Madras High Court
Oriental Insurance Company Ltd vs Sekar on 26 February, 2021
C.M.A.No.1641 of 2017
and C.M.P.No.8683 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.02.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.1641 of 2017
and
C.M.P.No.8683 of 2017
Oriental Insurance Company Ltd.,
represented by its Manager,
G.K.Complex, 1st Floor,
Dharmapuri Main Road, Pochampalli,
Krishnagiri District. ...Appellant
Vs
1.Sekar
2.R.Chakkaravarthy ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act against the Judgment and Decree dated 08.02.2017 made in M.C.O.P.No.110
of 2016 on the file of Motor Accident Claims Tribunal, (Special District Court for
Motor Accident Claims Cases), Krishnagiri.
For Appellant : Mrs.Elveera Ravindran
For Respondents : Mr.T.Arockia Doss for
Doss and Viswa Associates
1/8
http://www.judis.nic.in
C.M.A.No.1641 of 2017
and C.M.P.No.8683 of 2017
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel
for the respondents.
2. This Civil Miscellaneous Appeal is filed by the Insurance Company
being aggrieved by the quantum of compensation awarded by the Tribunal to the
claimant.
3. The short facts of the case is that on 14.12.2015 at about 4.20 p.m.,
when the claimant Sekar was standing along with his Bajaj Pulsar bike bearing
registration No.TN 24 AA 9263 on the extreme of the road side near Ramamoorthy
maligai shop at Mettukollai, a car bearing registration No.TN 39 AE 1917 owned
by the 1st respondent and insured under the 2nd respondent coming on the opposite
direction rash and negligently dashed against the claimant and his bike. Due to the
impact, the claimant sustained multiple injuries. He was taken to the Government
hospital, Krishnagiri for treatment and admitted initially as in-patient on
15.12.2015 to 21.12.2015 and thereafter got admitted at Ganga Medical Centre
and Hospital (P) Ltd., Coimbatore. For the injury and for the loss of income, claim
petition for a sum of Rs.20,00,000/- was filed against the owner of the car and its
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C.M.A.No.1641 of 2017
and C.M.P.No.8683 of 2017
insurer.
4. The Insurance Company filed a detailed counter refuting the allegations
and averments made in the claim petition. According to the claim petition the
accident occurred when the claimant riding his motorcycle and tried to cross the
road without observing the road rules. There was no rash or negligence on the part
of the car driver. Further, it is contended that the claimant had no valid driving
licence and therefore, for violation of Motor Vehicles Act, he has to be dis-entitled
for claiming compensation and the quantum of compensation claimed was also
questioned as excessive and exorbitant.
5. Before the Tribunal, the claimant examined as PW.1 and marked 7
exhibits. On the side of the respondent, one Gururagavendhiran was examined as
RW.1 and 2 exhibits marked.
6. The Tribunal relying upon the First Information Report and the other
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C.M.A.No.1641 of 2017
and C.M.P.No.8683 of 2017
evidence held the driver of the car bearing registration No.TN 39 AE 1917 was
responsible for the accident. Being the insurer of the offending vehicle, 2 nd
respondent was held liable to indemnify the insurer and pay the 3 rd party claim.
The Medical Board, which has examined the injury of the claimant, had assessed
the disability at 40% partial permanent. The Tribunal taking note of the disability
certificate given by the Medical Board which was marked as Ex.P7 had applied
multiplier method to compute the loss of earning and awarded a total sum of
Rs.5,35,690/- towards the compensation.
7. In the appeal, the learned counsel for the appellant primarily assailed the
award on the ground that when there is no evidence to show that the claimant was
employed in TNSTC as a conductor and the disability found by the Medical Board
will impair his earning capacity and cause functional disability, the Tribunal ought
not to have applied multiplier method referring the judgment of the Hon'ble
Supreme Court in Raj Kumar Vs. Ajay Kumar and another reported in [(2011) 1
SCC 343]. The learned counsel for the appellant would further submit that in the
absence of evidence that the injury has caused disability to earn, the application of
multiplier is erroneous.
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C.M.A.No.1641 of 2017
and C.M.P.No.8683 of 2017
8. Per contra, the learned counsel for the respondent would submit that the
nature of injury has found in the disability certificate given by the Medical Board
would clearly show that the injured victim is unable to walk, stand, sit, squat and
ride any vehicle, climb steps and not able to do any work as before. The Medical
Board has recorded the pain in the right thigh and difficulty in standing for a long
time. As a conductor the said disability had caused substantial functional
impairment.
9. On hearing the rival submissions made by the learned counsels and on
perusing the records, this Court is of the view the fracture of closed shaft right
neck of right femur, though not a schedule injury or total permanent injury, there
would be substantially difficult in discharging the day to day functioning therefore,
considering the site of fracture it is assessed 20% functional disability.
Accordingly, the award passed by the Tribunal is scaled down as below:
Permanent disability (Rs.9,000X12X15X20%) Rs.3,24,000/-
Pain and Sufferings Rs.10,000/-
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C.M.A.No.1641 of 2017
and C.M.P.No.8683 of 2017
Permanent disability (Rs.9,000X12X15X20%) Rs.3,24,000/-
Mental agony and shock Rs.5,000/-
Transport to hospital Rs.5,000/-
Extra nourishment Rs.9,000/-
Attender charges Rs.5,000/-
Medical Expenses Rs.40,887/-
Total Rs.3,98,887/-
Rounded off Rs.4,00,000/-
10. The learned counsel for the appellant would submit that as per the
conditional order passed by this Court at the time of admission of the appeal, he
has already deposited a sum of Rs.4,00,000/- in the MCOP account. In such case
the accrued interest shall be deposited within a period of twelve weeks from today.
The claimant herein is permitted to withdraw the award amount on appropriate
petition.
11. In the result, this Civil Miscellaneous Appeal is disposed of.
Consequently, connected civil miscellaneous petition is also closed. No costs.
26.02.2021
Index : Yes/No
Internet : Yes/No
rpl
To
http://www.judis.nic.in
C.M.A.No.1641 of 2017
and C.M.P.No.8683 of 2017
The Motor Accident Claims Tribunal,
(Special District Court for Motor Accident Claims Cases),
Krishnagiri.
http://www.judis.nic.in
C.M.A.No.1641 of 2017
and C.M.P.No.8683 of 2017
DR.G.JAYACHANDRAN,J.
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C.M.A.No.1641 of 2017
and C.M.P.No.8683of 2017
26.02.2021
http://www.judis.nic.in
