Madras High Court
National Insurance Company ... vs Basavanna on 23 February, 2021
1 CMA No.2065 of 2017 and
Cross Appeal 51 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.2065 of 2017
and
Cross Appeal 51 of 2020
CMA No.2065 of 2017
National Insurance Company Limited,
having its office at
73, Perundhurai Road,
Erode-11. ...Appellant
Vs
1.Basavanna
2.Madevaiya
3.M.Nakesh
(Respondents 2 and 3 were set exparte by the court
below. Hence dispensed with) ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 22.06.2015
made in M.C.O.P.No.395 of 2011 on the file of the Motor Accidents Claims
Tribunal, Sub Court, Sathyamangalam..
http://www.judis.nic.in
Cross Appeal 51 of 2020
For Appellant : Mr.K.Padmanabhan
For Respondents : Mr.Ma.P.Thangavel for R1
R2 and R3-Exparte
Cross Appeal No.51 of 2020:
Basavanna ...Cross Objector
vs
1.National Insurance Company Limited,
having its office at
73, Perundhurai Road,
Erode-11.
2.Madevaiya
3.M.Nakesh
(Respondents 2 and 3 were set exparte by the court
below. Hence dispensed with) ...Respondents
PRAYER: Cross Appeal filed under Order 41 Rule 22 of CPC, against the
judgment and decree dated 22.06.2015 made in M.C.O.P.No.395 of 2011
on the file of the Motor Accidents Claims Tribunal, Sub Court,
Sathyamangalam..
For Cross Objector : Mr.Ma.P.Thangavel
For Respondents : Mr.K.Padmanabhan for R1
R2 and R3-Exparte
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Cross Appeal 51 of 2020
C O M M ON J U D G M E N T
The appeal is filed by the Insurance Company being aggrieved by the
award passed by the Tribunal in the claim petition filed by the accident
victim.
2.The claimant has filed Cross Appeal No.51 of 2020 for
enhancement of compensation.
3. On 29.03.2011, when the claimant and his friend were going in
Hero Honda bearing Registration No.TN 36 V 8931, in which the claimant
was on the pillion, near Sericulture Department quarters on the Talavadi to
Talamalai road, a motor cycle bearing Registration No.TN 36 V 6726
coming from the opposite direction rash and negligently dashed against the
motor cycle, in which the claimant was travelling as a pillion rider. In the
said accident, the claimant sustained severe injury and was taken to the
Government hospital, Sathyamangalam, later shifted to Coimbatore Medical
College Hospital and treated as inpatient till 05.05.2007. In the said
accident, the claimant has sustained fracture of left leg. His normal
functioning got crippled. The claim petition was filed against the owner of
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Cross Appeal 51 of 2020
the offending motor cycle and its insurer. The rider of his motor cycle was
also arrayed as respondent. Claim of Rs.10,00,000/- was sought on the
ground that the claimant was earning Rs.10,500/- per month as a Mason and
due to the injury, he has lost his livelihood.
4.The Insurance Company filed counter resisting the claim on the
ground that the accident occurred due to the motor cyclist in which the
claimant was travelling as a pillion rider. The rider of the motor cycle had
no valid driving license. It was his motor cycle, which hit the other vehicle
insured under them.
5. Prosecution was launched against the first respondent and final
report was also filed against him by the police on investigation attributing
the negligence on the part of the first respondent. Since the first respondent
is the tort feasor, the Insurance Company is not responsible to indemnify the
claimant.
6.Before the Tribunal, the claimant and the Doctor, who gave the
disability certificate were examined as P.W.1 and P.W.2. 13 exhibits were
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Cross Appeal 51 of 2020
marked in support of the claim petition. The Insurance Company examined
one witness and marked the Insurance Policy copy as Ex.R1.
7.The Tribunal after considering the evidence has awarded a sum of
Rs.7,98,750/- with 7.5% interest payable from the date of petition till the
date of realisation and liberty was given to the Insurance Company to
recover the said amount from the respondents 1 and 2 who are the driver
and the owner of the motor cycle.
8.The appeal is filed on the ground that the Insurance Company ought
to have totally exonerated from the liability, since the rider of the motor
cycle viz., the first respondent had no valid driving license. For the breach
of policy condition, the Insurance Company should be exonerated from
paying any compensation. Further, the learned counsel appearing for the
appellant submitted that for the injury sustained by the claimant are not
scheduled injury, however the Tribunal has erroneously applied the
multiplier and has fixed the percentage of disability on higher side based on
the disability certificate given by the Doctor, who was not the doctor treated
the claimant. Further, the learned counsel stated that the multiplier for the
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Cross Appeal 51 of 2020
persons aged (41-45) is '14' but the Tribunal has taken the multiplier '15',
though the injured age was 41 years. Learned counsel also submitted that in
the absence of proof for income, the Tribunal ought to have taken the
notional income as Rs.6,500/- only but had taken Rs.7,500/- as monthly
income to compute the loss of earning.
9.Learned counsel appearing for the respondent/claimant submitted
that a Cross Appeal has been filed against the said award seeking enhanced
compensation and the same has been numbered as Cross Appeal No.51 of
2020. According to the learned counsel for the claimant, the injury
sustained by the claimant had totally crippled his normal life and he has lost
his earning capacity in full. Ex.P5 will show that there is a shortening of
the left leg and the claimant is unable to stand or sit for a long time. Further,
the notional income of the claimant ought to have been fixed at Rs.10,000/-
per month but the Tribunal without assigning any reason had fixed only as
Rs.7,500/-.
10.Heard the learned counsel for the appellant and the respondent.
Perused the records and the grounds of the appeal.
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Cross Appeal 51 of 2020
11.The accident victim had sustained injury while he was travelling on
the pillion in the motor cycle owned by the second respondent insured under
the third respondent. It is proved through evidence that the rider of the
motor cycle in which the claimant travelling on the pillion had no valid
driving license. Before the Tribunal, 13 exhibits were marked and from the
F.I.R., final report of the police which is marked as Ex.P1 and Ex.P2, this
Court finds that the F.I.R was registered against the first respondent for his
rash and negligent driving. The Tribunal accepting the said evidence and
has ordered pay and recovery. The claimant being the third party, this Court
finds no error in the said order.
12.As far as the quantum of compensation is concerned, in the
absence of proof of income, the Tribunal has taken notional income of the
claimant as Rs.7,500/- as against the claim of Rs.10,500/-. The Tribunal has
assigned the reason for fixing the notional income as Rs.7,500/- after relying
upon the judgment of this Court in Managing Director, TNSTC vs
Samboornam. Being a skilled labour, this Court is not inclined to interfere
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Cross Appeal 51 of 2020
the fixation of notional income by the Tribunal, since the reasoning given by
the Tribunal appears to be just.
13.Coming to the application of multiplier, to find whether the injury
sustained by the claimant has caused difficulty or impediment in his earning
capacity, it is necessary to look into the nature of injury sustained by the
claimant. Though P.W.2 has opined that the injury has caused 80% partial
disability, as pointed out by the learned counsel for the appellant, P.W.2 is
not the doctor who treated the injured. The disability certificate dated
17.04.2014, three years after the accident has been given by P.W.2, based
on the previous medical record and X-ray findings. 80% disability for left
leg foot shortening of circumference and mal united fracture is highly
excessive by any yardstick. Even for amputation of one limb under the W.C.
Act, the percentage of total disability is only 50% whereas for mal united
fracture, the doctor has certified the disability at 80%. Therefore, this Court
is of the view that even if multiplier has to be applied in this case, the
percentage of disability cannot be fixed as high as 50%. Taking note of the
avocation of the claimant and the nature of the injury as found in the
disability certificate Ex.P12 and Ex.P5 Accident Register, this Court fixes
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Cross Appeal 51 of 2020
40% functional disability for computing the loss of income
(7,500X14X40/100X12). Accordingly, the award of the Tribunal is
modified as below:
Compensation under Various Award passed by this
Heads Court
Loss of income due to Rs.5,04,000/-
40% functional disability
(7,500X14X40/100X12)
Pain and Suffering Rs. 40,000/-
Medical Bills Rs. 5,241/-
Transport Rs. 8,500/-
Attender Charges Rs. 10,000/-
Loss of earning during the treatment Rs. 22,500/-
period (7500X3)
Total Rs.5,90,241/-
14. The said amount with interest at the rate of 7.5% p.a. from the
date of petition till the date of realisation shall be paid by the Insurance
Dr.G.JAYACHANDRAN,J.
VRI
Company within a period of twelve weeks from the date of receipt of a copy
of this judgment. If any amount already deposited, the same may be taken
into account and the balance to be paid by the Insurance Company. On such
deposit, the claimant is permitted to withdraw the same on appropriate
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Cross Appeal 51 of 2020
application.
15. Accordingly, the Civil Miscellaneous Appeal and Cross Appeal
are disposed of. No order as to costs.
23.02.2021
vri
To
Motor Accidents Claims Tribunal
Sub Court, Sathyamangalam..
CMA NO.2065 OF 2017
and
Cross Objection No.51 of 2020
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