Madras High Court

The National Insurance Company ... vs Saravanan on 24 February, 2021

                                                                                C.M.A.No.2209 of 2014

                            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 24.02.2021

                                                      CORAM

                           THE HONOURABLE MR.JUSTICE D. KRISHNAKUMAR

                                              C.M.A.No.2209 of 2014

                 The National Insurance Company Ltd.,
                 Branch Manager,
                 Divisional Office, 2nd Floor,
                 Balaji Towers,
                 No.11, Ramakrishna Road,
                 Salem – 636 007.                                  ... Appellant

                                                       Vs.

                 1.Saravanan
                   S/o.Chettiar

                 2.Ramakrishnan
                   S/o.Rathinam                                    ... Respondents

                 PRAYER:          Civil Miscellaneous Appeal filed under Section 173 of Motor
                 Vehicle Act, 1988, to set aside the judgment and decree dated 03.09.2013 made
                 in M.C.O.P.No.76 of 2011 on the file of Motor Accident Claims Tribunal,
                 Additional District Judge, Dharmapuri District.


                                      For Appellant    : Mr.K.Padmanabhan

                                      For Respondents : Mr.M.Selvam [for R1]
                                                         R2 – Notice unserved
                                                     *****

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                                                                                          C.M.A.No.2209 of 2014

                                                         JUDGMENT

The Appellant/Insurance Company has filed this appeal against the

judgment and decree dated 03.09.2013 made in M.C.O.P.No.76 of 2011 on the

file of Motor Accident Claims Tribunal, Additional District Judge, Dharmapuri

District.

2. The learned counsel appearing for the appellant submits that the

second respondent was set exparte.

3. The case of the first respondent/claimant is as follows:

On 08.10.2010 the first respondent/claimant was proceeding in his Bajaj

Discover bearing Registration No.TN-24-H-9496 from Krishnagiri to

Pananthoppu village. While he was riding his bike on the left side of the road

nearing Krishnagiri to Rayakottai main road near court campus, at that time, a

TATA Indica Car bearing Registration No.TN-30-AB-6904 driven by its driver

in a rash and negligent manner and dashed against the first

respondent/claimant. Due to that the first respondent/claimant sustained injury

on his left knee and sustained fracture of tibia and fibula on the left leg. The

accident had happened only due to the rash and negligent driving of the driver

of the TATA Indica Car. After the accident, the first respondent/claimant was http://www.judis.nic.in

C.M.A.No.2209 of 2014

taken to the Government Hospital, Krishnagiri and admitted there as an in-

patient. Later he was taken to Sparsh Hospital, Banglore and admitted there as

in-patient and operations was conducted on his knee. Still he is taking periodical

treatment in the above said Hospital. Due to the accident the first

respondent/claimant had sustained grievous injuries and permanent

disablement. Krishnagiri police registered the case against the driver of the Car

in Cr.No.578/2010 under Section 279, 337 of IPC. At the time of accident, the

first respondent/claimant was working as a mason and was earning a sum of

Rs.10,000/- per month. Since the first respondent/claimant suffered permanent

disability, he is not able to carry on his avocation as he was doing before.

Hence, the first respondent/claimant filed a claim petition seeking compensation

of a sum of Rs.7,00,000/- for the injuries suffered by him in the accident.

4. Resisting the claim made by the first respondent/claimant, the

Appellant/Insurance Company has filed a detailed counter statement inter alia

stating that the accident did not occur in the manner as projected by the first

respondent/claimant. They had also denied the occupation and income of the

first respondent/claimant. Thus, they prayed for dismissal of the claim petition.

5. Before the Tribunal, to prove his case, the first respondent/claimant http://www.judis.nic.in

C.M.A.No.2209 of 2014

was examined as P.W.1 and one Dr.Krishnakumar was examined as P.W.2 and

8 documents were marked as Ex.P1 to Ex.P.8. On the side of the

appellant/Insurance Company, none were examined and no exhibits were

marked.

6. On appreciation of materials, the Tribunal arrived at a finding that the

accident had occurred due to rash and negligent driving of the driver of the

TATA Indica Car bearing Registration No.TN-30-AB-6904 and held that the

appellant/Insurance Company, as insurer of the said vehicle, is liable to pay

compensation. Accordingly, the Tribunal has awarded a sum of Rs.3,84,324/-

as compensation. The break-up details are as follows:-

                          Sl.      Compensation awarded                   Amount
                          No.         under the head                      (in Rs.)
                            1   Loss of income                                   3,18,240.00

                           2.   Transportation                                       5,000.00
                           3.   Pain and Suffering                                 10,000.00
                           4.   Nutrition                                            5,000.00
                           5.   Medical Expenses                                   46,084.00
                                                          Total                  3,84,324.00

The said sum was directed to be paid together with interest at 7.5% p.a., from

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C.M.A.No.2209 of 2014

the date of claim petition till the date of realization. Challenging the same, the

appellant/Insurance Company has filed the present appeal.

7. Heard the learned counsel for the appellant/Insurance Company and

the learned counsel for the first respondent/claimant.

8. Learned counsel for the appellant/Insurance Company contended that

the first respondent/claimant has suffered 40% disability in the accident. The

Tribunal has awarded compensation by adopting multiplier method. According

to the Appellant/Insurance Company multiplier cannot be adopted, in the

present case, to award the compensation to the appellant. According to the

learned counsel for the appellant/Insurance Company, the first

respondent/claimant has not placed any material or evidence to establish that

due to the said injury, there is a loss of future prospects and income. Unless the

first respondent/claimant has established that due to the injuries sustained in the

accident, he has suffered loss of future prospects, the application of multiplier is

unwarranted.

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C.M.A.No.2209 of 2014

9. Learned counsel fairly submitted that a reasonable compensation

amount may be fixed based on the disability suffered by the first

respondent/claimant. Therefore, the said award passed by the Tribunal is liable

to be modified.

10. Learned counsel for the first respondent/claimant submitted that the

first respondent/claimant has suffered 45% disability in the accident and he was

unable to walk, stand and do work due to the accident. The first

respondent/claimant was a mason and he is suffering due to the said disability.

In fact, the compensation awarded by the Tribunal is very much on the lower

side and hence, he seeks enhancement of compensation.

11. This Court has considered the rival submissions and perused the

materials on record.

12. On perusal of the materials, this Court finds that the first

respondent/claimant suffered 45% disability as per evidence of P.W.2, Doctor.

The said assessment was accepted by the Tribunal. There is no dispute with

regard to the permanent disability suffered by the first respondent/claimant. The

question that arises for consideration is that whether the application of http://www.judis.nic.in

C.M.A.No.2209 of 2014

multiplier, in the present case, is justifiable?

13. Learned counsel for the first respondent/claimant submitted that the

claimant had suffered 45% disability due to the accident. He was doing mason

work. Therefore, due to the said accident his future employment is bleak.

Therefore, the Tribunal has rightly adopted the multiplier method for the loss of

future earning capacity of the first respondent/claimant.

14. According to the first respondent/claimant, he was working as a

mason at the time of the accident. P.W.2, Doctor, was examined on the side of

the first respondent/claimant. The first respondent/claimant had suffered 45%

disability due to the said accident. In the absence of any evidence before the

Tribunal to show that due to the said disability the first respondent/claimant is

unable to carry on his avocation as he was doing before and no other supporting

evidence also placed before the Tribunal.

15. In support of the claim for future loss of earning capacity of the first

respondent/claimant, on perusal of the records, there is no specific evidence

adduced on the side of the first respondent/claimant to prove that there is future

loss of earning capacity due to the said injury caused by the said accident. http://www.judis.nic.in

C.M.A.No.2209 of 2014

Therefore, there is some force in the contention of the appellant/Insurance

Company that the said multiplier adopted by the Tribunal is not in consonance

with the decision of the Hon'ble Supreme Court. Taking into consideration the

decision of the Hon'ble Supreme Court in the case of Rajkumar Vs. Ajay

Kumar and Another [2011 (1) SCC 343], this Court is of the view that the

present case does not warrant application of multiplier as the first

respondent/claimant has not established that he suffers loss of future prospects

and finds it difficult to carry on his avocation.

16. The first respondent/claimant has not satisfied the aforesaid criteria

as laid down by the Hon'ble Supreme Court. Hence, this Court has come to the

conclusion that the Tribunal has wrongly adopted the multiplier method to

determine the compensation amount to the first respondent /claimant. No doubt

that the first respondent/claimant is entitled for the compensation amount for

the disability suffered in the said accident. With regard to this aspect, P.W.2,

Doctor, has given evidence that the claimant suffered 45% disability due to the

said accident. By taking note of that fact, this Court fixes at the rate of

Rs.2,000/- per percentage to be calculated for arriving at the compensation for

disability and it comes to Rs.90,000/- under the head for Permanent

Disablement” and the other heads require enhancement of amounts to the first http://www.judis.nic.in

C.M.A.No.2209 of 2014

respondent/claimant. Thus this Court calculates the compensation under various

heads as follows:-

                          Sl.No.     Compensation awarded               Amount
                                        under the head                  (in Rs.)
                          1.       Disability 45%                               90,000.00
                          2.       Medical Expenses                             46,084.00
                          3.       Pain and Suffering                           20,000.00
                          4.       Nutrition                                    10,000.00
                          5.       Attendant Charges                               5,000.00
                          6.       Transport                                    10,000.00
                          7.       Loss of Income                                  9,000.00
                          8.       Loss of Amenities                            10,000.00
                                                        Total                 2,00,084.00

17. In the result, this Civil Miscellaneous Appeal is partly allowed, the

total compensation of Rs.3,84,324/- awarded by the tribunal is reduced to

Rs.2,00,084/- round off to Rs.2,00,000/- along with interest at the rate of 7.5%

per annum.

18. The appellant/Insurance Company shall deposit the modified

compensation amount, 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 six weeks from the date of

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C.M.A.No.2209 of 2014

receipt of a copy of this judgment. On such deposit being made, the first

respondent/claimant is permitted to withdraw the modified amount by filing