENTS ON PETITIONER SIDE:
Ex.P1 03.03.2016 True copy of the F.I.R.
Ex.P2 Xerox copy of insurance policy

Ex.P3 03.03.2016 Certified copy of accident register extract of the

petitioner issued by Government Hospital,
Gudiyattam
Ex.P3 11.08.2016 Certified copy of motor vehicle inspection
report of the offending vehicle

Ex.P4 04.03.2016 Discharge summary of the petitioner issued by

Government Medical College and Hospital, Vellore
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Ex.P5 04.03.2016 True copy of Motor Vehicle Inspection Report

Ex.P6 Xerox copy of the Aadhar card of the

petitioner( compared with original)

Ex.P7 Xerox copy of bank pass book of the petitioner

( compared with original)

Ex.P8 06.12.2019 Disability certificate of petitioner received from

the Medical Board, Vellore

LIST OF WITNESSES ON THE RESPONDENTS SIDE :- NIL

LIST OF DOCUMENTS ON THE RESPONDENTS SIDE :- NIL

Subordinate Judge,
Gudiyatham.