Madras High Court
United India Insurance Co. vs Nathiya on 29 April, 2021
C.M.A.No.3224 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.M.A.No.3224 of 2017 and
C.M.P.No.20008 of 2017
United India Insurance Co., Ltd.,
Pinak Galaxy, 1st Floor, Opp. Big Bazar Kapur,
Bawadi Junction, Thane Town,
Maharashtra State, Pincode-400607 .. Appellant
Vs.
1. Nathiya
2. Bhagirath Bejesingh Goyat,
G-3, BLDG No.B-44, Indian Cor, Dapode,
Tal Bhiwandi, Thane Town,
Maharashtra State, Pincode-400602 ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree passed in
M.C.O.P.No.153 of 2014 on 14.07.2017 on the file of the Learned Motor
Accident Claims Tribunal (Special Sub Judge), at Krishnagiri-District.
For Appellant : Mr.J.Chandran
For Respondents : Mr.P.Mani (R1)
1/9
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C.M.A.No.3224 of 2017
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the Judgment
and Decree passed in M.C.O.P.No.153 of 2014 dated 14.07.2017 on the file
of Motor Accident Claims Tribunal (Special Sub Judge), Krishnagiri-District.
2. The claimant, aged 21 years, a student studying M.Sc.,first year, met
with an accident on 29.10.2013, due to which she sustained grievous injuries.
Hence, she filed a claim petition, in M.C.O.P.No.153 of 2014, before the
Motor Accidents Claims Tribunal (Special Sub Judge), Krishnagiri-District,
seeking compensation for a sum of Rs.10,00,000/-.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the container lorry bearing Registration No.MH.04.EB-1512,
belonging to the second respondent and directed the appellant to pay a sum of
Rs.6,47,400/- (Rupees Six Lakhs Forty Seven Thousand) as compensation to
the first respondent.
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C.M.A.No.3224 of 2017
4.Questioning the quantum of compensation awarded by the Tribunal
in the award dated 14.07.2017 made in M.C.O.P.No.153 of 2014, the
appellant-Insurance Company has come out with the present appeal..
5.The learned counsel appearing for the appellant/Insurance Company
submitted that though permanent partial disability assessed by the Medical
Board is 30%, the claims tribunal, while determining the compensation
towards loss of earning power, has taken 30% permanent partial disability as
whole body disability and awarded compensation. According to the learned
counsel for the appellant, whole body disability should have been taken as
1/3rd of the permanent partial disability assessed by the medical board and
therefore the comepensation awarded by the claims tribunal towards loss of
earning power is high and the same needs to be reduced. He further
submitted that as per the law laid down by the Hon'ble Supreme Court in the
case of Raj Kumar Versus Ajay Kumar & Another reported in CDJ 2010 SC
1153, partial permanent disability cannot be taken as a whole body disability
for determining the compensation and therefore, the amount awarded by the
Court below is not proper. He further submitted that the compensation
awarded towards other heads are also very high and the same needs to be
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C.M.A.No.3224 of 2017
reduced.
6. On the other hand, the learned counsel for the claimant submitted
that claimaint was studying M.Sc., first year at the time of accident and due to
the serious head injuries suffered by the claimant, she used to get giddiness
frequently and so she was not able to continue her studies and left the college.
He also produced Transfer Certificate of the claimant which was marked as
Ex.P11. He further submitted that if the claimant completed the Post
Graduate course, she would have got the good job and charm salary and
hence taking into consideration the age of the claimant, at the time of
accident, the Tribunal has fixed correct percentage for calculating loss of
earning and awarded compensation, which is proper.
7. Heard the learned counsel for the appellant-insurance company and
the learned counsel for the first respondent and perused the materials
available on record.
8. The claimant was 21 years girl at the time of accident and she was
studying in M.S.c first year. A perusal of the discharge summary-Ex.P2
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C.M.A.No.3224 of 2017
shows that she has suffered the following injuries:
"2x2 cm abrasion outer side of left eye, 4x4
cm. abrasion at left elbow, 2x4 cm. abrasion
at left knee and multiple abrasions in both
feet, fracture of left lateral malleolus, thin
SDH right fronto parietal region, hairline
fracture of right parietal bone and that she
suffered three simple injuries and one
grievous injury in the accident. "
9. Further, a perusal of Ex.P3-C.T.scan report shows the grievous
injuries sustained by the claimant. A Perual of Ex.P11- Transfer Certificate
obtained from the college of the claimant shows that the Transfer Certificate
was issued for the month of April 2014 for the academic year 2013-2014, by
which time she was studying in the first year M.S.C. Therefore, it it clear that
in the middle of the course, she has obtained Transfer Certificate.
10. The claimant was examined as P.W.1 and she deposed that due to
head injuries sustained by her, she was not able to concentrate in her studies
and that is the reason, why she was issued Transfer Certificate in the middle
of the course.
11. The claimant being a girl, sustained head injuries, due to which
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C.M.A.No.3224 of 2017
she is suffering from constant giddiness and not able to concentrate on the
studies and the same will definetely affect her career as well as her marriage.
12. Taking all these into consideration, the Claims Tribunal has taken
the disability at 30%. This Court is of the consiered view that the Court
below should have awarded some higher amount .
13. No doubt, the decision of the Hon'ble Apex Court in the case of
Raj Kumar Versus Ajay Kumar & Another reported in CDJ 2010 SC 1153,
cannot be disputed. As far as this case is concerned, she sustained head
injuries and is not able to perform her work properly and she is also getting
giddiness. A perusal of Ex.P11 shows that she was not able to continue her
studies. Further, when the Court is awarding compensation, there is no hard
and fast rule to take functional disability as 1/3rd on the disability assessed
by Doctors. If the disabilities are serious in nature viz., the disability
assessed @ 70%, and earning capacity is reduced in toto, the functional
disability can be taken as 100%, for the purpose of determining the loss of
income of the injured.
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C.M.A.No.3224 of 2017
14. In the present case taking all these into consideration and
considering the facts and circumstances of the case, the loss of earning was
awarded by fixing the 30% as functional disability by the Tribunal. I do not
find any fault on the finding of the Court below. There is no perversity in the
order passed by the Court below. Hence, there is no substance in this appeal
and deserves dismissal.
15. In the result, this Civil Miscellaneous Appeal is dismissed and a
sum of Rs.6,47,400/- awarded by the Tribunal as compensation to the first
respondent, along with interest and costs is confirmed. The appellant-
Insurance Company is directed to deposit the award amount along with
interest and costs, less the amount if any already deposited, within a period of
twelve weeks from the date of receipt of a copy of this judgment to the credit
of M.C.O.P.No.153 of 2014 on the file of the Motor Accidents Claims
Tribunal, (Special Sub Judge), at Krishnagiri-District. On such deposit, the
Tribunal is directed to transfer the entire amount to the first
respondent/claimant by way of RTGS within a period of three weeks from the
date of deposit or the receipt of Bank details from the claimant or application
for withdrawal from the claimant, whichever is later. The claimant is
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C.M.A.No.3224 of 2017
permitted to withdraw the deposited amount. No costs. Consequently,
connected Miscellaneous Petition is closed.
29.04.2021
arr
Index : Yes / No
Internet : Yes / No
To
1. Bhagirath Bejesingh Goyat,
G-3, BLDG No.B-44, Indian Cor, Dapode,
Tal Bhiwandi, Thane Town,
Maharashtra State, Pincode-400602
2. The Motor Accident Claims Tribunal (Special Sub Judge),
Krishnagiri-District.
3.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3224 of 2017
KRISHNAN RAMASAMY, J.
arr
C.M.A.No.3224 of 2017
29.04.2021
https://www.mhc.tn.gov.in/judis/
