Madras High Court

M/S.United India Insurance ... vs Ramesh on 16 December, 2021

                                                                                     CMA.No.2693 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 16.12.2021

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                             CMA No.2693 of 2021 and
                                              CMP.No.15476 of 2021

                     M/s.United India Insurance Company Limited,
                     Regional Office-1,
                     No.104-A, Peramur Main Road,
                     Salem-636 007.                                                  ... Appellant

                                                            Vs

                     1.Ramesh

                     2.Jothilingam                                                   ... Respondents

                     Prayer: This Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988, against the Judgment and Decree made in
                     M.C.O.P.No.2177 of 2016, dated 13.01.2020, on the file of the Motor
                     Accidents Claims Tribunal, Special Subordinate Court No.2, Salem.


                                          For Appellant          : Mr.M.B.Raghavan

                                          For Respondents        : No Appearance




                     1/9


https://www.mhc.tn.gov.in/judis
                                                                                  CMA.No.2693 of 2021

                                                   JUDGMENT

The Insurance Company is on appeal. Challenge is to the quantum

of compensation awarded for the injury suffered by the claimant/first

respondent in a road accident that occurred on 01.03.2014.

2.According to the claimant while he was travelling in his two

wheeler bearing Registration No.TN52-Y-2373 at about 9.15 p.m. on

Bhavani-Mettur Road near Madhaiyankottai bus stop, a car bearing

Registration No.TN-52-Y-2692 driven by its driver in a rash and negligent

manner came in the opposite direction and hit against the two wheeler. As a

result of the impact, the claimant was thrown off his vehicle and he suffered

grievous injuries. Contending that the claimant who was aged about 29

years at the time of accident and was earning Rs.15,000/- per month is

unable to do the same work after the accident because of the injuries. It is

stated that the injuries had left an impact on his earning power. The claimant

assessed the compensation payable to him as a result of the accident at

Rs.10,30,000/- and the claim was restricted to Rs.10,00,000/-.

3.The Insurance Company resisted the claim contending that the

accident did not occur in the manner suggested by the claimant. According

https://www.mhc.tn.gov.in/judis CMA.No.2693 of 2021

to the Insurance Company, it was the claimant who was responsible for the

accident. The quantum of compensation claimed was termed as excessive. It

was also contended that the claimant did not possess valid driving licence.

The Tribunal upon consideration of the evidence on record came to the

conclusion that it was the negligence of the driver of the car that caused the

accident. It also held that as the insurer of the car, the Insurance Company

would be liable to pay the compensation. On quantum, the Tribunal accepted

the report of the medical board that the injuries have caused at 34%

permanent disability to the claimant and the Tribunal adopted multiplier

method and assessed the loss of earning capacity at Rs.6,31,176/-. The

Tribunal also awarded a sum of Rs.1,00,000/- towards pain and suffering.

Rs.1,75,000/- towards loss of amenities. Rs.20,000/- towards transport.

Rs.60,000/- towards extra nourishment. Rs.10,000/- towards Assistants.

Rs.1000/- towards damages to clothing and other property.

4.Thus the Tribunal awarded a total sum of Rs.9,97,176/- since

the claimant did not produce his driving licence, the Tribunal deducted 20%

of it and awarded a sum of Rs.7,97,741/-.

5.Heard Mr.M.B.Raghavan, learned counsel appearing for the

https://www.mhc.tn.gov.in/judis CMA.No.2693 of 2021

appellant/Insurance Company.

6.Despite service, the first respondent/claimant is not appearing

either in person or through counsel duly instructed eventhough the

respondent/claimant and the owner of the vehicle though served.

7.Mr.Raghavan would vehemently contend that the Tribunal was

not right in applying multiplier method in as much as, there is no evidence of

any functional disability, which would have a bearing on the earning power

of the claimant. From the report of the medical board, it could be seen that

the claimant was admitted as an inpatient only for six days and the treatment

done was I.M. Nailing. The contents of the report of the medical board,

which has been marked as Ex.C1 would show that the flexion extension arc

of the right knee is 0° to 100° and the muscles strength is 4/5 in the fluxor

muscles and the extensor muscle. Though the permanent disability is

assessed at 34%. The period of treatment and the absence of any further

evidence regarding requirement of future treatment, according to

Mr.Raghavan, demonstrates that the injury would not have a lasting impact

or is not likely to have a lasting impact on the earning capacity of the

claimant.

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8.I have considered the submissions of the learned counsel for the

appellant.

9.In fact, a perusal of the award of the Tribunal does not show that

it has come to a definite conclusion that the injury had affected the earning

power of the claimant. The Tribunal has gone on to adopt the multiplier

method without rendering a clear finding regarding the loss of earning

power. Multiplier method in an injury case could be adopted only when

there is evidence of loss of earning power. The percentage of injury does not

have a direct relation to the loss of earning power in many cases. In the case

on hand, the injury is fracture of both bones of the leg namely, the tibia and

fibula. From the report of the medical board, it is seen that there is no

problem in the movement of the right knees. Of course, there is a slight

weakening of the muscle strength which may not have a lasting impact

considering the age of the claimant. There is also no evidence of any further

treatment being required. The discharge summary also does not suggest any

further treatment and therefore I am of the opinion that the Tribunal was not

right in applying the multiplier method in order to fix the compensation for

loss of earning power. The award on the other heads also namely, pain and

https://www.mhc.tn.gov.in/judis CMA.No.2693 of 2021

suffering, loss of amenities and extra nourishment are definitely on the

higher side. The claimant has been admitted as an inpatient for six days. Of

course, the injury being a fracture of both the bones in the right leg, the

claimant would have undergone pain for reasonably long time. The

compensation for loss of amenities is not resorted to normally in a case of

minor injuries. However, the Tribunal has chosen to award a sum of

Rs.1,75,000/- towards loss of amenities and award of Rs.60,000/- for extra

nourishment is without any basis.

10.Considering the over all circumstances, the award of the

Tribunal seeks modification and it is modified as follows:

The compensation for disability is fixed at Rs.1,70,000/- @

5,000/- per percentage of disability. The compensation for pain and suffering

is reduced to Rs.75,000/-. The compensation for loss of amenities is reduced

to Rs.1,00,000/-. The compensation for extra nourishment is reduced to

Rs.25,000/-.

11.The learned counsel for the Insurance Company would fairly

concede that the Hon'ble Supreme Court has held in the case of Dinesh

Kumar v. National Insurance Company reported in (2018 1 TNMAC 34)

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that absence of driving licence alone cannot be a ground to assume

contributory negligence or to make any deduction in the compensation.

Therefore, the deduction of 20% made by the Tribunal is set aside. The

award is modified.

12.Since the fracture is of both the bones and the claimant is a

Mason, there will be definitely loss of income and the same is fixed at

Rs.60,000/- @ Rs.10,000/- per month for a period of six months. The

compensation awarded is as follows:

                                  For permanent disability    Rs.1,70,000/-

                                  For pain and suffering      Rs.75,000/-

                                  For loss of amenities       Rs.1,00,000/-

                                  For transportation          Rs.20,000/-

                                  For extra nourishment       Rs.25,000/-

                                  For assistants              Rs.10,000/-

                                  For loss of clothing        Rs.1000/-

                                  For loss of income          Rs.60,000/-

                                            Total             Rs.4,61,000/-







https://www.mhc.tn.gov.in/judis
                                                                                   CMA.No.2693 of 2021

13.The total compensation is fixed at Rs.4,61,000/-. The tribunal

has granted interest at 7.5% and the same is confirmed. The Insurance

Company is directed to deposit the balance amount, if any, within a period

of six weeks from the date of receipt of a copy of this order. On such deposit,

the claimant is entitled to withdraw the same. This Civil Miscellaneous

Appeal is allowed. No costs. Consequently, the connected miscellaneous

petition is closed.

16.12.2021 vs Index: No Speaking order

1.The Motor Accidents Claims Tribunal, Special Subordinate Court No.2, Salem.

2.The Section Officer, VR Section, Madras High Court, Chennai.

https://www.mhc.tn.gov.in/judis CMA.No.2693 of 2021

R.SUBRAMANIAN, J.