S.DHILIP RAJ Vs. K.JAYAKUMAR

JUDGEMENT

(1.) The petitioner not being satisfied with the quantum of compensation awarded by the Tribunal in MCOP No.329 of 2021, dtd. 8/3/2024 has preferred this appeal seeking for enhancement of compensation.

(2.) The case of the petitioner is that on 24/11/2020 at about 07.05 hours, the petitioner was riding a container Eicher vehicle bearing Regn. No. TN-29 AJ4322 with full load of tube lights from Nanguneri to Bangalore, while he is reaching Kuppur Division road, a tanker lorry bearing Regn. No.TN-28 K-5693, driven by its driver in front of his vehicle was pouring water to the plants planted in the median, near Salem to Bangalore Highway Road, suddenly stopped the vehicle, due to which, the petitioner attempted to turn vehicle on the left side, as a result of which, he dashed on the rear side of tanker lorry and caused an accident. Due to which, the petitioner sustained injuries, for which he underwent treatment in the hospital. Under these circumstances, the claim petition came to be filed before the Tribunal seeking for payment of compensation of Rs.30,00,000.00.

(3.) The Tribunal on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the accident had taken place only due to the rash and negligent driving on the part of the petitioner and held that since he was a tort feasor, he cannot claim compensation from respondents 3 and 4. However, though the accident happened due to his negligence, considering his 66% of permanent disability, the Tribunal fixed the total compensation payable at Rs.25,000.00 under Sec.140 of Motor Vehicles Act under no fault liability and the above compensation was directed to be paid with interest at the rate of 7.5% per annum. 5.The appellant not being satisfied with the quantum of compensation awarded by the Tribunal has filed the present appeal before this Court seeking for enhancement of compensation. 6. The learned counsel for appellant would submit that at the time of accident, the petitioner being the driver of container Eicher vehicle bearing Regn. No.29 AJ -4322 driving from Nanguneri to Bangalore with full load of tube lights, while he is reaching Kuppur Division Road, a tanker lorry bearing Regn.No.28 K-5693 driven by its driver pouring water to the plants in the central median without any signal stopped the vehicle suddenly. In an attempt to stop the lorry to certain extent, the petitioner has attempted to turn vehicle on the left side, inspite of that, it dashed against the back side of tanker lorry, due to which he sustained fractures and grievous injury all over the body. He would also submit that the appellant is a driver by profession and due to the accident, he was not able to do his work as before. But, the tribunal without considering the manner of accident erroneously awarded only a sum of Rs.25,000.00 as compensation under Sec.140 of Motor Vehicles Act under no fault liability holding that as he is a tort feaser, he is not liable to claim any compensation. 7. The learned counsel for 2nd respondent with whom tanker lorry was insured argues that at the day time nearly about 07.03 hours, tanker lorry was driven by its driver with due precaution pouring water to the plants in the median and since the container Eicher lorry driver/appellant was rash and negligent in driving and unable to control the vehicle, due to which the accident happened. So, there is no negligence on the side of tanker lorry and the same was rightly observed by the tribunal, which needs no interference. 8. The learned counsel for 4th respondent would also submit that for the accident happened, the application under Sec.166 of Motor Vehicle Act was filed and the negligence on the part of driver of tanker lorry was rightly appreciated by the tribunal, which needs no interference. Hence, he prayed to dismiss the appeal devoid of merit. 9. Heard and considered rival submissions made by both learned counsel for appellant as well as respondents 2 and 4 and perused materials available on record. 10. Considering both side submissions and on perusal of records, it reveals that on the date of accident, the appellant being a driver of container Eicher lorry driven the vehicle with full load from Nanguneri to Bangalore, while reaching Kuppur Division Road, the driver of the tanker lorry, who is pouring the water to the plants planted in the center median, suddenly stopped the vehicle, due to which he hit behind rear back side of tanker lorry. According to the 2nd respondent, at the time of accident, the tanker lorry had applied all the precautions and pouring water to the plants planted in the median and also one person is showing red flag to caution the upcoming vehicle, but the appellant without following the same, he dashed on the rear side of the vehicle and caused the accident. Before the tribunal, they have examined the driver of tanker lorry as R.W.2. However, he is a driver of tanker lorry and he could not see the upcoming vehicle, since the accident happened on the back side, but the person who had shown red flag was not examined, who is the right person to explain the manner of accident. Furthermore, according to 4th respondent, the accident happened only due to the negligence of the appellant. However, to that effect, the tribunal has not fixed any negligence upon him. Therefore, there is a negligence on the side of container Eicher lorry also. Hence, considering both side submissions and considering the manner of accident this court is inclined to fix 40% liability upon the tanker lorry and 60% liability upon the container Eicher lorry. Accordingly, the award passed by the tribunal is liable to be modified. To that effect, the ratio laid down in the authority reported in 2019 (2) TN MAC 306 in the case of National Insurance Co. Ltd. vs. Suresh @ Soodanath and others held by this court is squarely applicable to this case. 11. Admittedly, the accident happened in the year 2020. On a perusal of disability certificate, the fact reveals that two toes of his left and right leg were amputated. Even during the treatment, he has undergone two surgeries and he was in hospital from 24/11/2020 to 8/1/2021. Considering his grievous injury, his disability was assessed as 66% permanent disability. Therefore, considering his age of 21 years and also considering his 66% of permanent disability, this court is inclined to fix a sum of Rs.9000.00 per percentage of disability. 12. Furthermore, the accident happened in the year 2020 and since he is a driver by profession, he would have earned a sum of Rs.15000.00. So, considering his income as well as considering the cost of living at that time and also considering his age, this court is inclined to fix his monthly notional income as Rs.15,000.00. On further perusal of award, it reveals that due to the injuries sustained in the accident, the appellant's two toes of his left and right leg were amputated, as a result of which, he was not able to move outside and nearly for about twelve months, he was not able to drive the vehicle. So, taking note of the grievous injury as well as considering his 66% of permanent, this Court is inclined to fix the period for loss of income as twelve months. 13. Considering the fact that he has undergone surgeries during the treatment period and also took treatment as outpatient for some days in various hospitals, due to which he sustained severe pain and could not do his work as before, this court is inclined to award a sum of Rs.1,00,000.00 towards pain and suffering. As he was in hospital for more than three months, during the treatment period, he would have spent huge amount towards transportation. Hence, this Court is inclined to award a sum of Rs.15,000.00 towards transportation expenses. As he had suffered with amputation and also undergone surgeries, he would have needed more nourishment. Hence, this Court is inclined to award a sum of Rs.20,000.00 towards extra nourishment. Considering the fact that he sustained with 66% of permanent disability and since two toes of his left and right leg were amputated, he required further treatment. Hence, this court is inclined to award Rs.50,000.00 towards future medical expenses. Considering the injury of 66% of permanent disability, amputation of two toes of his right and left leg and also undergone two surgeries, this Court is inclined to award a sum towards loss of amenities as Rs.1,00,000.00. 14.In the light of the above discussion, the compensation awarded by the this court is as follows: <IMG>JUDGEMENT_81_LAWS(MAD)8_2025_1.jpg</IMG> 15.The compensation of R.25,000/- awarded by the tribunal under Sec.140 of Motor Vehicles Act is enhanced to Rs.10,59,000.00. As per the liability of 60% fixed upon the container Eicher lorry and 40% fixed upon tanker lorry, the 2nd and 4th respondents are directed to deposit the enhanced compensation, less the amount already deposited, together with interest at 7.5% p.a. from the date of claim petition till the date of deposit within a period of eight weeks from the date of receipt of copy of this judgment. On such deposit, the appellant is permitted to withdraw the enhanced award amount now determined by this court along with interest and costs, less the amount if any, already withdrawn. Insofar as the enhanced compensation is concerned, the deficit court fee, if not paid, shall be paid by the appellant. The other directions issued by the Tribunal with regard to the mode of payment of compensation remains unaltered. 16.In the result, the Civil Miscellaneous Appeal is partly allowed. No costs.