Madras High Court
United India Insurance Company ... vs V.Subbulakshmi on 21 June, 2021
C.M.A.No.1578 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2021
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A.No.1578 of 2021
and
C.M.P.No.8219 of 2021
United India Insurance Company Limited,
Branch Office, 178, Dr.Nanjappa Road,
Opp: Chidambaram Park,
Coimbatore – 641 018. .. Appellant
Vs.
1.V.Subbulakshmi
2.H.Prakash
3.M/s.Eagle Feet Services,
B-1, Patteeswara Enclave,
Viswesaraya 2nd Street, Church Road,
Saibaba Colony, Coimbatore. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
06.12.2018 made in M.C.O.P.No.286 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Erode.
For Appellant : Ms.I.Malar
For R1 : Mr.R.Nalliyappan
1/10
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C.M.A.No.1578 of 2021
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”.)
This Civil Miscellaneous Appeal has been filed to set aside the award
dated 06.12.2018 made in M.C.O.P.No.286 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Erode.
2.The appellant is the 3rd respondent in M.C.O.P.No.286 of 2017 on the
file of the Motor Accidents Claims Tribunal, Special Sub Court, Erode. The
1st respondent filed the said claim petition, claiming a sum of Rs.6,00,000/- as
compensation for the injuries sustained by her in the accident that took place
on 07.11.2016.
3.According to 1st respondent, on 07.11.2016 at about 07.00 P.M.,
while she was walking from West to East direction on the extreme left side of
the Coimbatore to Varatharajalu Nagar road near Door No.20/24, the driver
of the car bearing Registration No.TN 38 CB 5922, who came from the
opposite direction, passed over the 1st respondent and suddenly came in a
reverse direction in a rash and negligent manner without adhering the traffic
rules and regulations by not blowing horn, dashed against the 1st respondent
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C.M.A.No.1578 of 2021
and caused the accident. In the accident, the 1st respondent fell down on the
road and sustained bone fracture and grievous injuries all over the body.
Immediately after the accident, the 1st respondent was taken to Ganga
Medical Centre & Hospital, Coimbatore, where she has taken treatment as
inpatient from 07.11.2016 to 15.11.2016. Therefore, the 1st respondent filed
the said claim petition claiming a sum of Rs.6,00,000/- as compensation for
the injuries sustained by her against the respondents 2, 3 and appellant-
Insurance Company, being the driver, owner and insurer of the car
respectively.
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 car belonging to 3rd respondent and directed the appellant-
Insurance Company to pay a sum of Rs.4,02,300/- as compensation to the 1 st
respondent.
5.Questioning the quantum of compensation awarded by the Tribunal
in the award dated 06.12.2018 made in M.C.O.P.No.286 of 2017, the
appellant has come out with the present appeal.
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C.M.A.No.1578 of 2021
6.The learned counsel appearing for the appellant contended that the
Medical Board assessed the percentage of disability of the 1 st respondent at
40% temporary disability and the Medical Board has not stated that the 1 st
respondent has suffered any functional disability or lost her earning capacity.
In the absence of any evidence with regard to functional disability or loss of
earning capacity, the Tribunal erroneously awarded compensation for loss of
earning capacity by adopting multiplier method. The 1st respondent is not
entitled to compensation for loss of earning capacity by adopting multiplier
method. The 1st respondent has not proved her avocation and income by
producing valid documents. In the absence of any material evidence with
regard to avocation and income, the Tribunal fixed excessive sum of
Rs.12,800/- per month as notional income of the 1st respondent and awarded
compensation for loss of income. The 1st respondent has not produced any
medical records to show that she requires future medical treatment. In the
absence of any medical records, a sum of Rs.20,000/- awarded by the
Tribunal for future medical expenses is without merits. The amounts awarded
by the Tribunal under other heads are highly excessive and prayed for setting
aside the award passed by the Tribunal.
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C.M.A.No.1578 of 2021
7.Per contra, the learned counsel appearing for the 1st respondent
contended that in the accident, the 1st respondent sustained right knee
swelling and tenderness, right knee AP / Lateral – Fracture lateral condyle
(Haffa's Fracture), fixation of open reduction and cancelled screw and herbert
screw right distal femur, right lower limb painted and draped, lateral para
patellar done, fracture revealed, reduced with K wire and held with reduction
clamp and fixed with two lateral to medial 6, cancellous screw and two
4.5mm cancellous screw fixed in postero superior to antero inferior and
multiple injuries all over the body. The District Medical Board, Erode
examined the 1st respondent and certified that she suffered 40% disability and
issued Ex.C1/disability certificate to that effect. The Tribunal reduced the
percentage of disability suffered by the 1st respondent and fixed the functional
disability of the 1st respondent at 15% and awarded compensation only for
15% loss of earning capacity, which is not correct. At the time of accident,
the 1st respondent was working as Tailor and was earning a sum of
Rs.15,000/- per month. A sum of Rs.12,800/- per month fixed by the Tribunal
as notional income of the 1st respondent is meagre. Due to the injuries and
disability, the 1st respondent cannot continue her avocation. The Tribunal
considering the nature of injuries and awarded compensation under different
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C.M.A.No.1578 of 2021
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 in the accident the 1st
respondent sustained right knee swelling and tenderness, right knee AP /
Lateral – Fracture lateral condyle (Haffa's Fracture), fixation of open
reduction and cancelled screw and herbert screw right distal femur, right
lower limb painted and draped, lateral para patellar done, fracture revealed,
reduced with K wire and held with reduction clamp and fixed with two lateral
to medial 6, cancellous screw and two 4.5mm cancellous screw fixed in
postero superior to antero inferior and multiple injuries all over the body. The
District Medical Board, Erode examined the 1st respondent and certified that
the 1st respondent suffered 40% temporary disability and issued
Ex.C1/disability certificate to that effect. The Tribunal fixed the functional
disability of the 1st respondent at 15% by following the judgment of this
Court reported in 2009 (2) TNMAC 336, [National Insurance Company
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C.M.A.No.1578 of 2021
Limited Vs. A.P.Prasanna Venkatesh and another], judgment of the Hon'ble
Apex Court reported in 2011 (1) SCC 343, [Raj Kumar Vs. Ajay Kumar],
considering the Gazette Notification issued by the Ministry of Social Justice
and Empowerment, Government of India dated 13.06.2001 and the
notification of the Department of Empowerment of persons with disabilities
dated 04.01.2018. The 1st respondent has not proved that she suffered
functional disability or her income was reduced or she has lost her earning
capacity. Further, the Medical Board examined the 1st respondent and
certified that she suffered 40% temporary disability. In view of the same, the
Tribunal without any pleadings, oral and documentary evidence, erroneously
held that 1st respondent suffered 15% 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.C1/disability certificate. The accident is of the year 2016
and the 1st respondent is entitled to a sum of Rs.4,000/- per percentage of
disability. Thus, the 1st respondent is entitled to a sum of Rs.1,60,000/-
(Rs.4,000/- X 40% disability) towards disability. The Tribunal has awarded a
sum of Rs.20,000/- towards future medical expenses for removal of implants
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C.M.A.No.1578 of 2021
and the same is reasonable. Considering the nature of injuries, percentage of
disability, period of treatment taken by the 1st respondent and nature of work
done by the 1st respondent, this Court is of the considered view that the
amounts awarded by the Tribunal under other heads are just and reasonable
and hence, the same are hereby confirmed. 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. Disability and loss of 2,28,100/- 1,60,000/- Reduced
earning power
2. Pain and sufferings 40,000/- 40,000/- Confirmed
3. Extra nourishment 3,000/- 3,000/- Confirmed
4. Transportation 3,000/- 3,000/- Confirmed
5. Damages to clothes 500/- 500/- Confirmed
6. Medical expenses 1,14,900/- 1,14,900/- Confirmed
7. Loss of income 12,800/- 12,800/- Confirmed
Total Rs.4,02,300/- Rs.3,34,200/- Reduced by
Rs.68,100/-
10.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.4,02,300/- is hereby reduced
to Rs.3,34,200/- 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
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C.M.A.No.1578 of 2021
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.286 of 2017 on the file of the Motor Accidents
Claims Tribunal, Special Sub Court, Erode. On such deposit, the 1st
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.286 of 2017, if the award amount has
already been deposited by them. Consequently the connected Miscellaneous
Petition is closed. No costs.
21.06.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Special Subordinate Judge,
Motor Accidents Claims Tribunal,
Erode.
2.The Section Officer,
VR Section,
High Court, Madras.
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C.M.A.No.1578 of 2021
S.KANNAMMAL, J.
krk
C.M.A.No.1578 of 2021
21.06.2021
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