Madras High Court
Tata Aig General Insurance ... vs N.Mallesh on 25 June, 2021
C.M.A.No. 4038 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.06.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANAMMAL
C.M.A. No. 4038 of 2019
and
C.M.P.No.22812 of 2019
Tata AIG General Insurance Company Limited,
Rep. by its Branch Manager, GSN Arcade,
1st Floor, Beside Vemala Kalyana Mandapam,
Krishnagiri Byepass Road, Hosur Town. .. Appellant
Vs.
1. N.Mallesh
2. Ragavendra .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the award dated 05.02.2019, made in M.C.O.P.
No. 96 of 2016, on the file of the Additional District Court, (Motor Accident
Claims Tribunal), Hosur.
For Appellant : Mr. K. Vinod
For R1 : Mr.K.Prassana
for Mr.Mukund R.Pandiyan
For R2 : No appearance
1/9
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C.M.A.No. 4038 of 2019
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the award dated 05.02.2019, made in
M.C.O.P.No. 96 of 2016, on the file of the Additional District Court, (Motor
Accident Claims Tribunal), Hosur.
2.The 1st respondent is the claimant in M.C.O.P.No. 96 of 2016, on the
file of the Additional District Court, (Motor Accident Claims Tribunal),
Hosur. He filed the said claim petition, claiming a sum of Rs.20,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 08.11.2015.
3.According to the 1st respondent, on the date of accident, he was
standing near Duro Flex Company gate, Kalukondpalli in Thalli-Hosur Road.
While he was standing in the edge of the road, the rider of the motorcycle
bearing Registration No. TN 70 K 9363 belonging to the 2nd respondent
drove the vehicle in a rash and negligent manner and dashed against the 1 st
respondent and caused accident. Due to the accident, the 1st respondent
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C.M.A.No. 4038 of 2019
sustained grievous injuries. Hence, the 1st respondent has filed the claim
petition seeking compensation.
4.The 2nd respondent/owner of the vehicle remained ex parte before
the Tribunal.
5.The appellant/Insurance Company has filed a counter statement and
denied involvement of the alleged Motorcycle in the accident. According to
the appellant, the manner of accident narrated in the FIR and the petition is
false. The 2nd respondent, rider of the motorcycle was not possessing valid
and effective driving license at the time of accident. For the breach and
violation of the terms and conditions of the insurance policy, the
appellant/Insurance Company is not liable to pay any compensation and
prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1,
one Rangasamy was examined as P.W.2 and marked 5 documents as Exs.P1
to P15. The appellant examined one witness as R.W.1 and marked 3
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C.M.A.No. 4038 of 2019
documents as Exs.R1 to R3.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred due to rash and negligent riding
by the the rider of the motorcycle belonging to the 2nd respondent and
directed the appellant/Insurance Company as insurer of the vehicle to pay a
sum of Rs.11,48,227/- as compensation to the 1st respondent at the first
instance and recover the same from the 2nd respondent.
8.Against the said award dated 05.02.2019, made in M.C.O.P.No.96 of
2016, granting compensation to the 1st respondent/claimant, the
appellant/Insurance Company has come out with the present appeal.
9.Heard learned counsel appearing for the appellant as well as the 1st
respondent and perused the materials available on record.
10.The contention of the learned counsel appearing for the appellant is
that the Tribunal erred in applying multiplier method for awarding
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C.M.A.No. 4038 of 2019
compensation towards loss of earning capacity for the nature of injuries
sustained by the 1st respondent and the 1st respondent is not entitled to
compensation by applying multiplier method. The said contention has
considerable force. A perusal of the award of the Tribunal shows that District
Medical Board, Krishnagiri assessed the disability of the 1st respondent at
35% disability and issued Ex.P15/disability certificate to that effect. For the
said reason, the Tribunal applied multiplier method and granted
compensation. The 1st respondent has not proved that he suffered functional
disability or lost his earning capacity. In the absence of any evidence with
regard to functional disability or loss of earning capacity, the reasoning of the
Tribunal for applying multiplier method for granting compensation towards
disability and loss of earning power is erroneous. Considering
Ex.P15/disability certificate, as extracted in the award, the first respondent is
entitled to compensation for 35% of disability only by adopting percentage
method. By awarding Rs.3,500/- per percentage of disability, a sum of
Rs.1,22,500/- (3,500 X 35) is arrived as compensation towards disability.
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C.M.A.No. 4038 of 2019
11. As far as monthly income of the 1st respondent is concerned, the 1st
respondent was aged 29 years, at the time of the accident. He was an
agriculturist and also doing tomato business and also working as a supervisor
under private firm and was earning a sum of Rs.30,000/- per month. To prove
the said contention, the 1st respondent has filed Ex.P8/salary certificate. The
Tribunal rejected the same on the ground that the salary certificate not contain
the deductions and also not marked through the proper labour contractor. In
the absence of any material evidence with regard to avocation and income of
the 1st respondent, the Tribunal fixed a sum of Rs.12,000/- as monthly
income of the 1st respondent. The accident is of the year 2015 and the
monthly income fixed by the Tribunal is meager. Hence a sum of Rs.15,000/-
is fixed as monthly income of the 1st respondent. Considering the nature of
injuries sustained by the 1st respondent, he would not have attended his work
atleast for three months. Therefore, a sum of Rs.45,000/- (Rs.15,000/- x 3) is
awarded towards loss of income for three months. The amounts awarded by
the Tribunal towards attender charges and pain & sufferings are meager and
hence, the same are hereby enhanced to Rs.25,000/- and Rs.50,000/-
respectively. The amounts awarded by the Tribunal under different heads are
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C.M.A.No. 4038 of 2019
just and reasonable and hence the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S.No Description Amount Amount Award
awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of earning 8,56,800 1,22,500 Reduced
capacity
2. Transportation 15,000 15,000 Confirmed
charges
3. Nutrition 25,000 25,000 Confirmed
charges
4. Attender 10,000 25,000 Enhanced
charges
5. Pain and 25,000 50,000 Enhanced
sufferings
6. Discomfort, 30,000 30,000 Confirmed
frustration and
loss of social
enjoyment
7. Medical Bills 1,66,427 1,66,427 Confirmed
8. Future Medical 20,000 20,000 Confirmed
expenses
Total Rs.11,48,227/- Rs.4,98,927/- Reduced to
rounded off to Rs.6,48,227/-
Rs.5,00,000/-
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C.M.A.No. 4038 of 2019
12.In the result, the appeal is partly allowed and the compensation
awarded by the Tribunal at Rs.11,48,227/- is hereby reduced to Rs.5,00,000/-
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 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 order. On such deposit, the claimant/first respondent is
permitted to withdraw the award amount with accrued interest and costs, after
adjusting the amount if any, already withdrawn. The appellant/Insurance
Company is permitted to withdraw the excess amount, if any lying in the
deposit to the credit of M.C.O.P.No.96 of 2016, if the entire award amount
has already been deposited by them. No costs. Consequently, the connected
Miscellaneous Petition is closed.
25.06.2021
Index : Yes / No
Speaking Order : Yes/ No
mtl
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C.M.A.No. 4038 of 2019
S.KANAMMAL, J.,
mtl
To
1.The Additional District Judge,
Motor Accident Claims Tribunal,
Hosur.
2.The Section Officer,
V.R Section,
High Court, Madras.
C.M.A.No. 4038 of 2019
25.06.2021
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