Madras High Court
M/S.The New India Assurance Co. ... vs Devi .. 1St on 18 February, 2021
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.Nos.260 and 261 of 2020 and
C.M.P.Nos.1849 and 1850 of 2020
and Cross Objection No.12 of 2020
C.M.A.Nos.260 and 261 of 2020
M/s.The New India Assurance Co. Ltd.
Motor Third Party Claims
No.45, Moore street
Chennai-1. .. Appellant in
both the appeals
Vs.
1.Devi .. 1st Respondent in C.M.A.No.260 of 2020
1.V.Raja .. 1st Respondent in C.M.A.No.261 of 2020
2.P.Anbusingh .. 2nd respondent in both the CMAs.
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the judgment and decree dated 29.04.2019
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
made in M.C.O.P.Nos.806 and 786 of 2015 on the file of the Motor Accident
Claims Tribunal, III Small Causes Court, Chennai.
In both the CMAs.
For Appellant : Mr.J.Chandran
For R1 : Mr.K.Suryanarayanan
For R2 : No appearance
Cross Objection No.12 of 2020
V.Raja .. Cross objector
Vs.
1.M/s.The New India Assurance Co. Ltd.
Motor Third Party Claims
No.45, Moore street
Chennai-1.
2.P.Anbusingh .. Respondents
Prayer: This Cross Appeal is filed under Order XLI Rule 22 of C.P.C against
C.M.A.No.261 of 2020 filed by the Insurance Company against the judgment
and decree dated 29.04.2019 made in M.C.O.P.No.786 of 2015 on the file of
the Motor Accident Claims Tribunal, III Small Causes Court, Chennai.
For Cross Appellant : Mr.K.Suryanarayanan
For R1 : Mr.J.Chandran
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
COMMON JUDGMENT
These Civil Miscellaneous Appeals have been filed by the Insurance
Company to set aside the award dated 29.04.2019 made in M.C.O.P.Nos.806
and 786 of 2015 on the file of the Motor Accident Claims Tribunal, III Small
Causes Court, Chennai.
The Cross-Objection has been filed by the 1st respondent in
C.M.A.No.261 of 2020 seeking enhancement of compensation granted by the
Tribunal in the award dated 29.04.2019 made in M.C.O.P.No.786 of 2015 on
the file of the Motor Accident Claims Tribunal, III Small Causes Court,
Chennai.
2.The appellant/Insurance Company is the 2nd respondent in
M.C.O.P.Nos.806 and 786 of 2015 on the file of the Motor Accident Claims
Tribunal, III Small Causes Court, Chennai. The 1st respondent in
C.M.A.Nos.260 and 261 of 2020 filed the said claim petitions claiming a sum
of Rs.5,00,000/- and Rs.20,00,000/- as compensation for the injuries
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
sustained by them in the accident that took place on 07.09.2014.
3.According to the 1st respondent in C.M.A.Nos.260 and 261 of 2020,
on the date of accident i.e., on 07.09.2014 at 16.15 hours, while the 1st
respondent in C.M.A.No.261 of 2020 was riding the motorcycle along with
his wife, the 1st respondent in C.M.A.No.260 of 2020 as a pillion rider on
ECR Road, opposite to Puliguhai, the driver of the car, who was coming from
Chennai drove the same in a rash and negligent manner, dashed against the
car and caused the accident. In the accident, the 1st respondent in both the
appeals sustained grievous injuries all over the body and therefore, they filed
the above claim petitions claiming compensation as against the 2nd
respondent, owner of the car and the appellant/Insurance Company.
4.The 2nd respondent, owner of the car, remained exparte before the
Tribunal.
5.The appellant/Insurance Company insurer of the car filed separate
counter statements in both the claim petitions denying the averments made in
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
the claim petitions and stated that the cover note dated 02.09.2014 for the
period from 02.09.2014 to 01.09.2015 alleged to have been issued for the car
belonging to the 2nd respondent is a fake and fabricated policy. The said cover
note was issued against the policy No.722000/31/13/01/00002550 for the
period of one year from 02.09.2013 to 01.09.2014 only. In the absence of
valid Insurance policy, the appellant/Insurance Company is not liable to
indemnify the 2nd respondent and the Insurance Company may be exonerated
from the liability. The 1st respondent in C.M.A.No.261 of 2020 alone rode the
motorcycle without following the traffic rules while riding on ECR Road. The
pillion rider of the motorcycle ought to have cautioned the rider of the
motorcycle of his rash and negligent riding. The insurer of the motorcycle
was not made as party to the claim petitions and hence, the claim petitions are
bad for non-joinder of necessary parties. The 1st respondent in both the
appeals have to prove that the driver of the car belonging to the 2 nd
respondent possessed valid driving license to drive the vehicle. Therefore, the
appellant/Insurance Company is not liable to pay any compensation to the 1st
respondent in both the appeals. The appellant has also denied the age,
avocation, income and nature of injuries sustained by the 1st respondent in
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
both the appeals. In any event, the compensation claimed by the 1st
respondent in both the appeals are excessive and prayed for dismissal of the
claim petitions.
6.Before the Tribunal, the 1st respondent in C.M.A.Nos.260 and 261 of
2020 examined themselves as P.W.2 and P.W.1 respectively and 24
documents were marked as Exs.P1 to P24. The appellant/Insurance Company
did not let in any oral and documentary evidence.
7.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 car belonging to the 2nd respondent as well as the rider of the
motorcycle, the 1st respondent in C.M.A.No.261 of 2020, fixed 90 : 10
negligence on the part of the driver of the car belonging to the 2nd respondent
and the rider of the motorcycle, the 1st respondent in C.M.A.No.261 of 2020,
awarded a sum of Rs.1,55,400/- and Rs.11,18,800/- as compensation to the 1st
respondent in C.M.A.Nos.260 and 261 of 2020 respectively and directed the
appellant/Insurance Company being insurer of the said car to pay a sum of
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
Rs.1,55,400/- (entire compensation) to the 1st respondent in C.M.A.No.260 of
2020 and Rs.10,06,920/- being 90% of the award amount as compensation to
the 1st respondent in C.M.A.No.261 of 2020.
8.Challenging the quantum of compensation awarded by the Tribunal
in the said award dated 29.04.2019 made in M.C.O.P.Nos.806 and 786 of
2015, the appellant/Insurance Company has come out with C.M.A.Nos.260
and 261 of 2020. Not being satisfied with the amounts awarded by the
Tribunal, the 1st respondent in C.M.A.No.261 of 2020 has come out with
Cros.Obj.No.12 of 2020 seeking enhancement of compensation awarded by
the Tribunal.
9.The learned counsel appearing for the appellant/Insurance Company
contended that the compensation awarded by the Tribunal for the injuries
sustained by the 1st respondent in both the appeals, who are aged 30 years and
35 years are excessive. The 1st respondent in both the appeals failed to
produce continuous medical treatment records. In the absence of continuous
treatment records, the Tribunal erroneously accepted the disability assessed
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
by the Medical Board. The Tribunal while awarding compensation failed to
follow the judgments of this Court and the Hon'ble Apex Court. The Tribunal
erroneously granted excessive amount under different heads and prayed for
setting aside the award of the Tribunal and dismissal of the Cross-objection
filed by the 1st respondent in C.M.A.No.261 of 2020.
10.Per contra, the learned counsel appearing for the
1st respondent in C.M.A.No.261 of 2020/cross-objector contended that the 1st
respondent sustained grievous injuries in the accident and due to which, he
suffered functional disability. The Medical Board examined the 1st respondent
and certified that the 1st respondent suffered 60% disability. The Tribunal
without considering the same, adopted percentage method and awarded a
sum of Rs.3,000/- per percentage of disability, which is meagre. The Tribunal
ought to have adopted multiplier method and awarded compensation towards
loss of earning capacity. The 1st respondent was a driver-cum-owner of TATA
Ace vehicle and was earning a sum of Rs.20,000/- per month at the time of
accident. The Tribunal without considering the same, fixed only a sum of
Rs.10,000/- per month as notional income of the 1st respondent. The 1st
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
respondent has taken treatment in the hospital as in-patient for 177 days. The
amounts awarded by the Tribunal towards attendant charges and loss of
income during treatment period are meagre and prayed for enhancement of
compensation and dismissal of the appeal filed by the appellant/Insurance
Company.
11.The learned counsel appearing for the 1st respondent in
C.M.A.No.260 of 2020 contended that the Tribunal considering all the
materials on record, awarded compensation under different heads, which are
not excessive and prayed for dismissal of the appeal filed by the
appellant/Insurance Company.
12.Though notice has been served on the 2nd respondent and his name
is printed in the cause list, there is no representation for the 2nd respondent
either in person or through counsel.
13.Heard through “Video-conferencing” the learned counsel appearing
for the appellant/Insurance Company as well as the learned counsel appearing
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
for the 1st respondent in both the appeals and perused the entire materials
available on record.
C.M.A.No.260 of 2020 (M.C.O.P.No.806 of 2015)
14.It is the case of the 1st respondent that she suffered fracture of right
elbow and head injury in the accident. She was referred to Medical Board and
the Medical Board after examining the 1st respondent certified that the 1st
respondent suffered 30% disability. The appellant/Insurance Company has
not let in any contra evidence with regard to disability assessed by the
Medical Board. The Tribunal considering the documents placed before it
accepted the disability assessed by the Medical Board and considering the
nature of injuries and period of treatment taken by the 1st respondent, granted
compensation under different heads, which are not excessive warranting
interference by this Court.
C.M.A.No.261 of 2020 (M.C.O.P.No.786 of 2015)
15.It is the case of the 1st respondent that in the accident, he suffered
Grade 3C communited fracture of both bones of right leg and underwent skin
grafting. Due to the grievous injuries, he could not continue his avocation.
From the materials on record, it is seen that he was treated in Sri
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
Ramachandra Medical Centre, Porur, as in-patient for 177 days from
07.09.2014 to 10.09.2014, 10.09.2014 to 23.10.2014, 23.10.2014 to
12.01.2015, 02.08.2016 to 20.08.2016 and 20.08.2016 to 19.09.2016 and
underwent six surgeries. The 1st respondent was referred to Medical Board.
The Medical Board after examining the 1st respondent certified that the 1st
respondent suffered 60% disability. The appellant/Insurance Company has
not let in any contra evidence with regard to disability assessed by the
Medical Board. The Tribunal considering the documents placed before it
accepted the disability assessed by the Medical Board and held that it cannot
be presumed that due to the disability sustained in the accident, the 1 st
respondent's avocation as driver had been affected and granted compensation
by adopting percentage method. Hence, the contention of the learned counsel
appearing for the 1st respondent that the Tribunal accepted the disability as
functional disability is contrary to the materials on record. The 1st respondent
has not examined any Doctor to prove that he cannot do the work as driver or
he cannot do any work due to the injuries and disability. In view of the same,
the 1st respondent is not entitled to any compensation by adopting multiplier
method. The accident is of the year 2014 and a sum of Rs.3,000/- awarded by
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
the Tribunal per percentage of disability is meagre. This Court by the
judgment reported in 2020 (1) TN MAC 617 [M. Chinnathambi Vs.
S.Deepa and another], fixed a sum of Rs.4,000/- per percentage of disability
for the accident occurred in the year 2014 & 2015 and a sum of Rs.5,000/-
per percentage of disability for the accident occurred from the year 2016
onwards, due to rise in cost of living. In the present case, the accident is of
the year 2014. In view of the same, a sum of Rs.4,000/- is awarded per
percentage of disability. Thus, the compensation awarded by the Tribunal
towards disability is modified to Rs.2,40,000/- (Rs.4,000/- X 60%).
15(i) The 1st respondent has taken treatment as in-patient in the hospital
for 177 days in different spells. The compensation awarded by the Tribunal
towards attendant charges is meagre. Considering the disability, nature of
injuries and period of treatment taken by the 1st respondent, the compensation
awarded by the Tribunal towards attendant charges is hereby enhanced to
Rs.1,00,000/-. The amounts awarded by the Tribunal towards pain and
suffering and transportation are excessive and hence, the same are hereby
reduced to Rs.1,00,000/- and Rs.50,000/- respectively.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
15(ii) The 1st respondent contended that he was a driver-cum-owner of
TATA Ace vehicle and was earning a sum of Rs.20,000/- per month at the
time of accident. The 1st respondent failed to substantiate the said contention.
The Tribunal in the absence of any material evidence with regard to income
of the 1st respondent, fixed a sum of Rs.10,000/- as his monthly income. The
accident is of the year 2014 and the monthly income fixed by the Tribunal is
meagre. Hence, a sum of Rs.13,000/- is fixed as monthly income of the 1st
respondent. Due to the injuries, he would not have attended his work atleast
for a period of 12 months. Thus, the compensation awarded by the Tribunal
towards loss of income during treatment period is modified to Rs.1,56,000/-
(Rs.13,000/- X 12). The 1st respondent has not proved by filing document that
he requires future medical treatment. In the absence of any document, the
Tribunal erred in awarding a sum of Rs.1,00,000/- towards future medical
expenses, the same is liable to be set aside and is hereby set aside. The
amounts awarded by the Tribunal under all other heads are just and
reasonable and hence, the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
S.No Description Amount Amount Award
awarded by awarded by confirmed
Tribunal this Court or enhanced
(Rs) (Rs) or granted
1. Disability 1,80,000 2,40,000 Enhanced
2. Pain and suffering 2,00,000 1,00,000 Reduced
3. Extra nourishment 1,00,000 1,00,000 Confirmed
4. Transportation 1,00,000 50,000 Reduced
5. Damage to clothes 1,000 1,000 Confirmed
6. Attendant charges 29,200 1,00,000 Enhanced
7. Medical expenses 2,78,534 2,78,534 Confirmed
8. Future medical 1,00,000 - Set aside
expenses
9. Loss of income 80,000 1,56,000 Enhanced
10. Loss of amenities 50,000 50,000 Confirmed
Total 11,18,734 10,75,534
rounded off to rounded off Reduced by
11,18,800 to Rs.38,880/-
10,75,600 (10,06,920 –
9,68,040)
90% of the 10,06,920 9,68,040
award amount
16. In the result,
(i) C.M.A.No.260 of 2020 filed by the appellant/Insurance Company is
dismissed and the sum of Rs.1,55,400/- awarded by the Tribunal as
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
compensation to the 1st respondent along with interest and costs is
confirmed.
(ii) C.M.A.No.261 of 2020 filed by the appellant/Insurance Company
is partly allowed and Cross Objection No.12 of 2020 filed by the 1st
respondent is partly allowed in respect of the heads “disability, attendant
charges and loss of income”. The compensation awarded by the Tribunal at
Rs.11,18,800/- is hereby reduced to Rs.10,75,600/- together with interest at
the rate of 7.5% per annum from the date of petition till the date of deposit.
(iii) The appellant/Insurance Company is directed to deposit the entire
amount awarded by the Tribunal in C.M.A.No.260 of 2020 and deposit a sum
of Rs.9,68,040/- being 90% of the award amount as compensation in
C.M.A.No.261 of 2020 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.
(iv) On such deposit, the 1st respondent in C.M.A.No.260 of 2020 is
permitted to withdraw the entire amount awarded by the Tribunal and the 1st
respondent in C.M.A.No.261 of 2020 is permitted to withdraw the award
amount now determined by this Court, along with interest and costs, less the
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
amount if any, already withdrawn.
(v) In C.M.A.No.261 of 2020, the appellant/Insurance Company is
permitted to withdraw the excess amount lying in the deposit to the credit of
M.C.O.P.No.786 of 2015 on the file of the Motor Accident Claims Tribunal,
III Small Causes Court, Chennai, if the award amount has already been
deposited by them. Consequently, connected Miscellaneous Petitions are
closed. No costs.
18.02.2021
Index : Yes
kj
To
1.III Judge
Motor Accident Claims Tribunal,
Small Causes Court, Chennai.
2.The Section Officer
V.R.Section, High Court
Chennai.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.260 and 261 of 2020 and Cros.Obj.No.12 of 2020
V.M.VELUMANI, J.,
kj
C.M.A.Nos.260 and 261 of 2020 and
C.M.P.Nos.1849 and 1850 of 2020
and Cross Objection No.12 of 2020
18.02.2021
https://www.mhc.tn.gov.in/judis/
