Madras High Court
United India Insurance Company ... vs Sheik Mohammed Salahudeen on 19 April, 2021
CMA(MD)No.145 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED 19.04.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.145 of 2009
and
M.P(MD)Nos.1 and 2 of 2009
United India Insurance Company Ltd.,
Pallivasal Street,
Perambalur.
.. Appellant
vs.
1.Sheik Mohammed Salahudeen
2.Adhithanar Educational Institution,
86, EVK Sampath Salai,
Vepery,
Chennai.
3.Krishnamoorthy
4.Royal Sundaram alliance Ins. Co. Ltd.,
45- 46 Whites Road,
Chennai.
...Respondents
1/11
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.145 of 2009
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988 against the order passed by the Motor Accident Claims
Tribunal/Sub-Judge, Kulithalai, dated 06.08.2007 in MCOP No.92/2006.
For Appellant : Mr.J.P.Arjun for
Mr.P.Jaganathan
For Respondent : Mr.A.Saravanan for R1
Mr.M.Gnanagurunathan for R4
No appearance for R2 and R3
JUDGMENT
Assailing the Judgment and decree of the Motor Accident Claims
Tribunal, Sub-Court, Kulithalai passed in MCOP No.92 of 2006, the
Insurance Company has preferred this appeal.
2.The first respondent, as claimant, filed MCOP No.92 of 2006
claiming total compensation of Rs.5,00,000/-. According to the claimant,
on 16.05.2005 at about 05.20 a.m, he was travelling in an Ambassador
Car bearing registration No.TN-01-V-1199 owned by the second
respondent herein and insured with the appellant. When he was
proceeding near Railway Gate, Kuthakudi, which is situated on Chennai-
Trichy main road, the driver of the car drove it in a rash and negligent
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CMA(MD)No.145 of 2009
manner and rammed behind a lorry bearing registration
No.TN-25X-7992. In the impact, the claimant sustained injuries all over
his body and fractures in face. Immediately, he was taken to the
Government Hospital, Ulunthoorpet, where he was given first aid and
referred to Trichy Hospital. It is further stated that the claimant was 27
years old at the time of accident and despite the treatment, he suffered
dis-figuration. So, he is entitled for compensation.
3.The appellant, in the counter filed before the Tribunal, disputed
the manner of accident as stated in the claim petition and it was their
specific case that the driver and the insurer of the lorry alone can be held
liable to pay compensation. During the trial, the claimant examined 3
witnesses and marked 13 documents. The respondent in the claim
petition examined R.Ws.1 to 3 and produced Exs.R.1 to R4. On
appreciation of evidence adduced by the parties, the Tribunal held that
the driver of the car was responsible for the accident and awarded
compensation of Rs.5,00,000/- along with interest at 6% per annum.
Questioning same, the present appeal has been filed.
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CMA(MD)No.145 of 2009
4.The learned counsel for the appellant placing reliance on the
decision of the Hon'ble Apex Court in the case of the Sunilkumar vs.
Ram Singh Gaud and others reported in 2008 ACJ 9 and an unreported
Judgment of this Court made in CMA No.1931 of 2005 dated
28.01.2010, argued that the Tribunal ought to have deducted 1/3 towards
miscellaneous expenses of the claimant. Further, the Tribunal has
arbitrarily fixed the annul income of the claimant as Rs.50,000/- without
any documentary proof and the Tribunal ought to have fixed Rs.15,000/-
only as notional income as per the II Schedule of the Motor Vehicles Act.
5.It is the specific case of the claimant that on 16.05.2005, when he
was travelling in the offending vehicle, the driver drove it in a rash and
negligent manner and hit against a lorry, which was going infront of the
vehicle. The contention of the appellant before the Tribunal was that the
driver of the lorry applied sudden break, which resulted in the accident.
So, the driver of the lorry should be held responsible for the accident.
R.W.3 has admitted that while crossing speed breaker, the lorry had
reduced the speed, but the driver of the car could not control the vehicle
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CMA(MD)No.145 of 2009
and dashed behind the lorry. In the impact, the claimant suffered injuries.
Even though there are minor discrepancies in the evidence of P.W.1, the
Tribunal found that the driver of the car alone was responsible. This
Court finds no ground to upset the finding on negligence, hence, it is
confirmed.
6. Further, P.W.1, the injured claimant has stated that he sustained
6 injuries and produced Ex.P.2 Wound Certificate, which shows that the
claimant suffered injuries in the face, spinal card and other parts of the
body. It is further seen that he underwent surgery in his hip and he was
not able to work properly. P.W.2 Dr.Selvaraj found that the movement of
leg was reduced to the extent of 20 degree and there was reduction of his
hip to the extent of 1.5 c.m and he issued Ex.P.11 Disability Certificate
stating that he suffered 80% disability. P.W.3 Dr.Saravanan deposed that
the claimant lost teeth and suffered fracture in the jaw, by which, he
sustained 39% disability. On the basis of the evidence of P.Ws.2 and 3,
the Tribunal assessed disability at 50%.
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CMA(MD)No.145 of 2009
7. Further, the claimant stated that he has completed M.Sc., and he
was working as Research Assistant in Taiwan and earning Rs.65,000/-
per month. Ex.P.10, is his decree certificate. Since no documentary
evidence was produced to show that he was earning Rs.65,000/-, the
Tribunal has fixed his notional income at Rs.50,000/- per annum, from
which, 50% (Rs.25,000/-) was deducted since he suffered 50% disability.
By applying multiplier '18', the Tribunal has awarded Rs.4,50,000/-
towards loss of income. But no deduction was made towards his
miscellaneous expenses.
8.Now, I would consider the decisions cited by the learned counsel
for the appellant. In 2008 ACJ 9 (supra), the Hon'ble Apex Court has
observed as follows:-
“8. We find substance in the submission put forth by the
counsel for the appellant. The Tribunal as well as the High
Court have not awarded any compensation towards loss of
future income. After the fracture of tibia, it is doubtful if the
appellant can even drive again. Even if he pursues some other
vocation, he would not be able to earn as much as he is earning
now. The disability suffered by the appellant would surely
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CMA(MD)No.145 of 2009
reduce his earning capacity. Therefore, the appellant is required
to be compensated for the loss of earning due to the injuries
suffered by him in the accident.
9. Taking into consideration the present income of the
appellant as Rs.4,000/- per month; and the permanent disability
of 45% suffered by him, we are of the view that the capacity of
the appellant to earn in future would be reduced by Rs.1,800/-
per month approximately. If 1/3rd is deducted towards
miscellaneous expenses, the loss of income comes to Rs.1,200/-
per month which, in turn, comes to Rs.14,400/- per annum.
Appellant was 29 years of age at the time of accident. Taking
the multiplier to be 18 [as per the Second Schedule to Section
163A of the Act], the total loss of income comes to Rs.
2,59,200/-.
9.This Court in CMA No.1931 of 2005 dated 28.01.2010, has held
as under:-
8. The claimant was drawing about Rs.8,513/- as
monthly salary as per Ex.A.10. The Tribunal considering
60% disability of the claimant took 50% of the monthly
income as loss of income and fixed it at Rs.4,000/- and
arrived the loss of income at Rs.4,000x12x10=Rs.4,80,000/-.
However, as per the Supreme Court Judgment, he has arrived
the loss of income. The monthly income at the time of
accident is Rs.8,513/-.
i) Permanent disability of the petitioner is 60%
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CMA(MD)No.145 of 2009
ii) Therefore, the reduction of income per month is
8153 x 60
----------- = Rs.5,108/-
iii) From Rs.5,108/-, 1/3 as to be deducted towards
Miscellaneous Expenses and the loss of monthly
income
Rs.5,108 x 1/3 =Rs.3,458/-. The loss of income Rs.3,458/-
(Per month).
10.In the cases referred above, which arose out of the claims
preferred by the injured claimants, the Hon'ble Supreme Court and this
Court made 1/3rd deduction from the income arrived at towards
miscellaneous expenses. However, in the instant case, no deduction has
been made for the miscellaneous expenses of the injured. After
deducting 1/3rd for his miscellaneous expenses from Rs.25,000/- and by
applying multiplier '18', the loss of income would be Rs.3,00,006/-
(16,667. x 18). Rs.1,42,136/- was awarded towards medical expenses on
the basis of Exs.P.4 to P.6; Rs.5,000/- and Rs.1000/- were awarded
towards pain and suffering and extra nourishment. But the Tribunal has
not awarded any amount for attendant charges. So, this Court awards Rs.
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CMA(MD)No.145 of 2009
25,000/- towards attendant charges. Rs.5000/- awarded towards pain and
suffering is enhanced to Rs.15,000/-. Therefore, the award amount is
reduced to Rs.4,83,142/- which is rounded off to Rs.4,85,000/-. Rate of
interest granted by the Tribunal is confirmed.
11.In view of the above modifications, the Civil Miscellaneous
Appeal is partly allowed. The appellant Insurance Company is directed
to deposit the above modified award amount with accrued interest and
costs, less the amount already deposited, if any, within a period of eight
weeks from the date of receipt of a copy of this order. On such deposit,
the claimant is permitted to withdraw the award amount, less the amount
already withdrawn, if any, together with proportionate interest and costs.
No costs. Consequently, connected Miscellaneous Petitions are closed.
19.04.2021
Index:Yes/No
Internet:Yes/No
skn
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.145 of 2009
To
1.The Motor Accident Claims Tribunal,
Sub-Court, Kulithalai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.145 of 2009
K.KALYANASUNDARAM,J
skn
JUDGMENT MADE IN
C.M.A(MD)No.145 of 2009
and
M.P(MD)Nos.1 and 2 of 2009
19.04.2021
https://www.mhc.tn.gov.in/judis/
