Madras High Court

The National Insurance Company ... vs V. Palanisamy on 17 June, 2021

                                                      CMA No.1503 of 2016

       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                         DATED: 17.06.2021

                             CORAM:

       THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                        CMA No.1503 of 2016
                                and
                        CMP No.11462 of 2016

The National Insurance Company Limited,
1st Floor,
Karthikeya Complex
403, B-10, Mettur Main Road,
Bhavani - 638 302.                      ...    Appellant
                             Versus

1. V. Palanisamy
2. A. Karuppannan                        ...   Respondents


      Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Acts, 1988 against the judgment and decree dated 05.08.2014
in MCOP No.71 of 2013 on the file of the Motor Accident Claims
Tribunal (Subordinate Judge) at Perundurai.


      For Appellant          : Ms.R.Sree Vidhya
      For Respondents        : Mr.K.S. Jeyaganeshan




1/9
                                                          CMA No.1503 of 2016



                               JUDGMENT

(Heard Video Conference)

This appeal has been filed by the Insurance Company challenging

the quantum of compensation awarded by the Tribunal under the

impugned award dated 05.08.2014 passed by the Motor Accident Claims

Tribunal (Sub Judge) at Perundurai in MCOP No.71 of 2013.

2. The appellant / Insurance Company has challenged the

impugned award primarily on the ground that the Tribunal has

erroneously adopted the multiplier method while assessing the

compensation payable to the 1st respondent /claimant. According to

them, the nature of injuries sustained by the 1st respondent / claimant

does not legally entitle him to get compensation based on the multiplier

method.

3. The Tribunal under the impugned award directed the appellant /

Insurance Company to pay the first respondent / claimant a compensation

of Rs.6,50,000/- together with interests and costs as detailed hereunder :





                                                          CMA No.1503 of 2016


                    Heads                 Amount awarded
                                           by the Tribunal
                                                (Rs.)
       Loss of earning capacity                   4,91,400
       Medical expenses                              87,500
       Pain and suffering                            50,000
       Extra Nutrition                               20,000
       Transportation charges                        10,000
       For continuous medical treatment              10,000
       Total                                      6,68,900
       Rounded off by the Tribunal                6,50,000

4. Heard Mr.R.Sreevidhya, learned counsel for the appellant /

Insurance Company and Mr.K.S.Jeyaganeshan, learned counsel for the

1st respondent / claimant. R2 was set ex-parte before the Tribunal,

hence notice to R2 is dispensed with.

5. This Court has perused the materials and evidence available on

record before the Tribunal.

6.The first respondent / claimant sustained the following injuries as

a result of an accident on 12.11.2012 caused by a vehicle owned by the

second respondent and insured with the appellant :

CMA No.1503 of 2016

1) Simple injuries over the head and face

2) Bone fracture in the thigh region, malunion and

3) Grievous injuries all over the body

7. The nature of injuries sustained by the first respondent /

claimant has not been disputed by the appellant / Insurance Company.

However, the only dispute they are rising is that the nature of injuries

does not entitle the first respondent / claimant to get the compensation

for the loss of earning capacity by adopting the multiplier method.

8. The learned counsel for the appellant drew the attention of this

Court to the impugned award and would submit that despite the fact that

the first respondent has not suffered the permanent disability on account

of injuries sustained by him in his face as well as in his shoulder, the

Tribunal has erroneously adopted the multiplier method and has also

fixed the disability of the first respondent / claimant at 70%.

9. Before the Tribunal, the first respondent / claimant has filed 10

documents, which were marked as Exs.P1 to P10 and two witnesses

were examined viz., the first respondent / claimant as PW1 and

CMA No.1503 of 2016

Dr.Periyasamy, who examined him as PW2. On the side of the appellant

/ Insurance Company two documents were filed, which were marked as

Ex.R1 and R2 and one witness was examined on their side viz.,

Rajasekaran, their official as RW1.

10. Admittedly, as seen from the evidence available on record, the

first respondent / claimant was not hospitalised as a result of the injuries

sustained by him caused by the insured vehicle. He has also not

underwent any surgeries as seen from the evidence available on record.

The said fact was also not disputed by the learned counsel for the first

respondent / claimant before this Court. The Doctor (PW2) who

examined the first respondent / claimant has assessed the permanent

disability of the first respondent / claimant at 70% based on the injuries

sustained by him on the various parts of his body. Since, the first

respondent / claimant has not underwent any surgeries and has also not

been hospitalised as a result of the injuries sustained by him, this Court is

of the considered view that the Tribunal has erroneously adopted the

multiplier method for the purpose of assessing the loss of earning

capacity of the first respondent /claimant as he has not suffered any

permanent disability. This Court is of the considered view that the

CMA No.1503 of 2016

Tribunal ought to have fixed the loss of earning capacity of the first

respondent / claimant on percentage basis, but instead as adopted the

multiplier method, which is not correct.

11. The accident happened on 12.11.2012. This Court is of the

considered view that it will be a just compensation, if the loss of earning

capacity of the first respondent/claimant is calculated at Rs.3,000/- per

percentage of disability. This Court therefore, accepts the disability fixed

by the Doctor before the Tribunal at 70% but it can only be treated as a

partial and permanent disability and not as permanent disability fixed by

the Tribunal. Therefore, the loss of earning capacity fixed by the

Tribunal under the impugned award to the first respondent / claimant is

reduced to Rs.2,10,000/-, calculated for 70% disability at Rs.3,000/- per

percentage of disability, instead of Rs.4,91,400/- fixed by the Tribunal.

12. This Court is of the considered view that there is no ground for

interference with regard to the compensation awarded by the Tribunal

under various other heads viz., Rs.87,500/- towards medical bills;

Rs.50,000/- towards pain and suffering; Rs.20,000/- towards

Transportation charges; Rs.10,000/- towards continuous medical

CMA No.1503 of 2016

treatment, if the nature of the injuries and the avocation of the first

respondent / claimant is taken into consideration.

13. For the foregoing reasons, the award of the Tribunal is hereby

reduced in the following manner :

                  Heads              Amount awarded Amount awarded
                                      by the Tribunal by this Court
                                           (Rs.)          (Rs.)
      Loss of earning capacity                  4,91,400          2,10,000/-
      *Rs.4,500 x 12 x 13 x 70%                                           #
      #Rs.3,000 x 70% x 100                           *
      Medical expenses                            87,500               87,500
      Pain and suffering                          50,000               50,000
      Extra Nutrition                             20,000               20,000
      Transportation charges                     10,000              10,000
      For Continuous medical                                         10,000
      treatment                                  10,000
      Total                                    6,68,900            3,87,500
      Rounded off by the Tribunal              6,50,000                     -

14. In the result, the appeal filed by the appellant / claimant,

stands partly allowed by reducing the compensation from Rs.6,50,000/-

to Rs.3,87,500/-, as indicated above. No costs. Consequently, connected

miscellaneous petition is closed.

CMA No.1503 of 2016

15. The appellant / Insurance Company is directed to deposit the

entire award amount (reduced amount) as assessed by this Court together

with interest at 7.5% p.a. from the date of claim petition till the date of

realization, less the amount, if any, already deposited to the credit of

MCOP No.71 of 2013 on the file of the Motor Accident Claims Tribunal

(Subordinate Judge) at Perundurai, within a period of eight weeks from

the date of receipt of a copy of this Judgment. On such deposit being