Madras High Court
Chinthamani vs N. Mahendran on 10 August, 2021
C.M.A.No.4391 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE S. VAIDYANATHAN
C.M.A.No.4391 of 2019
Muthusamy (died)
1. Chinthamani
2. M.Narasimmharaj
3. Hemalakshmi ... Appellants
Vs.
1. N. Mahendran
2. Iffco-Tokio General Insurance Co.Ltd.,
Tulsi Towers,
3rd floor, T.V.Samyroad
R.S.Puram, Coimbatore. ... Respondents
Cause title accepted vide Court order dated 04.09.2019 made
in CMP.No.18834 of 2019 in CMA SR.No.85186 of 2019 (RMDJ)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
20.11.2017 made in M.C.O.P.No.476 of 2013 on the file of the Motor
Accidents Claims Tribunal and Chief Judicial Magistrate, Coimbatore.
For Appellant : Mr.C.Veera Raghavan
For Respondents : No appearance for R1
Mr.J.Michael Visuvasam for R2
1/10
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C.M.A.No.4391 of 2019
JUDGMENT
The matter is heard through "Video Conferencing".
2. This Civil Miscellaneous Appeal has been filed against the award
dated 20.11.2017 made in M.C.O.P.No.476 of 2013 on the file of the Motor
Accident Claims Tribunal and Chief Judicial Magistrate, Coimbatore.
3. Originally, the M.C.O.P.No.476 of 2013 on the file of the Motor
Accidents Claims Tribunal and Chief Judicial Magistrate, Coimbatore was
filed by one Muthusamy (since deceased) seeking compensation for a sum of
Rs.25,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 22.05.2011. The appellants 1 to 3 are the legal
heirs of the deceased.
4. 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 two wheeler bearing Registration No.TN 37 Y 3071. The 1st
respondent, being the owner of the said two wheeler, is liable for the act of
the deceased Driver, who has driven the said two wheeler at the time of
accident and since the policy was also in force and within the period of
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C.M.A.No.4391 of 2019
coverage, the second respondent-Insurance Company, being the insurer of the
two wheeler was directed to pay a sum of Rs.5,31,460/- as compensation to
the petitioner and to recover the same from the 1st respondent who is the
owner of the vehicle.
5. Not being satisfied with the amount awarded by the Tribunal, the
appellants (legal heirs) have come out with the present appeal seeking
enhancement of compensation.
6. On 22.05.2011, the claimant along with his wife came to Ambal
Hospital at Malumichampatti and when he came from west to east to Ambai
Coimbatore main road while crossing the main road and reached the
Pharmacy shop named “Sudha Pharmacy” a motor cycle bearing Reg.No. TN
37 Y 3071 driven by one K.Vijayakumar came from south to north in a rash
and negligent manner, without following the traffic rules and regulations
dashed against the petitioner, as a result the petitioner was thrown away and
fell down on the road and sustained grievous injuries on his head, hip and
abrasions all over his body. Immediately, the injured petitioner was taken to
Sree Abirami Hospital for first aid and shifted to Ganga Hospital, Coimbatore
and took treatment and discharged on 01.06.2011. Again, the petitoner was
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C.M.A.No.4391 of 2019
admitted at V.R.Hospital, Vinayagapuram, Coimbatore and discharged on
21.07.2011. Due to uncontrolled diarrhea, the petitioner was admitted at
Kovai Medical Centre, Coimbatore as inpatient on 21.07.2011 and took
treatment and discharged on 16.10.2011 i.e., 87 days. On the same day, the
petitioner was admitted in Ahalia Ayurveda Medical College Hospital at
Kozhipara, Palakkad and discharged on 22.10.2011. On 23.10.2011, the
petitioner was admitted in Ashwin Hospital for involuntary urination and
after a month treatment he was discharged on 22.11.2011. Due to pain and
catheter problem, the petitioner was admitted at Sree Reshmika Hospital,
Sundarapuram and he was continuing his treatment as inpatient and out
patient. Totally the petitioner took treatment as inpatient for 200 days and
spent more than Rs.5,00,000/- as medical expenses. The Chettipalayam
Police has registered a case against the driver of the two wheeler bearing
Reg.No.TN 37 Y 3071 under Cr.No.649/2011 under Section 279 and 337 of
IPC who died subsequently. But for the rash and negligent driving of the
driver of two wheeler bearing Reg.No.TN 37 Y 3071 the accident would not
have occurred. The 1st respondent is the owner and the second respondent is
the insurer of the two wheeler. Therefore, the second respondent-Insurance
Company, being the insurer of the two wheeler is directed to pay a sum of
Rs.5,31,460/- as compensation to the petitioner and to recover the same from
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C.M.A.No.4391 of 2019
the 1st respondent who is the owner of the vehicle.
7. The learned counsel appearing for the appellants contended that in
the accident, Muthusamy sustained injuries in head, neck and pain in both
upper limbs and unable to move both lower limbs. The petitioner took
treatment at different hospitals and he was in hospital for nearly 187 days
which is evident from Ex.P.7 to Ex.P.18. The Tribunal failed to consider that
the deceased appellant (Muthusamy) was taking continuous treatment from
the date of accident till his death due to the accident, hence the Tribunal
ought to have adopted reasonable compensation and also failed to adopt
multiplier method while awarding compensation. The amounts awarded by
the Tribunal under different heads are meagre and prayed for enhancement of
compensation.
8. Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that once the person died cause of action arose
and multiplier method cannot be adopted after the award has been passed and
this Court can only consider pecuniary loss and cannot apply multiplier
method. Even going by the records, more so, discharge summary issued by
the hospital the age of the claimant was 70 years but contended that the age of
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C.M.A.No.4391 of 2019
the claimant was 62 years on the date of accident which is not correct. Hence,
the award of the Tribunal is perfect and in order and does not require any
interference by this Court and prayed for dismissal of the appeal.
9. Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the 2nd respondent-Insurance Company and
perused the entire materials on record.
10. From the award passed by the Tribunal, it is seen that the deceased
Muthusamy met with a road accident on 22.05.2011 and sustained grievous
injuries all over his body. The injured was in the hospital for 187 days. The
Tribunal has passed an award granting compensation of Rs.5,31,460/- under
different heads. On 20.11.2018, Muthusamy passed away. The learned
counsel for the appellants contended that the compensation should have been
awarded by applying multiplier method and that the claimant was in the
hospital for 187 days. The learned counsel for the Insurance Company
submitted that once the person dies the cause of action arose and multiplier
method cannot be adopted after the award has been passed and that the Court
can consider only grant of pecuniary damages and cannot apply the multiplier
method. Even going by the records, more so, discharge summary issued by
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C.M.A.No.4391 of 2019
the hospital, the claimant age was 70 years, but, contended that the age of the
claimant was 62 years on the date of accident, which is not correct. Hence,
the award of the Tribunal is perfectly in order and does not require any
interference by this Court.
11. The Tribunal has considered Ex.P.22, Ex.P.23, Ex.P.24 and
Ex.P.25 and correctly rejected that no compensation could be paid under the
head loss of income though the petitioner was doing agricultural work after
retirement.
12. Taking note of the injuries and long hospitalization and considering
the facts and circumstances of the present case on hand, loss of income in the
present case has to be granted. Fixing the notional income as Rs.6,000/- p.m.
and considering that the claimant was in the hospital for many months,
compensation of Rs.54,000/- is granted under the head loss of income. As
stated supra the claimant was in the hospital for 187 days and the injuries
clearly show that for 187 days the claimant would have been under the
assistance of an attender and the attender would have made several visit to
the hospital apart from Transport charges. Thus, the compensation awarded
by the Tribunal is modified as follows:
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C.M.A.No.4391 of 2019
S. Description Amount Amount awarded Award
No awarded by by this Court confirmed or
Tribunal (Rs) enhanced or
(Rs) granted
1. Pain and sufferings 50,000/- 50,000/- Confirmed
2. Attender Expenses 30,000/- 1,00,000/- Enhanced
3. Extra Nourishment 50,000/- 1,00,000/- Enhanced
4. Medical Bills 2,81,460/- 2,81,460/- Confirmed
5. Transport expenses 20,000/- 50,000/- Enhanced
6. Permanent partial 1,00,000/- 1,00,000/- Confirmed
disability @ 50%
Rs.2,000/- per
percentage
7. Loss of income - (Rs.6,000x9months) Enhanced
54,000/-
Total Rs.5,31,460/- Rs.6,85,460/- Enhanced by
Rs.1,54,000/-
13. In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.5,31,460/- is hereby
enhanced to Rs.6,85,460/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 2nd respondent-
Insurance Company is directed to deposit the enhanced 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.476 of 2013 on the
file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate,
Coimbatore. On such deposit, the first appellant/wife is permitted to
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C.M.A.No.4391 of 2019
withdraw the entire enhanced award amount now determined by this Court,
along with interest and costs, less the amount if any, already withdrawn by
making necessary applications before the Tribunal. The appellant is directed
to pay the necessary Court fee, if any on the enhanced amount of
compensation now determined by this Court. As far as pay and recovery is
concerned award of the Tribunal is not disturbed. No costs.
10.08.2021
dpq
Index : Yes / No
Internet : Yes / No
To
1.The Motor Accidents Claims Tribunal
and Chief Judicial Magistrate, Coimbatore.
https://www.mhc.tn.gov.in/judis
C.M.A.No.4391 of 2019
S. VAIDYANATHAN, J.
dpq
C.M.A.No.4391 of 2019
10.08.2021
https://www.mhc.tn.gov.in/judis
