Madras High Court
Bharti Axa General Insurance Co. vs P.Kaliappan on 28 June, 2021
C.M.A.(MD).No.842 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
C.M.A.(MD).No.842 of 2014
and
M.P(MD)No.1 of 2014
Bharti Axa General Insurance Co., Ltd.,
Rep. by its Branch Manager,
P.P. Chavadi,
Theni Main Road,
Madurai. ... Appellant
Vs.
1.P.Kaliappan
2.M/s R.A.G.Security Team,
4-370, Panchayat Office Street,
Avarikulam,
Radhapuram,
Tirunelveli District.
... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to set aside the Decree and Judgment of Motor Accident
Claims Tribunal-Special Court of Tirunelveli dated 04.01.2014 in MCOP No.
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.842 of 2014
206/2013.
For Appellant : Mr.G.Maruthaiah
For Respondents : Mr.T.A.Ebenezer for R1
No appearance for R2
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
This appeal is directed against the award passed by the Motor Accident
Claims Tribunal, Special Court, Tirunelveli, in MCOP No.206 of 2013.
2.The appellant was the second respondent in the claim petition. The first
respondent herein sought compensation of Rs.25,00,000/- for the injuries
sustained in the accident on 18.02.2012. It is his case that at 06.00 p.m on
18.02.2012, he was proceeding in a Hero Honda motorcycle bearing
Reg.No.TN-76-X-0445 on Srivasanagar four-lane road from south to north
direction. At that time, a Xylo Car bearing Reg.No.72-AP-6666 was driven by its
driver in a rash and negligent manner and hit against the motorcycle. In the
accident, he sustained multiple injuries and fracture and he was immediately
taken to Tirunelveli Medical College Hospital. Thereafter, he took treatment at
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C.M.A.(MD).No.842 of 2014
Susrutha Hospital, Nagercoil as inpatient. The claimant further stated that he was
30 years old on the date of accident and he was working as Territory Market
Manager in Pharma Solution Private Limited and he was paid Rs.40,000/- per
month. Contending that the accident occurred due to the negligence of the driver
of the car, he claimed compensation from the owner as well as insurer.
3.The claim petition was resisted by the respondents, the owner as well as
insurer by filing separate counters. They disputed the age, avocation and income
of the claimant. It is specifically stated that the claimant was driving the
motorcycle in the middle of the road and hence, the driver of the car stopped the
vehicle, even then, the claimant dashed against the car and invited the accident,
hence, no compensation can be paid to him.
4.Before the Tribunal in support of the case of the claimant, two witnesses
were examined and 13 documents were marked. On behalf of the respondents,
RW.1 and RW.2 were examined and 4 documents were marked. On appreciation
of evidence adduced by the parties, the Tribunal came to the conclusion that the
driver of the car was responsible for the accident and awarded compensation of
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C.M.A.(MD).No.842 of 2014
Rs.22,20,700/- with 9% interest. Challenging the same, the present appeal has
been filed.
5.Mr.G.Maruthaiah, learned counsel for the appellant urged that the
Tribunal has committed error in applying multiplier method to arrive at loss of
income at Rs.19,87,200/-. It is his submission that in the case of injuries, the
Tribunal before applying multiplier has to come to the conclusion the claimant
has suffered permanent or temporary disablement and to ascertain whether there
is any functional disability. According to the learned counsel, the disability
certificate issued by P.W.2 does not show any permanent disability except stating
shortage of limb of 4 c.m. So, it is not a fit case to apply multiplier method. He
further added that the award amount is excessive and without any basis and
interest is also on higher side.
6.Per contra, Mr.T.A.Ebenezer, learned counsel for the claimant argued in
support of the finding of the Tribunal and justified applying multiplier in the
present case.
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C.M.A.(MD).No.842 of 2014
7.This Court has carefully considered the rival submission and perused the
materials available on record.
8.This is a case of injury. The claimant has stated in the claim petition as
well as in the evidence that he was 30 years old when the accident had taken
place. In his evidence, he has categorically stated that the driver of the car came
in a high speed and rammed the motorcycle, in which, he was riding. Even
though the appellant and the owner of the vehicle have taken a specific stand that
the injured claimant came in a high speed in the middle of the road and dashed
against the car, the driver of the car was admittedly not examined. Further, no
steps have been taken to mark the sketch and observation mahazer to establish
that the accident occurred in the middle of the road. It is relevant to note that the
claimant despite narrating the manner of accident in his evidence, also produced
Ex.P.1 copy of the First Information Report to show that the criminal case was
registered against the driver of the car. Since no contra evidence was produced
by the respondents in the claim petition, the Tribunal came to the conclusion that
the driver of the car has caused the accident. We find no ground to interfere with
the finding on the negligence.
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C.M.A.(MD).No.842 of 2014
9.It appears that during trial, Ex.P.10 was produced to claim Rs.3,60,219/-
towards medical expenses. The stand of the appellant before the Tribunal was
that the entire medical expenses were reimbursed under Group Insurance Scheme.
To prove the stand of the appellant/respondent, R.W.1 and R.W.2 were examined
and Exs.R1 to R4 were marked. Taking note of the evidence adduced by the
respondents, the Tribunal rejected the case of the claimant that he spent Rs.
3,60,000/- towards medical expenses. However, the evidence of R.W.1 shows
that the claimant was an employee of Pharma Solution Private Limited. So, the
case of the claimant that he was an employee in the Pharma Solution Private
Limited has been proved. Ex.P.8 Salary Certificate shows that his monthly pay
was Rs.17,250/-. P.W.2 Doctor has stated that in the accident, the claimant
suffered fracture on the left leg and a plate was fixed during surgery and there is a
shortage of 4 c.m in the left leg. He issued Disability Certificate (Ex.P.12) that
the claimant has suffered 65% permanent disability. Ex.P.13 X-ray was produced
in support of the evidence of P.W.2 and Ex.P.12. Ex.P.7 reveals that after the
accident, he was not able to continue his employment and resigned his job. After
considering the evidence and following the decision of the Hon'ble Apex Court in
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C.M.A.(MD).No.842 of 2014
the case of Subbulaxmi vs. M.D.T.Nadu State Transp. Corp and another, the
Tribunal applied multiplier method to arrive at loss of income.
10.It is evident from the testimony of P.W.1 and P.W.2 and Ex.P.12 the
claimant has suffered permanent disability. So, the contention of the learned
counsel for the appellant that there is no finding with regard to the permanent
disability cannot be countenanced. That apart, considering the nature of
employment and the disability suffered by the claimant, in our view that the
Tribunal has rightly applied the multiplier in this case.
11.Insofar as quantum is concerned, on the basis of Salary Certificate and
evidence of Doctor, the Tribunal has taken the disability at 60%, to award Rs.
19,87,200/- by applying multiplier '16' (17,250 x 12 x 16 x 60/100). The claim
for medical expenses was rightly rejected by the Tribunal, however, a sum of Rs.
1,03,500/- was awarded for loss of income during the treatment period. The
Tribunal has fixed the age as appeared in the Accident Register (Ex.P.2), since the
claimant has not produced any materials to prove his age. The amount for the
treatment period viz., for a period of 6 months separately, in our view, cannot be
accepted. In addition to the loss of income, the Tribunal has awarded Rs.10,000/-
towards transportation charges; Rs.5000/- for extra nourishment; Rs.5000/- for
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C.M.A.(MD).No.842 of 2014
attendant charges; Rs.50,000/- towards pain and suffering and Rs.50,000/-
towards loss of amenities. We see no ground to reduce the amount awarded under
other heads, hence, they are confirmed. Since the accident occurred in the year
2012 and the award came to be passed in the year 2014, interest is reduced from
9% to 7.5%.
12.In fine, the Civil Miscellaneous Appeal is partly allowed. The claimant
is entitled for Rs.21,17,200/-, which rounded off to Rs.21,15,000/- along with
interest at the rate of 7.5% per annum from the date of claim petition till the date
of realization. The appellant Insurance Company is directed to deposit the award
amount with accrued interest and costs, less the amount already deposited, if any,
within a period of eight weeks from the date of receipt of a copy of this order. On
such deposit, the claimant is permitted to withdraw the award amount, less the
amount already withdrawn, if any, together with proportionate interest and costs.
No costs. Consequently, connected Miscellaneous Petitions are closed.
[M.K.K.S.,J.] [B.P.,J.]
28.06.2021
skn
Intex : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.842 of 2014
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To
1.The Motor Accident Claims Tribunal
-Special Court of Tirunelveli
2.V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).No.842 of 2014
K.KALYANASUNDARAM, J.
and
B.PUGALENDHI, J.
skn
C.M.A.(MD).No.842 of 2014
and
M.P(MD)No.1 of 2014
28.06.2021
https://www.mhc.tn.gov.in/judis/
