Madras High Court
M/S. Bharathi Axa General ... vs Chandrasekar on 26 February, 2021
C.M.A.No.4084 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.4084 of 2019
and
C.M.P.Nos.23051 of 2019 & 11784 of 2020
M/s. Bharathi Axa General Insurance Company Limited,
2nd Floor, Metro Plaza,
No.162, Annasalai,
Chennai – 600 002. .. Appellant
Vs.
1.Chandrasekar
2.M.Thirumaravan .. Respondents
(2nd respondent remained exparte before Tribunal.
Hence, notice to 2nd respondent dispensed with)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
30.10.2018 made in M.C.O.P.No.4175 of 2014 on the file of the Motor
Accidents Claims Tribunal, VI Small Causes Court, Chennai.
For Appellant : Ms.S.Kumudha
for Mr.K.Poomalai
For R1 : Mr.T.G.Ravichandran
1/9
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C.M.A.No.4084 of 2019
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside the award
dated 30.10.2018 made in M.C.O.P.No.4175 of 2014 on the file of the Motor
Accidents Claims Tribunal, VI Small Causes Court, Chennai.
2.The appellant is the 2nd respondent in M.C.O.P.No.4175 of 2014 on
the file of the Motor Accidents Claims Tribunal, VI Small Causes Court,
Chennai. The 1st respondent filed the said claim petition, claiming a sum of
Rs.9,50,000/- as compensation for the injuries sustained by him in the
accident that took place on 13.03.2014.
3.According to 1st respondent, on 13.03.2014 at about 18.00 hours,
while he was waiting on the left side of the Rajaji Salai near Customs Office
to cross the road from West to East direction, the driver of the motorcycle
bearing Registration No.TN 03 J 5292, drove the motorcycle in a rash and
negligent manner and dashed against the 1st respondent and caused the
accident. In the accident, the 1st respondent sustained multiple grievous
injuries all over his body. Therefore, the 1st respondent filed the said claim
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C.M.A.No.4084 of 2019
petition claiming a sum of Rs.9,50,000/- as compensation against the 2nd
respondent and appellant-Insurance Company, being the owner and insurer of
the motorcycle.
4.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 motorcycle belonging to 2nd respondent and directed the
appellant to pay a sum of Rs.7,54,200/- as compensation to the 1st respondent.
5.Questioning the quantum of compensation awarded by the Tribunal
in the award dated 30.10.2018 made in M.C.O.P.No.4175 of 2014, the
appellant has come out with the present appeal.
6.The learned counsel appearing for the appellant contended that the
disability certificate produced by the 1st respondent is not issued by the
Medical Board or qualified Medical Practitioner following the Guidelines &
Gazette Notification issued by the Ministry of Social Justice & Empowerment
and Medical Council Notification. The 1st respondent has not examined any
Doctor to prove the disability suffered by him. The injuries suffered by the 1st
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C.M.A.No.4084 of 2019
respondent is not scheduled injury and the assessment of 40% disability is not
permanent disability. The 1st respondent has not proved that he suffered
functional disability and lost his earning power. The Tribunal ought to have
awarded lesser amount as compensation. The total compensation awarded by
the Tribunal is not in consonance with the facts and circumstances of the case
and prayed for setting aside the award passed by the Tribunal.
7.Per contra, the learned counsel appearing for the 1st respondent
contended that the 1st respondent suffered Grade IV Compound # BB left leg,
external fixation was done and sustained multiple injuries all over the body.
The 1st respondent was examined by the Chief Civil Surgeon, Government
Peripheral Hospital, K.K.Nagar, Chennai and the Chief Civil Surgeon issued
Ex.P8/disability certificate to show that 1st respondent suffered 40%
disability. The Tribunal erroneously fixed 30% as functional disability
instead of 40% and granted lesser amount as compensation. The 1 st
respondent was working as Crane Operator at T & R Agencies, Rajaji Salai,
Chennai and was earning a sum of Rs.15,000/- per month and proved the
same by marking Ex.P10/driving license. Due to the injuries sustained in the
accident, the 1st respondent cannot continue his work as Crane Operator. The
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C.M.A.No.4084 of 2019
Tribunal considering the same, adopted multiplier method and awarded
compensation under different heads, which are not excessive and prayed for
dismissal of the appeal.
8.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 1st respondent and perused the entire
materials on record.
9.From the materials on record, it is seen that the 1st respondent has
suffered Grade IV Compound # BB left leg, external fixation was done and
multiple injuries all over the body. The 1st respondent has taken treatment as
inpatient for 7 days in Stanley Medical College Hospital and has produced
Ex.P8/disability certificate issued by the Chief Civil Surgeon, Government
Peripheral Hospital, K.K.Nagar, Chennai and Ex.P9/passbook issued by the
Department of Welfare of the Differently Abled, Government of Tamil Nadu.
The 1st respondent has not appeared before the Medical Board or not filed any
disability certificate issued by Doctor, who treated the 1st respondent. The 1st
respondent also did not examine any Doctor to prove Ex.P8/disability
certificate, Ex.P9/copy of passbook and that he suffered functional disability
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C.M.A.No.4084 of 2019
and lost his earning power. The Tribunal without any pleadings, oral and
documentary evidence, erroneously held that 1st respondent suffered 30%
disability and granted compensation by adopting multiplier method. Hence,
the multiplier method adopted by the Tribunal is liable to be set aside and it is
hereby set aside. The 1st respondent is entitled to compensation only by
adopting percentage method for 40% of disability as per Ex.P8/disability
certificate. 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 raise 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.1,60,000/- (Rs.4,000/- X 40%
disability). The 1st respondent has taken treatment as inpatient for 7 days and
the amounts awarded by the Tribunal towards attendant charges and loss of
amenities are meagre and the same are enhanced to Rs.10,000/- and
Rs.15,000/- respectively. The amounts awarded by the Tribunal under other
heads are just and reasonable and hence, the same are hereby confirmed.
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C.M.A.No.4084 of 2019
Thus, the compensation awarded by the Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Loss of earning 6,80,400/- 1,60,000/- Reduced
capacity
2. Pain and sufferings 40,000/- 40,000/- Confirmed
3. Extra nourishment 10,000/- 10,000/- Confirmed
4. Transportation 5,000/- 5,000/- Confirmed
5. Damages to clothes 1,000/- 1,000/- Confirmed
6. Attendant charges 2,800/- 10,000/- Enhanced
7. Medical expenses 5,000/- 5,000/- Confirmed
8. Loss of amenities 10,000/- 15,000/- Enhanced
Total Rs.7,54,200/- Rs.2,46,000/- Reduced by
Rs.5,08,200/-
10.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.7,54,200/- is hereby reduced
to Rs.2,46,000/- 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 modified award amount 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, to
the credit of M.C.O.P.No.4175 of 2014 on the file of the Motor Accidents
Claims Tribunal, VI Small Causes Court, Chennai. On such deposit, the 1st
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C.M.A.No.4084 of 2019
respondent is permitted to withdraw the award amount now determined by
this Court, along with interest and costs, less the amount if any, already
withdrawn by making necessary applications before the Tribunal. The
appellant-Insurance Company is permitted to withdraw the excess amount
lying in the credit of M.C.O.P.No.4175 of 2014, if the award amount has
already been deposited by them. Consequently the connected Miscellaneous
Petitions are closed. No costs.
26.02.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The VI Judge,
Motor Accidents Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
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C.M.A.No.4084 of 2019
krk
C.M.A.No.4084 of 2019
26.02.2021
https://www.mhc.tn.gov.in/judis/
