Madras High Court
M/S. Oriental Insurance Company ... vs K. Akbar Ali on 2 December, 2021
CMA No.1169 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.M.A.No.1169 of 2020
and
C.M.P.No.7341 of 2020
M/s. Oriental Insurance Company Limited,
No.73/B-1, Salai Road,
Lakshmi Complex,
Thillai Nagar, Trichy. ... Appellant
Vs
1.K. Akbar Ali
2.A. Kalaivani
3.A. Manickkam ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree in MCOP.No.573 of
2013, dated 07.06.2016, on the file of the Motor Accidents Claims Tribunal,
Chief Judicial Magistrate Court, Perambalur.
For Appellant : Mr. N. Vijayaraghavan
For Respondents : Not ready in notice - R1 to R3
*********
JUDGMENT
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CMA No.1169 of 2020
Challenge in this Appeal is to the award of the Motor Accidents
Claims Tribunal, Perambalur, dated 07.06.2016 made in MCOP.No.573 of
2013.
2. It is the case of the claimant that while he was driving the mini
van that belonged to his father bearing Reg.No.TN-48-Q-1374, from
Jeeyapuram to Manapparai at around 2.15 p.m on the Trichy – Karur Main
Road, the lorry bearing Reg.No.TDG-5469 was driven by its driver in a rash
and negligent manner on the wrong side of the road and dashed against the
van. As a result of the impact, the claimant suffered grievous injuries.
Contending that the he was earning a sum of Rs.10,000/- per month and he
is unable to do the same work which he was doing earlier, because of the
injuries suffered by him and claiming that he has also incurred huge amount
for medical expenses, the claimant sought for a compensation of
Rs.15,00,000/-. The 1st respondent owner of the lorry remained ex parte.
3. The 3rd respondent Insurance Company resisted the claim
contending that the accident had not occurred due to the rash and negligent
driving of the driver of the lorry. It was also contended that the non-
impleading of the owner and insurer of the van, which was admittedly
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CMA No.1169 of 2020
driven by the claimant is fatal to the claim. The Insurance company further
contended that the claimant did not have a valid driving license.
4. At trial the claimant had examined himself as CW1 and one
Dr.Selvaraj, who had treated him was examined as CW2. One S.Selvaraj
was examined as RW1, one R.Viji was examined as RW2 and one
B.Selvaraj was examined as RW3. The First Information Report was
marked as Ex.P1, wound certificate and the discharge summary were
marked as Exs.C3 and C4, the medical bills were marked as Ex.C5.
5. The Tribunal upon consideration of the evidence on record
concluded that the accident had occurred due to the rash and negligent
driving of the driver of the lorry. In order to come to the said conclusion,
the Tribunal relied upon the First Information Reports as well as the order of
conviction passed by the Judicial Magistrate as against the driver of the
lorry. On the quantum, the Tribunal arrived at the compensation for the
injuries suffered by the claimant at Rs.7,28,551/-.
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CMA No.1169 of 2020
6. From the nature of the injuries, the disability suffered by the
claimant was assessed at 58%. On the evidence that the disability would
have lasting effect on the earning capacity, the Tribunal found that there is
functional disability and hence applied multiplier method for assessing loss
of income. The Tribunal found that the claimant would have earned about
Rs.4,000/- per month and therefore, the loss of earning capacity due to the
permanent disability would be Rs.4,45,400/-. The Tribunal also granted a
sum of Rs.1,53,111/- for medical expenses based on medical bills.
Rs.30,000/- towards transportation and assistance, a sum of Rs.30,000/- was
awarded towards future medical expenses. A sum of Rs.20,000/- was
awarded towards extra nourishment. Thus, the total award by the Tribunal
worked out to Rs.7,28,551/-. Terming the compensation as high, the
Insurance Company has come up with this appeal.
7. I have hard Mr.N.Vijayaraghavan, learned counsel appearing
for the Insurance Company.
8. Mr.N.Vijayaraghavan, would contend that the Tribunal was not
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CMA No.1169 of 2020
justified in adopting multiplier method and ascertaining the compensation
for loss of earning capacity. He would also contend that the nature of
injuries may not have lasting effect on the earning capacity of the claimant.
He would also fault the Tribunal for fixing the monthly income at
Rs.4,000/-. Ponting out that the Insurance Company had taken a plea that
the petitioner who was driving the van did not have a valid driving license
and it had also produced evidence in support of such plea, the learned
counsel would submit that the Tribunal was not right in fixing 100%
negligence on the driver of the lorry.
9. I have considered the submissions of the counsel. No doubt a
plea was taken to the effect that the petitioner did not have a valid driving
license and a letter was produced to show that no driving licence was issued
to him from a particular Regional Transport Office. But, that by itself is not
enough to conclude that the petitioner was not possessing a valid driving
license. However, considering the FIR and the fact that the Criminal Court
convicted the driver of the lorry, the Tribunal was justified in fixing 100%
negligence on the driver of the lorry. I therefore do not find any reason to
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CMA No.1169 of 2020
interfere with the said conclusion of the Tribunal.
10. On the quantum also, I find that the claimant had suffered
58% disability. A perusal of the discharge summary as well as the wound
certificate shows that the nature of the injurie are very serious and they
would have lasting impact on the earning capacity of the claimant. Doctor's
evidence in this behalf is un-controverted. I therefore do not think that the
Tribunal could be faulted for adopting multiplier method for ascertaining
the compensation. The compensation granted under other heads are also not
unreasonable.
11. Hence I do not see any reason to interfere with the award of
the Tribunal. The appeal therefore fails and it is accordingly dismissed. No
costs. Consequently, the connected miscellaneous petition is closed.
02.12.2021
Index : No
Speaking order
dsa
To
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CMA No.1169 of 2020
The Chief Judicial Magistrate Court, Perambalur.
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CMA No.1169 of 2020
R.SUBRAMANIAN, J.
dsa
C.M.A.No.1169 of 2020
02.12.2021
https://www.mhc.tn.gov.in/judis
