Madras High Court
The New India Assurance Co.Ltd vs S.Ganesan on 10 February, 2021
C.M.A.No.3069 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.02.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
CMA.No.3069 of 2012
The New India Assurance Co.Ltd.,
21, Pattulos Road, Chennai -2. ... Appellant
..Vs..
1.S.Ganesan
2.K.Karuthapandian
(2nd respondent remained
exparte and notice dispensed
with for him) ... Respondents
Prayer: Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, against the judgement and decree made in
MACTOP.No.4627 of 2007 on the file of the Motor Accidents
Claims Tribunal (IV Judge, Court of Small Causes), Chennai dated
19.07.2011.
1/12
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3069 of 2012
For Appellant : Mr.M.Krishnamoorthy
For Respondents : Ms.Subadra for R1
R2-Notice unserved
JUDGMENT
This appeal has been filed by the Insurance Company as
against the award dated 19.07.2011 made in MCOP.No.4627 of
2007 on the file of the Motor Accident Claims Tribunal / IV Judge,
Court of Small Causes, Chennai.
2. The case of the first respondent/claimant is that on
01.06.2016 at about 7.30 am, he was standing in front of a Tea Stall
at Thirisoolam. At that time, a Lorry bearing Registration No.TNU-
5956, which was insured with the appellant-Insurance Company,
was proceeding from south to north direction on the same road, in a
rash and negligent manner was driven on a stone and thereby, one of
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C.M.A.No.3069 of 2012
the stone hit the eyes of the petitioner. Due to the said accident, the
petitioner sustained grievous injury in his right eye. Immediately, he
was admitted in the Egmore Eye Hospital and took treatment from
01.06.2006 to 14.06.2006, but he lost his vision in the right eye.
3. It is the further case of the claimant that he was
working as coolie-cum-driver in a Lorry. Since he lost his eye sight,
he was not able to pursue the above work. Hence, he made a claim
for a sum of Rs.6,00,000/- as compensation.
4. The said claim was resisted by the Insurance
Company by filing a detailed counter statement denying the
avocation, involvement of the said Lorry, manner of accident and
other details furnished by the claimants and prayed for dismissal of
the claim petition.
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C.M.A.No.3069 of 2012
5. In order to prove his claim, the claimant examined
himself as PW1 and also examined PW2, the Doctor who assessed
the claimant and Exs.P1 to P7 were marked. On the side of the
Insurance Company, Ex.R1, driving license of the driver of the said
Lorry was marked. The Tribunal after considering the oral and
documentary evidence adduced by both the parties fixed the liability
as against the appellant/Insurance Company and fixed the quantum
of compensation for a sum of Rs.4,08,600/-. The break-up details of
the amounts awarded by the Tribunal under various heads are as
follows:
S.No Heads under which the Amount in Rs.
. amount is awarded by the
Tribunal
1. Loss of Income 18,000
2. Transport to Hospital 5,000
3. Extra nourishment 10,000
4. Pain and Sufferings 30,000
5. Permanent Disability 3,45,600
Total 4,08,600
6. The learned counsel for the appellant/Insurance
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C.M.A.No.3069 of 2012
Company has filed this appeal on the following main grounds that
the Lorry bearing Registration No.TNU-5956, which was insured
with the appellant-Insurance Company, was falsely implicated in this
case; the Tribunal without considering the injury sustained by the
claimant in the accident, has fixed excessive percentage of disability,
i.e., 40%; the Tribunal without any valid proof fixed a sum of
Rs.4,500/- as monthly income of the claimant; the Tribunal erred in
applying multiplier “16” while calculating amount under the head
“Permanent Disability”;
7. The learned counsel for the appellant further
submitted that there was a delay in lodging the FIR. The
respondent/claimant is put to strict proof of the validity of the
insurance policy of the Lorry and driving license of the driver in
charge at the time of accident. Hence, this appeal is filed to set aside
the order of the Tribunal.
8. In reply, the learned counsel for the
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C.M.A.No.3069 of 2012
respondent/claimant submitted that the Tribunal has considered all
the relevant documents adduced by both the parties and rightly come
to the conclusion that the Insurance company is liable to pay the
compensation and the amount determined by the Tribunal is just and
fair.
9. This Court considered the submissions made by the
learned counsel for both sides and perused the materials available on
record.
10. The first and foremost contention of the
appellant/Insurance Company was that the Lorry bearing
Registration No.TNU-5956 insured with the appellant was falsely
implicated in the accident and also denied the manner of accident. In
this regard, the claimant examined himself as PW1 and marked
Ex.P1, attested copy of FIR, Ex.P2, attested copy of Rough Sketch
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C.M.A.No.3069 of 2012
and Ex.P3, attested copy of Charge Sheet and proved that due to the
negligence of the Lorry bearing Reg.No.TNU-5956, the stone hit his
eye and he lost his vision in the right eye. However, no contrary
evidence was placed as against the evidence of PW1. Therefore, this
Court is not able to accept the submission of the appellant/Insurance
Company. Hence, the findings of the Tribunal that due to the rash
and negligent driving of the driver of the Lorry bearing
Reg.No.TNU-5956 the said accident occurred and its insurer, the
appellant/Insurance Company is liable to pay the compensation
amount to the claimant, are confirmed.
11. The next point for consideration is that the appellant
has submitted that the Tribunal has fixed excessive percentage of
disability, i.e., 40% for the injuries sustained by the claimant. It is an
admitted fact that while fixing disability by a Doctor, it may vary
around 10% from one Doctor to another, and hence, considering the
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C.M.A.No.3069 of 2012
injury sustained by the claimant, disability is fixed at 30%.
12. As far as the monthly income of the claimant, it is
the submission of the learned counsel for the appellant that the
Tribunal has fixed a sum of Rs.4,500/- as monthly income without
verifying the fact that as to whether the claimant had suffered any
loss of earning capacity due to the accident. However, the claimant
has marked Ex.P6, his driving licence to show that he was working
as a driver-cum-coolie in Lorry and by examining PW2 he proved
that due to the accident, he lost his vision in the right eye. Thus, he
proved that he is not able to continue his job as a Driver.
Considering the said aspects, this Court is of the view that the
Tribunal has rightly fixed the monthly income of the claimant at
Rs.4500/-.
13. As far as the amount awarded under the head
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C.M.A.No.3069 of 2012
“Permanent Disability” is concerned, the appellant has submitted
that the Tribunal has erred in applying multiplier “16” and awarded
exorbitant amount. Considering the age of the claimant was 37 at the
time of the accident, the correct multiplier to be applied as per
“Sarala Varma case” is “15”. Thus, this Court is of the view that by
taking multiplier “15”, and by taking the disability at 30% the
amount awarded under the head permanent disability is modified as
Rs.2,43,000/- [(4,500 x 12 x 15) x 30%].
14. The petitioner was hospitalised as inpatient for a
long time and hence, a sum of Rs.12,000/- is awarded under the head
“Attender Charges”. Further, considering the treatment underwent
by the claimant, a sum of Rs.15,000/- is awarded under the head
“Loss of amenities”
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C.M.A.No.3069 of 2012
15. The amounts awarded by the Tribunal under all the
other heads are just, fair and reasonable, and hence, they are
confirmed.
16. Thus, this Court has enhanced the compensation
amount under the heads as follows:
Heads Amount awarded by Amount awarded
the Tribunal in Rs. by this Court in Rs.
Loss of Earnings 18,000/- 18,000/-
(Rs.4,500 pm x 4 months)
Transport Charges 5,000/- 10,000/-
Extra Nourishment 10,000/- 10,000/-
Pain and Sufferings 30,000/- 30,000/-
Attendance Charges 12,000-
Loss of Amenities 15,000/-
Permanent Disability (4,500 p.m x 12 x 16 (4,500 p.m x 12 x 15
x 40%) x 30%)
3,45,600/- 2,43,000/-
Total 4,08,600/- 3,38,000/-
17. In the result, the Civil Miscellaneous appeal is
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C.M.A.No.3069 of 2012
partly allowed, by reducing the total compensation amount to
Rs.3,38,000/- from Rs.4,08,600/- along with interest at the rate of
7.5% per annum from the date of petition till the date of deposit.
18. The appellant/Insurance Company shall deposit the
reduced compensation amount of Rs.3,38,000/-, as awarded by this
Court, along with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit, 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 being made, the
claimant is permitted to withdraw the award amount, less the amount
if any already withdrawn by filing necessary application before the
Tribunal. No costs.
10.02.2021
Internet : Yes/No
dna
D.KRISHNAKUMAR, J.,
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3069 of 2012
dna
1.The Motor Accident Claims Tribunal /
IV Judge, Court of Small Causes, Chennai.
2.The New India Assurance Co.Ltd.,
21, Pattulos Road, Chennai -2.
CMA.No.3069 of 2012
10.02.2021
https://www.mhc.tn.gov.in/judis/
