Madras High Court
M/S.Tata Aig General Insurance ... vs D.Kathirvel on 8 April, 2021
C.M.A.Nos.2431, 2432 & 3194 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.04.2021
CORAM
THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY
C.M.A.Nos.2431, 2432 & 3194 of 2017
and C.M.P.No.19631 of 2017
M/s.TATA AIG General Insurance Company Limited,
2nd Floor, Samson Towers,
Pantheon Road, Egmore,
Chennai – 600 008. ...Appellant in
C.M.A.No.3194 of 2017
Vs
1.D.Kathirvel
2.P.T.Saravanan ... Respondent
C.M.A.No.3194 of 2017
D.Kathirvel ...Appellant in
C.M.A.No.2431 of 2017
Vs
1.Saravanan P.T
2.M/s.TATA AIG General Insurance Company Limited,
2nd Floor, Samson Towers,
Pantheon Road, Egmore,
Chennai – 600 008. ... Respondents
C.M.A.No.2431 of 2017
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https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.2431, 2432 & 3194 of 2017
P.Gokulan ...Appellant in
C.M.A.No.2432 of 2017
Vs
1.Saravanan P.T
2.M/s.TATA AIG General Insurance Company Limited,
2nd Floor, Samson Towers,
Pantheon Road, Egmore,
Chennai – 600 008. ... Respondents
C.M.A.No.2432 of 2017
Common Prayer in C.M.A.Nos.2431 & 3194 of 2017: Civil Miscellaneous
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, prayed to set
aside the judgment and decree dated 15.03.2017 made in M.C.O.P.No.5617 of
2014 on the file of the Motor Accident Claims Tribunal, II Court of Small
Causes, Chennai.
Prayer in C.M.A.No.2432 of 2017: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act, 1988, prayed to set aside the judgment
and decree dated 15.03.2017 made in M.C.O.P.No.5618 of 2014 on the file of
the Motor Accident Claims Tribunal, II Court of Small Causes, Chennai.
In C.M.A.Nos.2431 & 2432 of 2017
For Appellant : Mr.K.Suryanarayanan
For R1 : Not Residing at Present
For R2 : Mr.M.B.Raghavan
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https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.2431, 2432 & 3194 of 2017
In C.M.A.No.3194 of 2017
For Appellant : Mr.M.B.Raghavan
For R1 : Mr.K.Suryanarayanan
For R2 : Left
JUDGMENT
These Civil Miscellaneous Appeals have been filed against the judgment
and decree dated 15.03.2017 made in M.C.O.P.Nos.5617 & 5618 of 2014 on the
file of the Motor Accident Claims Tribunal, II Court of Small Causes, Chennai.
2.The appellant-Insurance Company in C.M.A.No.3194 of 2017 is the 2nd
respondent in M.C.O.P.No.5617 & 5618 of 2014 on the file of the Motor
Accidents Claims Tribunal, II Court of Small Causes, Chennai. The appellant in
C.M.A.No.2431 & 2432 of 2017 filed the above said claim petitions claiming a
sum of Rs.30,00,000/- each as compensation for the injuries sustained by them
in the accident that took place on 01.06.2014.
3.According to the appellants, on 01.06.2014 at about 09.00 hours, when
D.Kathirvel, appellant in C.M.A.No.2431 of 2017 was riding the Motor Cycle
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C.M.A.Nos.2431, 2432 & 3194 of 2017
bearing Registration No.TN-21-AU-6955 along with P.Gokulan, appellant in
C.M.A.No.2432 of 2017 in Walajahbath to Padapai Road, the lorry bearing
Registration No.TN-20-CC-2986 came from opposite direction in a rash and
negligent manner at terrific speed endangering to the public safety and dashed
against the Motor Cycle and thereby both the rider and the pillion rider thrown
out and fell down and they sustained grievous injuries. The accident occurred
due to the rash and negligent driving of the driver of the lorry. Therefore, the
appellants in C.M.A.Nos.2431 & 2432 of 2017 filed the claim petitions
claiming a sum of Rs.30,00,000/- each as compensation for the injuries
sustained by them against the owner and the insurer of the lorry.
4.The Tribunal, considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent driving
by the driver of the lorry belonging to 1st respondent therein, who is the owner
of the lorry and directed the appellant-Insurance Company to pay a sum of
Rs.9,86,000/- as compensation to the appellant in C.M.A.No.2431 of 2017 and
to pay a sum of Rs.4,44,000/- as compensation to the appellant in
C.M.A.No.2432 of 2017.
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C.M.A.Nos.2431, 2432 & 3194 of 2017
5.Both the Insurance Company and the claimants have filed the separate
Civil Miscellaneous Appeals challenging the quantum of compensation
awarded by the Tribunal. As far as the liability is concerned, the entire liability
was fastened against the owner and the insurer of the lorry. There is no dispute
on this aspect.
C.M.A.Nos.2431 & 3194 of 2017:
6.Not being satisfied with the compensation awarded by the Tribunal the
claimant in M.C.O.P.No.5617 of 2014 has filed the Civil Miscellaneous Appeal
in C.M.A.No.2431 of 2017.
7.C.M.A.No.3194 of 2017 has been filed by the Insurance Company
challenging the quantum of compensation.
8.The Tribunal has awarded the compensation in the manner stated
below:
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C.M.A.Nos.2431, 2432 & 3194 of 2017
1. Transportation, Nourishing Food Rs.50,000/-
and Miscellaneous Expenditure
2. Medical Expenses Rs.3,05,978/-
3. Attender Charges Rs.20,000/-
4. Loss of Future Earning Rs.5,18,400/-
Capacity/Power
5. Loss of Earning during the period Rs.16,000/-
of treatment
6. Damages for pain, suffering and Rs.50,000/-
trauma
7. Loss of Amenities Rs.25,000/-
Total Rs.9,85,378/-
9.The learned counsel appearing for the Insurance Company submitted
that the Court below awarded compensation towards loss of future earnings by
applying multiplier method, which is on the higher side.
10.He further submitted that the injured was not referred to the Medical
Board, only the Private Doctor has fixed the disability at 85%. Though, the
Doctor was examined, the disability is only a partial permanent disability.
Further, the claimant is working as an operator in Remaultnishan Auto, Indian
Pvt. Ltd., and his working ability has not been reduced due to the disability
suffered by him and no evidence was produced by the claimant to prove that his
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C.M.A.Nos.2431, 2432 & 3194 of 2017
working ability has been reduced. The claimant was also admitted the fact at
present that he is working in the said Company. Under such circumstance, the
fixation of 30% as functional disability and awarding the compensation by
applying the multiplier method is not proper. Therefore, the learned counsel for
the Insurance Company suggested that Rs.3,000/- may be fixed for every
percentage of disability and compensation may be awarded accordingly, which
would comes around Rs.2,55,000/-(85% X Rs.3,000/-).
11.However, on the other side, the learned counsel for the claimant
suggested that instead of fixing Rs.3000/- per percentage, the functional
disability may be reduced to 20% and compensation may be awarded by
applying multiplier method.
12.In view of the above submissions, this Court is of the view that taking
into consideration the nature of injury, it is a fit case to apply the multiplier
method. Thus, I do not find any fault on the part of the Tribunal, awarding the
compensation by applying the multiplier method. However, determining the
functional disability at 30% is on the higher side. Hence, this Court is of the
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C.M.A.Nos.2431, 2432 & 3194 of 2017
view that it would be appropriate to apply multiplier method by fixing the
disability at 18%. As far as the notional income is concerned, there is no dispute
on either side. Hence, the loss of future earning capacity/power is redetermined
as follows:
Rs.8000 x 12 x 18 x 18% = Rs.3,11,040/-.
13.Therefore, loss of future earnings awarded by the Tribunal to a sum of
Rs.5,18,400/- stands reduced to a sum of Rs.3,11,040/-.
14.The learned counsel appearing for the claimant would submit that the
claimant was earning a sum of Rs.25,000/- per month and due to the injuries he
was in the home for a period of two months. The Court below has awarded a
sum of Rs.16,000/- towards loss of earning during the period of treatment.
Therefore, he submitted two month salary may be awarded as loss of earnings
during the treatment period.
15.The learned counsel appearing for the Insurance Company also fairly
submitted that the same may be re-fixed. Hence, the loss of earning during the
treatment period re-fixed as 40,000/- instead of Rs.16,000/-. The Court below
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C.M.A.Nos.2431, 2432 & 3194 of 2017
has not awarded any amount towards future medical expense. This Court award
a sum of Rs.25,000/- towards future medical expense. Thus, the compensation
awarded by the Tribunal in M.C.O.P.No.5617 of 2014 is modified as follows:
S. Description Amount awarded Amount awarded
No by Tribunal by this Court
(Rs) (Rs)
1. Transportation, Rs.50,000/- Rs.50,000/-
Nourishing Food
and Miscellaneous
Expenditure
2. Medical Expenses Rs.3,05,978/- Rs.3,05,978/-
3. Attender Charges Rs.20,000/- Rs.20,000/-
4. Loss of Future Rs.5,18,400/- Rs.3,11,040/-
Earning
Capacity/Power
5. Loss of Earning Rs.16,000/- Rs.40,000/-
during the period of
treatment
6. Damages for pain, Rs.50,000/- Rs.50,000/-
suffering and trauma
7. Loss of Amenities Rs.25,000/- Rs.25,000/-
8. Future Medical - Rs.25,000/-
Expenses
Total Rs.9,85,378/- Rs.8,27,018/-
Therefore, the amount awarded by the Tribunal, a sum of Rs.9,85,378/-
stands reduced to Rs.8,27,018/-.
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C.M.A.Nos.2431, 2432 & 3194 of 2017
C.M.A.No.2432 of 2017
16.Challenging the quantum of compensation awarded by the Tribunal,
the claimant in M.C.O.P.No.5618 of 2014 has preferred the Civil Miscellaneous
Appeal in C.M.A.No.2432 of 2017.
17.The learned counsel for the appellant submitted that the appellant was
admitted in the hospital for 9 days, the Tribunal has awarded only a sum of
Rs.1,50,000/- towards disability by applying percentage method. The Court
below ought to have awarded the compensation towards disability by applying
multiplier method.
18.The learned counsel for the 2nd respondent submitted that in the
present case, the Doctor has determined the disability of the appellant as 55%.
The Court below has taken 50% partial permanent disability and awarded a sum
of Rs.3,000/- per percentage. He further submitted that the amount awarded by
Tribunal is just and reasonable and the same need not be interfered with.
19.Heard the learned counsel for the appellant as well as the 2nd
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C.M.A.Nos.2431, 2432 & 3194 of 2017
respondent and perused the materials available on record.
20.The Tribunal has awarded the compensation in the manner stated
below:
1. Transportation, Nourishing Food Rs.25,000/-
and Miscellaneous Expenditure
2. Medical Expenses Rs.1,88,860/-
3. Attender Charges Rs.10,000/-
4. Loss of Future Earning Rs.1,50,000/-
Capacity/Power
5. Loss of Earning during the period Rs.50,000/-
of treatment
6. Damages for pain, suffering and Rs.20,000/-
trauma
Total Rs.4,43,860/-
21.In the present case, the appellant was under treatment for the
period of 9 days and a sum of Rs.1,88,860/- has been awarded by the Tribunal
towards medical expenses and a sum of Rs.10,000/- has been awarded towards
attender charges. With regard to the disability, a sum of Rs.1,50,000/- has been
awarded by the Tribunal, which is just and reasonable.
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C.M.A.Nos.2431, 2432 & 3194 of 2017
22.Therefore, this Court does not find any infirmity in the award passed
by the Tribunal. Hence, the judgment and decree passed by the Tribunal need
not be interfered with.
23.In the result, C.M.A.No.2431 of 2017 is dismissed and
C.M.A.No.3194 of 2017 is partly allowed and the compensation awarded by the
Tribunal at Rs.9,85,378/- is hereby reduced to Rs.8,27,018/- together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit. The appellant-Insurance Company is directed to deposit the award
amount now determined by this Court, along with interest and costs, less the
amount already deposited, if any, within a period of six weeks from the date of
receipt of a copy of this judgment to the credit of M.C.O.P.No.5617 of 2017 on
the file of the Motor Accident Claims Tribunal, II Judge, Small Causes Court,
Chennai. On such deposit, the Tribunal is directed to transfer the entire amount
to the claimant by way of RTGS within a period of three weeks from the date of
deposit or the receipt of Bank details or application for withdrawal from the
claimant, which ever is later.
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C.M.A.Nos.2431, 2432 & 3194 of 2017
24.C.M.A.No.2432 of 2017 is dismissed and a sum of Rs.4,43,860/-
awarded by the Tribunal as compensation to the appellant/claimant, along with
interest and costs is confirmed. The 2nd respondent-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 six weeks from the date of
receipt of a copy of this judgment to the credit of M.C.O.P.No.5618 of 2014 on
the file of the Motor Accidents Claims Tribunal, II Judge, Court of Small
Causes, Chennai. On such deposit, the Tribunal is directed to transfer the entire
amount to the appellant/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, which ever is later. No costs.
Consequently, connected miscellaneous petition is closed.
08.04.2021
Index: Yes/No
Internet:Yes/No
Speaking order/Non-speaking order
rst
To:
The Motor Accident Claims Tribunal,
II Judge, Court of Small Causes, Chennai.
KRISHNAN RAMASAMY,J.
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C.M.A.Nos.2431, 2432 & 3194 of 2017
rst
C.M.A.Nos.2431, 2432 & 3194 of 2017
08.04.2021
https://www.mhc.tn.gov.in/judis/
