Madras High Court
The Oriental Insurance Co.Ltd vs Mani @ Manikandan on 28 July, 2021
C.M.A.No.1981 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.07.2021
CORAM:
THE HONOURABLE MRS. JUSTICE S. KANNAMMAL
C.M.A.No.1981 of 2021
and
C.M.P.No.10690 of 2021
The Oriental Insurance Co.Ltd.,
Ponnusamy Gounder Complex,
Tiruchengode Road,
Sangagiri, Salem District. .. Appellant
Versus
1.Mani @ Manikandan
2.Dhinakaran .. Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decree dated 30.09.2020 made
in M.C.O.P.No.108 of 2016 on the file of the Motor Accidents Claims
Tribunal, Subordinate Court, Sankagiri.
For Appellant : Mr. J. Chandran
For R1 : Mr. A. A. Arthanareeswarar
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C.M.A.No.1981 of 2021
JUDGMENT
The matter is heard through “Video Conferencing/Hybrid mode”.
2.This Civil Miscellaneous Appeal has been to set aside the award
dated 30.09.2020 made in M.C.O.P.No.108 of 2016 on the file of the Motor
Accidents Claims Tribunal, Subordinate Court, Sankagiri.
3.The appellant is the second respondent in M.C.O.P.No.108 of 2016
on the file of the Motor Accidents Claims Tribunal, Subordinate Court,
Sankagiri. The 1st respondent filed the said claim petition, claiming a sum of
Rs.15,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 29.05.2015.
4.The brief case of the claimant/first respondent is as follows:
On 29.05.2015, at about 1.30 p.m., the claimant was riding his two
wheeler bearing registration No.TN-24-H-1949 along Tiruchengode-Salem
Road and while nearing Mahendra Engineering College, a car bearing
registration No.TN-09-U-8599 came in a high speed and hit the motorcycle
thereby he sustained grievous injuries and was admitted to Government
Hospital, Salem and then admitted to Krishna Hospital, Tiruchengode for
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C.M.A.No.1981 of 2021
better treatment. According to the claimant, the rash and negligent driving of
the driver of the car was the cause of accident and since the first respondent
insured his car with the second respondent, both of them are liable to pay
compensation to the claimant.
5.The 2nd respondent remained ex-parte before the Tribunal.
6.The appellant/Insurance Company filed counter statement denying
the averments made in the claim petition and contended that the accident
occurred solely due to rash and negligent riding of the two wheeler by the 1st
respondent and the alleged accident is also denied by the 2nd respondent. The
first respondent has to prove the age, income, nature of injuries, medical
expenses incurred due to the injuries sustained in the accident by producing
documentary evidence. In any event, the total amount claimed as
compensation is highly excessive and prayed for dismissal of the claim
petition.
7.Before the Tribunal, on the side of the claimant/first respondent, the
claimant was examined as PW1 and Ex.P1 to Ex.P5 were marked. On the
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C.M.A.No.1981 of 2021
side of the appellant/Insurance Company, one witness was examined as RW1
and Ex.R1 was marked. In addition to that, Ex.C1 and Ex.C2 were marked as
Court documents.
8.The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occurred only due to rash and negligent
driving by the rider of the car owned by second respondent herein and
directed the appellant, being the insurer of the said vehicle, to pay a sum of
Rs.6,80,000/- as compensation to the claimant, at the first instance and
recover the same from the second respondent herein, owner of the car.
9.To set aside the said award dated 30.09.2020 made in
M.C.O.P.No.108 of 2016, the appellant has come out with the present appeal.
10.Questioning the quantum of compensation awarded by the Tribunal
and liability to pay the same, the learned counsel appearing for the
appellant/Insurance Company would submit that the Tribunal has not
considered the evidence available on record both oral and documentary in a
proper perspective and awarded the excessive compensation that too in the
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C.M.A.No.1981 of 2021
case of injury which is liable to be reduced. The learned counsel pointed out
that the Tribunal has erroneously accepted the permanent disability certificate
issued by the Medical Board at 20% vide under Ex.P1, but wrongly applied
multiplier method. It is further contended that the Tribunal has awarded under
the head of future medical expenses and also towards continuous disability,
which in fact covered under the head of future loss of earning capacity and
therefore the compensation under these heads cannot be sustained. The
learned counsel also submitted that the driver of the offending vehicle was
possessing only two wheeler licence and no LMV licence was possessing
which is violation of Motor Vehicle Act and condition of policy, however, the
Tribunal erroneously ordered pay and recovery which is liable to be set aside.
11.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the first respondent and perused the entire
materials available on record.
12.On a perusal of the entire award reveals that the first respondent had
sustained injuries in a road accident as per Ex.P1/disability certificate, it is
clear that the first respondent/injured sustained only 20% permanent
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C.M.A.No.1981 of 2021
disability and even for this, the Tribunal has applied multiplier method and
arrived at a sum of Rs.3,24,000/- towards loss of income. However as rightly
contended by the learned counsel for the appellant, the Tribunal has awarded
compensation at Rs.50,000/- towards future medical expenses and also
Rs.50,000/- towards continuous disability which in the opinion of this Court
cannot be sustained since for sustaining 20% permanent disability, the
Tribunal has appropriately awarded the compensation towards loss of income
by applying multiplier method and when the medical evidence vide Ex.P1 it is
clearly fixed the disability at 20%, there would be no further disability in
future so as to compensate the same. Therefore, this Court is of the view that
there would be no continuous disability and also no future medical expenses
may occur. Therefore, the compensation awarded under the heads future
medical expenses and continuous disability awarded by the Tribunal are
hereby set aside. As regards the liability is concerned, considering the facts
and circumstances, the Tribunal has rightly directed the appellant to pay and
recover the same from the second respondent. This is well settled preposition
of law which cannot be agitated. As regards the compensation awarded by the
Tribunal under the heads, viz., Extra nourishment at Rs.50,000/-,
Transportation at Rs.25,000/- and Rs.10,000/- for Damage to clothes are
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C.M.A.No.1981 of 2021
concerned, this Court is of the view that the Tribunal has granted the same in
excessive while the appellant has sustained only 20% ability and therefore the
same are liable to be reduced as Rs.25,000/-, Rs.10,000/- and Rs.5,000/-
respectively under the heads of Extra nourishment, Transportation and
Damage to clothes respectively. Therefore, in view of the above the
compensation awarded by the Tribunal is modified as tabulated as under.
S.No Description Amount Amount Award confirmed
awarded by awarded by this or enhanced or
Tribunal Court (Rs) granted
(Rs)
1. Loss of income 3,24,000/- 3,24,000/- Confirmed
2. Extra nourishment 50,000/- 25,000/- Reduced
3. Medical expenses 1,20,000/- 1,20,000/- Confirmed
4. Future medical 50,000/- - Set aside
expenses
5. Pain & sufferings 50,000/- 50,000/- Confirmed
6. Transportation 25,000/- 10,000/- Reduced
7 Damage to cloth 10,000/- 5000 Reduced
8 Continuous disability 50,000/- - Set aside
Total Rs.6,79,000/- Rs.5,34,000/- Reduced by
(Rounded off Rs.1,46,000/-
to
Rs.6,80,000/-)
13.In the result, the Civil Miscellaneous Appeal is filed by the
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C.M.A.No.1981 of 2021
appellant/Insurance Company is partly allowed and the compensation
awarded by the Tribunal at Rs.6,80,000/- is hereby reduced to Rs.5,34,000/-
together with interest at the rate of 7.5% per annum from the date of claim
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, at the
first instance and recover the same from the 2nd respondent/owner of the
vehicle. On such deposit, the 1st respondent/claimant is permitted to withdraw
the award amount now determined by this Court along with interest and
costs, after adjusting the amount if any, already withdrawn. The
appellant/Insurance Company is permitted to withdraw the excess amount
lying in the deposit to the credit of M.C.O.P.No.108 of 2016, if the entire
award amount has already been deposited by them. No costs. Consequently,
connected Miscellaneous Petition is closed.
gbi 28.07.2021
Index : Yes / No
Internet : Yes / No
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C.M.A.No.1981 of 2021
To
1.The Subordinate Judge,
Motor Accidents Claims Tribunal,
Sankagiri.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.1981 of 2021
S.KANNAMMAL, J.
gbi
C.M.A.No.1981 of 2021
28.07.2021
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