High Court · 2025

C.M.A.No.2533 of 2021IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.01.2025CORAMTHE HONOURABLE MR.JUSTICE M.DHANDAPANIC.M.A.No.2533 of 2021and C.M.P.No.14552 of 2021and CROS.OBJ.No.19 of 2023Prayer in C.M.A.No.2533 of 2021The Oriental Insurance Company Limited,Kallakurichi. ... Appellant Vs.1.Vijayakumar2.Mynavathy ... Respondents PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 27.04.2019 made in M.C.O.P.No.37 of 2013 on the file of the Motor Accidents Claims Tribunal (Subordinate Court), Kallakurichi. _________Page 1 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 2021Prayer in Cross.Obj.No.19 of 2023:Vijayakumar ... Cross ObjectorVs.1. The Oriental Insurance Company Limited, Kallakurichi.2.Mynavathy ... RespondentsPRAYER : Cross Objection filed under Order XLI Rule 22 of the Code of Civil Procedure, for enhancement of the compensation awarded in the judgment and decree dated 27.04.2019 made in M.C.O.P.No.37 of 2013 on the file of the Motor Accidents Claims Tribunal (Subordinate Court), Kallakurichi.C.M.A.No.2533 of 2021For Appellant: Mr.M.KrishnamoorthyFor Respondents: Ms.K.Nithyashree for R1R2-Ex-parte_________Page 2 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 2021Cross.Obj.No.19 of 2023For Cross Objector : Ms.K.NithyashreeFor Respondents : Mr.M.Krishnamoorthy for R1 C O M M O N J U D G M E N TThe appellant / Insurance Company, aggrieved by the quantum of compensation awarded by the Motor Accident Claims Tribunal, (Subordinate Court), Kallakurichi, in M.C.O.P.No.37 of 2013, dated 27.04.2019, has filed the present appeal.2. Cross Objection No.19 of 2023 has been filed under Order XLI Rule 22 of CPC seeking enhancement of the compensation granted by the Tribunal vide award dated 27.04.2019 made in M.C.O.P.No.37 of 2013, on the file of the Motor Accident Claims Tribunal, (Subordinate Court), Kallakurichi._________Page 3 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 20213. Both the appeal and cross objection arise out of the same accident and hence, they are disposed of by this common judgment. 4. For the sake of convenience, the parties are referred to as per their ranks before the Tribunal.5. On 20.03.2009, at about 19.30 hours, when the claimant was walking on the left mud portion of Kallakurichi to Ka Mamanandal Road, near Nalla Valliamman rice mill, the vehicle bearing Reg.No.TN 32 R 4553 passenger auto belonging to the first respondent was driven in a rash and negligent manner and dashed against the claimant, due to which, the claimant sustained grievous injuries. Claiming compensation for a sum of Rs.5,00,000/-, the claim petition was filed by the claimant against the respondents, who are the owner and insurer of the auto._________Page 4 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 20216. 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 rash and negligent driving on the part of the auto. Having rendered such a finding, the Tribunal proceeded to determine the compensation payable at Rs.30,00,000/-. The Tribunal directed the above compensation to be paid by the second respondent with interest at the rate of 7.5% p.a.7. Questioning the quantum of compensation awarded by the Tribunal, the appellant / Insurance Company has filed the appeal.8. Not being satisfied with the amount awarded by the Tribunal, the claimant has filed Cross Objection No.19 of 2023 for enhancement of compensation._________Page 5 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 20219. Heard Mr.M.Krishnamoorthy, learned counsel for appellant / Insurance Company and Ms.K.Nithyashree, learned counsel for the first respondent / Cross objector.10. This Court carefully considered the submissions made on either side and the materials available on record.11. This Court also carefully went through the award passed by the Tribunal.12. The learned counsel for the appellant / Insurance Company submitted that though the claimant submitted that he sustained 35% disability, due to which, he could not continue his avocation and he was de-promoted and his pay was reduced, the employer was not examined to prove the said fact before the Tribunal. Without examining the employer and ascertaining the income (i.e.,) prior to the accident and after the accident, _________Page 6 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 2021the Tribunal has taken the monthly income of the claimant at Rs.42,783/-. Hence, this Court may remand the matter back to the Tribunal to ascertain the income of the claimant (i.e.,) prior to the accident and after the accident by examining the employer and to verify the fact as to whether due to medical degradation, the claimant's pay was reduced. 13. The learned counsel appearing for the first respondent submits that in order to prove the income, the claimant has marked the pay slips which were marked as Ex.P9 and Ex.P10. Taking into consideration of the above documents, the Tribunal has fixed the monthly income of the claimant which does not require any interference by this Court and the compensation awarded by the Tribunal under the other heads is also on the lower side. Hence, she prays for dismissal of this appeal. 14. The second respondent remained ex-parte before the Tribunal.15. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the first respondent._________Page 7 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 202116. It is seen from the records that the accident had taken place on 20.03.2009 and the claimant has not produced any document to prove his monthly income on the date of accident, but has produced the pay slips for the months of August 2010 and December 2012 which were marked as Ex.P9 and Ex.P10, and submitted that due to the accident, he sustained 35% disability and he was de-promoted and his pay was reduced. This fact was not properly adjudicated by the Tribunal and the Tribunal has mechanically taken the monthly income of Rs.42,783/- without examining the employer to ascertain the above fact. Hence, on the sole ground, the award dated 24.07.2019 passed in M.C.O.P.No.37 of 2013 by the Motor Accident Claims Tribunal (Subordinate Court), Kallakurichi, is set aside and the matter is remanded back to the Tribunal and M.C.O.P.No.37 of 2013 is restored on file. The Tribunal is directed to examine the employer to ascertain the fact as to whether due to medical de-gradation, the claimant was de-promoted and his pay was reduced and also ascertain the income of the claimant (i.e.,) prior to the accident and after the accident. The claimant is also at liberty to _________Page 8 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 2021examine his employer and mark the salary slip (i.e.,) prior to the accident and after the accident. The Tribunal is directed to re-deposit the amount deposited by the Insurance Company in an interest yielding fixed deposit and dispose of the case within a period of three months from the date of receipt of a copy of this judgment. 17. Accordingly, this Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. Connected miscellaneous petition is closed. 18. In view of the judgment passed in CM.A.No.2533 of 2021, the Cross Objection No.19 of 2023 stands closed. 23.01.2025NCC : Yes / NoIndex : Yes / NoSpeaking Order : Yes / Nossb_________Page 9 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 2021To1.The Motor Accidents Claims Tribunal, (Subordinate Court), Kallakurichi. 2. The Section Officer, V.R. Section, High Court, Chennai._________Page 10 of 11 https://www.mhc.tn.gov.in/judis C.M.A.No.2533 of 2021M.DHANDAPANI, J.ssbC.M.A.No.2533 of 2021and C.M.P.No.14552 of 2021and CROS.OBJ.No.19 of 202323.01.2025_________Page 11 of 11