Madras High Court
United India Insurance Company ... vs V.Palanisamy on 26 February, 2021
C.M.A.No.417 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.417 of 2021
and
C.M.P.No.2683 of 2021
United India Insurance Company Limited
having its Branch Office at
No.53/4, old bus stand road
TVR corner building, Perundurai
Perundurai Taluk, Erode District. .. Appellant
Vs.
1.V.Palanisamy
2.M.Rajendran
3.R.Venkatesan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the judgment and decree dated 23.03.2019
made in M.C.O.P.No.288 of 2018 on the file of Motor Accident Claims
Tribunal, Special Sub Court, Erode.
1/8
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C.M.A.No.417 of 2021
For Appellant : Mr.D.Bhaskaran
For R3 : Mr.L.Mouli
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company to set aside the award dated 23.03.2019 made
in M.C.O.P.No.288 of 2018 on the file of Motor Accident Claims Tribunal,
Special Sub Court, Erode.
2.The appellant is 3rd respondent/Insurance Company in
M.C.O.P.No.288 of 2018 on the file of Motor Accident Claims Tribunal,
Special Sub Court, Erode. The 1st respondent filed the said claim petition
claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained
by him in the accident that took place on 09.04.2018.
3.According to the 1st respondent, on the date of accident i.e., on
09.04.2018 at about 6.30 p.m., while he was riding in his TVS XL Super
from Erode towards Vellottamparappu from North to South direction, on the
extreme side of the road, near Vellottamparappu border, the 2nd respondent,
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C.M.A.No.417 of 2021
the driver of the car belonging to the 3rd respondent, who was coming from
South to North direction on Thamaraipalayam to Erode Road, drove the same
in a rash and negligent manner, dashed against the two wheeler rode by the 1 st
respondent and caused the accident. In the accident, the 1 st respondent
sustained grievous injuries all over the body. Therefore, the 1st respondent has
filed the above claim petition claiming compensation against the respondents
2 and 3, who are driver and owner of the car respectively and the
appellant/Insurance Company.
4.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the 2nd respondent, the driver of the car belonging to the 3rd respondent and
directed the appellant/Insurance Company being insurer of the said car to pay
a sum of Rs.6,90,800/- as compensation to the 1st respondent.
5.Challenging the quantum of compensation awarded by the Tribunal
in the said award dated 23.03.2019 made in M.C.O.P.No.288 of 2018, the
appellant/Insurance Company has come out with the present appeal.
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C.M.A.No.417 of 2021
6.The learned counsel appearing for the appellant/Insurance Company
contended that the 1st respondent has not taken any treatment after initial
course of treatment. The disability assessed by P.W.2/Doctor is only a
physical disability and the same is on the higher side. The Tribunal failed to
note that the evidence of P.W.3/Doctor is totally against the treatment records
and he has not followed the guidelines. The 1st respondent has not proved that
he suffered functional disability. As per the judgment of the Hon'ble Apex
Court reported in 2010 (2) TNMAC 581 SC (Raj Kumar vs Ajay Kumar),
the Tribunal should not mechanically apply multiplier method to award
compensation. The amounts awarded by the Tribunal under different heads
are excessive and prayed for allowing the appeal.
7.The learned counsel appearing for the 3rd respondent, owner of the
car contended that the total compensation awarded by the Tribunal is
excessive and in any event, the appellant/Insurance Company is liable to pay
compensation to the 1st respondent.
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C.M.A.No.417 of 2021
8.Heard through “Video-conferencing” the learned counsel appearing
for the appellant/Insurance Company as well as the learned counsel appearing
for the 3rd respondent and perused the entire materials available on record.
9.It is the case of the 1st respondent that he was doing gardening as
well as agricultural work and was earning a sum of Rs.15,000/- per month at
the time of accident. The 1st respondent has not produced any material to
substantiate his avocation and income. The Tribunal considering the date of
accident, nature of work done by the 1st respondent and relying on the
judgment of the Division Bench of this Court reported in 2019 (1) TNMAC
54 DB (Andal vs. Avinav Kannan and others) fixed monthly income of the
1st respondent at Rs.13,700/-. The 1st respondent has suffered bone fracture
and grievous injuries all over the body. He has taken treatment as in-patient in
Bhavani Paventhan Hospital, Erode, from 09.04.2018 to 25.04.2018 and
underwent surgery. The 1st respondent examined the Ortho Doctor as P.W.2,
ENT Specialist as P.W.3 and they certified that the 1st respondent suffered
22% partial permanent disability and 25% disability for loss of hearing
respectively. The Tribunal considering the evidence of P.W.2 and
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C.M.A.No.417 of 2021
P.W.3/Doctors, Exs.P6, P9 to 12, P15, wound certificate, medical bills,
discharge summary, disability certificate (Ortho), disability certificate (ENT)
and the guidelines issued in the Gazette Notification dated 13.06.2001 issued
by the Government of India, held that the injuries suffered by the 1 st
respondent would decrease his earning power considerably and he may not be
able to work with full efficiency as he was doing before the accident and
fixed the disability of the 1st respondent at 20% by relying on the judgment of
the Hon'blle Apex Court reported in 2017 (1) TNMAC 410 (Sandeep
Khanuja vs. Atul Dande and another), adopted multiplier method and
granted compensation towards disability and loss of earning power. There is
no error in the reason given by the Tribunal for adopting multiplier method.
The amounts awarded by the Tribunal under different heads are not excessive
warranting interference by this Court.
10.In the result, the Civil Miscellaneous Appeal is dismissed and the
sum of Rs.6,90,800/- awarded by the Tribunal as compensation to the 1st
respondent along with interest and costs is confirmed and the 1st respondent is
not entitled to interest for future medical expenses. The appellant/Insurance
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C.M.A.No.417 of 2021
Company is directed to deposit the entire amount awarded by the Tribunal
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. On
such deposit, the 1st respondent is permitted to withdraw the amount awarded
by the Tribunal along with interest and costs, less the amount if any, already
withdrawn. Consequently, connected Miscellaneous Petition is closed. No
costs.
26.02.2021
Index : Yes / No
kj
To
The Special Subordinate Judge
Motor Accidents Claims Tribunal
Erode.
2.The Section Officer
V.R.Section
High Court, Chennai.
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C.M.A.No.417 of 2021
V.M.VELUMANI, J.,
kj
C.M.A.No.417 of 2021
and
C.M.P.No.2683 of 2021
26.02.2021
https://www.mhc.tn.gov.in/judis/
