Madras High Court

The Branch Manager vs Gowri .. 1St on 4 February, 2021

                                                                       C.M.A.Nos.1668 & 1669 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 04.02.2021

                                                      CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                           C.M.A. Nos.1668 & 1669 of 2020
                                         and C.M.P.Nos.12300 & 12302 of 2020

                   The Branch Manager,
                   Cholamandalam MS General
                         Insurance Co. Ltd.,
                   Branch Office,
                   No.46, Ground Floor,
                   Pudhupettai Main Road,
                   Thirupattur.                                             .. Appellant in
                                                                            both the appeals
                                                       Vs.

                   1.Gowri                                                 .. 1st Respondent in

C.M.A.No.1668/2020

1.Suresh .. 1st Respondent in C.M.A.No.1669/2020

2.P.Murugan .. 2nd Respondent in both the appeals

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https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1668 & 1669 of 2020

Common Prayer: These Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the common award dated 11.11.2019, made in M.C.O.P. Nos.447 & 459 of 2018, on the file of the Special Sub Court, (Motor Accident Claims Tribunal), Krishnagiri.

                                                 (In both the appeals)

                                         For Appellant     : Mrs.R.Sree Vidhya

For Respondents : Mr.S.Viswanathan (For R1) for M/s.Dass and Viswa Associates

No appearance (For R2)

COMMON JUDGMENT

The matter is heard through "Video Conferencing".

These appeals have been filed against the against the common award

dated 11.11.2019, made in M.C.O.P. Nos.447 & 459 of 2018, on the file of

the Special Sub Court, (Motor Accident Claims Tribunal), Krishnagiri.

2.Both the appeals arise out of the same accident and common award.

Hence, they are disposed of by this common judgment.

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3.The appellant in both the appeals is the 2nd respondent-Insurance

Company in M.C.O.P. Nos.447 & 459 of 2018, on the file of the Special Sub

Court, (Motor Accident Claims Tribunal), Krishnagiri. The 1st respondent in

both the appeals filed the above said claim petitions, claiming a sum of

Rs.25,00,000/- and Rs.50,00,000/- respectively as compensation for the

injuries sustained by them in the accident that took place on 23.08.2017.

4.According to the 1st respondent in both the appeals, on the date of

accident, the 1st respondent in C.M.A.No.1669 of 2020 was riding the

Motorcycle bearing Registration No.TN-83-X-8222, along with the 1st

respondent in C.M.A.No.1668 of 2020 as pillion rider, towards Kalabairavar

Temple situated at Adhiyamankottai, Dharmapuri, on the left side of the road,

slowly and cautiously, observing the traffic rules. While proceeding near the

coconut thope of Govindan situated near Muthukampatti in Pochampalli to

Dharmapuri road, the driver of the Tata Ace bearing Registration No.TN-23-

BT-3595 belonging to the 2nd respondent, drove the same in a rash and

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negligent manner at uncontrollable speed, without sounding horn and without

minding the rules of the road, came in opposite direction and dashed on the

Motorcycle and caused the accident. In the said impact, both the 1st

respondent sustained severe injuries and thus, filed the above said claim

petitions, claiming compensation against the 2nd respondent as owner and

appellant as insurer of the offending vehicle.

5.The 2nd respondent remained exparte before the Tribunal.

6.The appellant, insurer of the Tata Ace, filed separate counter

statements and denied all the averments made by the 1st respondent in their

respective claim petitions. According to the appellant-Insurance Company,

the accident occurred when the 1st respondent in C.M.A.No.1669 of 2020

rode the Motorcycle in a rash and negligent manner and suddenly crossed the

road and invited the accident. The 1st respondent in both the appeals have to

prove that the rider of the Motorcycle possessed valid driving license to ply

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the vehicle at the time of accident. The 2nd respondent, owner of the Tata Ace

did not intimate the appellant about the accident and violated the policy

conditions. Hence, the appellant is not liable to indemnify the 2nd respondent,

owner of the Tata Ace and prayed for dismissal of both the claim petitions.

7.Before the Tribunal, the 1st respondent in both the appeals examined

themselves as P.W.2 and P.W.1 respectively and marked 16 documents as

Exs.P1 to P16. The appellant did not let in any oral and documentary

evidence. Two documents were marked as Exs.C1 and C2.

8.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

driver of the Tata Ace belonging to the 2nd respondent and directed the

appellant as insurer of the said vehicle to pay a sum of Rs.8,67,657/- and

Rs.12,78,217/- as compensation to the 1st respondent in both the appeals

respectively.

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9.Challenging the quantum of compensation granted by the Tribunal in

the common award dated 11.11.2019, made in M.C.O.P. Nos.447 & 459 of

2018, the appellant-Insurance Company has come out with the present

appeals.

10.The learned counsel appearing for the appellant, insurer of the Tata

Ace, contended that the Medical Board assessed and certified that the 1 st

respondent in both the appeals suffered 50% and 65% partial permanent

disability respectively, only for a particular part of the body. The said

assessment of disability by the Medical Board is not in accordance with

Schedule I of the Workmen Compensation Act and is not assessed for the

whole body. For the injuries sustained in the accident, the 1st respondent in

C.M.A.No.1668 of 2020 has taken treatment at Dharmapuri Government

Hospital from 23.08.2017 to 08.09.2017, for a period of 15 days and 1st

respondent in C.M.A.No1669 of 2020 has taken treatment as in-patient at

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Ganga Hospital from 24.08.2017 to 10.09.2017, for a period of 16 days. The

1st respondent in both the appeals have not examined any Doctor to prove

their loss of earning capacity and loss of income. The Tribunal without any

basis, fixed the functional disability of the 1st respondent in both the appeals

as 30% and 40% respectively and adopted multiplier method. The total

compensation awarded by the Tribunal is excessive and prayed for setting

aside the common award of the Tribunal.

11.Per contra, the learned counsel appearing for the 1st respondent in

both the appeals contended that in the accident, the 1st respondent in both the

appeals sustained grievous injuries and fractures and they were referred to the

Medical Board, Krishnagiri. The Medical Board at Krishnagiri, examined the

1st respondent in both the appeals and certified that the 1st respondent in both

the appeals suffered 50% and 65% partial permanent disability respectively.

The Tribunal observed the 1st respondent in both the appeals in the open

Court while giving evidence and held that their loss of earning capacity has

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been reduced, fixed the functional disability and adopted multiplier method in

awarding compensation. The total compensation granted by the Tribunal is

not excessive and prayed for dismissal of both the appeals.

12.Heard the learned counsel appearing for the appellant-Insurance

Company as well as the 1st respondent in both the appeals and perused the

materials available on record.

13.It is the case of the 1st respondent in both the appeals that in the

accident, they suffered grievous injuries and have taken treatment as in-

patient for a period of 15 days and 16 days respectively. They were referred to

the Medical Board, Krishnagiri. The Medical Board, Krishnagiri, after

examining the 1st respondent, certified that the 1st respondent in both the

appeals suffered 50% and 65% partial permanent disability. The Medical

Board has not assessed the disability for whole body and has not stated that

the 1st respondent in both the appeals have suffered functional disability.

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When the 1st respondent came to the Court to give evidence, the learned

Judge observed that the 1st respondent in C.M.A.No.1668 of 2020 faced

difficulty in standing and gave evidence sitting in the chair and the 1 st

respondent in C.M.A.No.1669 of 2020 was limping, finding it difficult to

stand and do his daily work. In view of the same, the learned Judge held that

the earning capacity of 1st respondent in both the appeals have reduced and

hence, fixed 30% and 40% disability as their functional disability and loss of

earning capacity respectively. The 1st respondent in both the appeals have not

examined any Doctor to prove that they suffered functional disability and lost

their earning capacity. In the absence of any evidence, the Tribunal observing

the 1st respondent in both the appeal in the open Court, held that their loss of

earning capacity has reduced. At the same time, the Tribunal without

converting the disability assessed by the Medical Board for a particular part

of the body to whole body, fixed functional disability and loss of earning

capacity. The percentage of disability fixed by the Tribunal is excessive and

the same is converted to whole body as 16.6% [50/3] and 21.6% [65/3]

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respectively. The accident is of the year 2017. The notional income of

Rs.8,500/- fixed by the Tribunal to the 1st respondent in both the appeals is

not excessive. The 1st respondent in both the appeals were aged 36 years and

34 years respectively at the time of accident. The Tribunal considering the

age of the 1st respondent in both the appeals, rightly granted 40%

enhancement towards future prospects and applied multiplier '15' and '16'

respectively. By fixing functional disability, the amounts granted by the

Tribunal towards loss of earning capacity is modified as follows in:

C.M.A.No.1668 of 2020:

Rs.3,55,572/-{[Rs.8,500/- + Rs.3,400/- (40% of Rs.8,500/-)] x 12 x 15

x 16.6%} and

C.M.A.No.1669 of 2020:

Rs.4,93,517/-{[Rs.8,500/- + Rs.3,400/- (40% of Rs.8,500/-)] x 12 x 16

x 21.6%}

The amounts granted by the Tribunal under other heads are just and reasonable

and hence, the same are confirmed. Thus, the compensation awarded by the

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Tribunal is modified as follows:

                   C.M.A.No.1668 of 2020

                         S. No     Description             Amount awarded         Amount          Award
                                                            by Tribunal        awarded by this confirmed or
                                                                (Rs)             Court (Rs)    enhanced or
                                                                                                 granted
                         1.        Loss of earning                6,42,600/-        3,55,572/-     Reduced
                                   capacity
                         2.        Medical expenses               1,19,057/-        1,19,057/-    Confirmed
                         3.        Transportation                  10,000/-           10,000/-    Confirmed
                         4.        Extra nourishment and           15,000/-           15,000/-    Confirmed
                                   attendant charges
                         5.        Pain and sufferings             40,000/-           40,000/-    Confirmed
                         6.        Social amenities                40,000/-           40,000/-    Confirmed
                         7.        Damage to clothes                 1,000/-           1,000/-    Confirmed
                                   Total                          8,67,657/-        5,80,629/-   Reduced by
                                                                                                 Rs.2,87,027/-
                                                                                rounded off to
                                                                                    5,80,630/-


                   C.M.A.No.1669 of 2020

                         S. No     Description             Amount awarded         Amount          Award
                                                            by Tribunal        awarded by this confirmed or
                                                                (Rs)             Court (Rs)    enhanced or
                                                                                                 granted
                         1.        Loss of earning                9,13,920/-        4,93,517/-     Reduced
                                   capacity
                         2.        Medical expenses               2,34,297/-        2,34,297/-    Confirmed
                         3.        Transportation                  10,000/-           10,000/-    Confirmed



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                                                                            C.M.A.Nos.1668 & 1669 of 2020


                         4.        Extra nourishment and        15,000/-     15,000/-     Confirmed
                                   attendant charges
                         5.        Pain and sufferings          52,000/-     52,000/-     Confirmed
                         6.        Social amenities             52,000/-     52,000/-     Confirmed
                         7.        Damage to clothes             1,000/-       1,000/-    Confirmed
                                   Total                     12,78,217/-    8,57,814/-   Reduced by
                                                                                         Rs.4,20,403/-

14.In the result, these Civil Miscellaneous Appeals are partly allowed

and the amounts awarded by the Tribunal at Rs.8,67,657/- and Rs.12,78,217/-

are modified to Rs.5,80,630/- and Rs.8,57,814/- respectively 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, 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. Nos.447 and 459 of 2018. On such deposit, the 1st

respondent in both the appeals are permitted to withdraw the award amount

now determined by this Court, along with interest and costs, after adjusting

the amount, if any already withdrawn, by filing necessary applications before

the Tribunal. The appellant-Insurance Company is permitted to withdraw the