Madras High Court
The Manager vs T.Rajamoni on 30 June, 2021
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
and
M.P(MD)No.1 of 2014
C.M.A.(MD).No.979 of 2014
The Manager,
Oriental Insurance Company Limited,
Nagercoil Branch,
Nagercoil Village,
Agasteeswaram Taluk,
Kanyakumari District. ... Appellant
Vs.
1.T.Rajamoni
2.Paulraj
3.P.Vijila
... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to set aside the Judgment and Decree in MCOP No.34 of 2013
on the file of the Motor Accident Claims Tribunal, (Special Court for Forest
Offence Cases), Nagercoil, dated 19.05.2014.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
For Appellant : Mr.Jawahar Ravindran for
Mr.C.Ramachandran
For Respondents : Mr.C.Sankar Prakash for R1
No appearance for R2 and R3
C.M.A.(MD).No.305 of 2015
T.Rajamoni ... Appellant
Vs.
1.Paulraj
2.Vijila P.
3.The Manager,
Oriental Insurance Co., Ltd.,
Nagercoil Branch,
Agasteeswaram Taluk,
Kanyakumari District.
... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to enhance the award amount in MCOP No.34 of 2013 on the
file of the Motor Accident Claims Tribunal, (Special Court for Forest Offence
Cases), Nagercoil, dated 19.05.2014.
For Appellant : Mr.C.Sankar Prakash
For Respondents : Mr.Jawahar Ravindran for
Mr.C.Ramachandran for R3
No appearance for R1 and R2
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
COMMON JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
Aggrieved over the award passed by the Motor Accident Claims Tribunal,
(Special Court for Forest Offence Case), Nagercoil, the Insurance Company
preferred the appeal in CMA(MD)No.979 of 2014. Dissatisfied with the award,
the claimant has come up with the appeal in CMA(MD)No.305 of 2015 seeking
enhancement of compensation. Since both the appeals arise out of the award
passed by the Motor Accident Claims Tribunal, they are disposed of by this
Common Judgment.
2.This is case of injury. The injured met with an accident on 10.10.2011
while he was walking on a road along with his wife. It is his case that the driver
of the auto bearing Reg.No.TN 74 E 2622 came in a high speed and negligent
manner and hit behind the claimant. In the accident, he sustained grievous
injuries and he was immediately taken to the Keasava Hospital and thereafter, he
took treatment at KIMS Hospital as inpatient. During treatment, a surgery was
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
conducted. The injured claimant would state that he was working as Mason and
earned Rs.700/- per day. So, he is entitled for compensation of Rs.25,00,000/-
3.The Insurance Company contested the claim petition stating that the
injured claimant attempted to cross the road in a careless manner and invited the
accident. Since the claimant himself is responsible for the accident, the petition
has to be dismissed. The age and avocation of the claimant was disputed.
4.During trial, the claimant examined himself as P.W.1. The Doctor and the
employer of the claimant were examined as P.W.2 and P.W.3. P.W.1 gave
evidence in support of the averment made in the claim petition. Ex.P.1, First
Information Report was marked to show that the criminal case was registered
against the driver of the auto. Rough Sketch, Observation Mahazer and Motor
Vehicle Inspector's Report were marked as Exs.P.2 to P.5. Ex.P.6 reveals that the
driver of the auto pleaded guilty and paid fine amount. Though the Insurance
Company contested the claim petition that the claimant met with the accident
while he was crossing the road, Ex.P.2 Rough Sketch reveals that the accident had
taken place on the extreme left side of the road. To substantiate the case of the
Insurance Company, no material was produced.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
5.The Tribunal, upon consideration of the materials available on records,
came to the conclusion that the accident occurred due to the negligence of the
driver of the auto. We find no illegality in the conclusion reached by the
Tribunal.
6.With regard to the quantum, P.W.2 Doctor has stated that the injured had
sustained 70% permanent disability. Ex.P.5 Accident Register shows that he
sustained injury in right temprol region of the head and a fracture in a clavicle
bone. Ex.P.7 is the disability certificate. Ex.P.19 discharge summary shows that
the claimant originally had taken treatment as Keasava Hospital, Thuckalay from
10.10.2011 to 12.10.2011 and thereafter, he was admitted in KIMS Hospital on
13.10.2011 and discharged on 24.10.2011. P.W.3, the employer of the claimant
would state that the claimant was earning Rs.700/- per day. He has also produced
the Salary Certificate (Ex.P.16). The Tribunal while concluding that the claimant
is an employer of P.W.3, but fixed his salary as Rs.450/- per day. Based on the
evidence of P.W.2 and the Disability Certificate, the Tribunal has applied
multiplier to ascertain the loss of income.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
7.Mr.Jawahar Ravindran, learned counsel for the appellant Insurance
Company would urge that in the case on hand, admittedly, the claimant sustained
only two injuries and he recovered from the injuries after taking treatment as
inpatient for 15 days. When there is no evidence to show that he has suffered
functional disability, the multiplier method adopted by the Tribunal to ascertain
the loss of income cannot be sustained. It is his submission that the disability
assessed by P.W.2 Doctor is on higher side and even then, the compensation can
be awarded based on the disability certificate, but the appellant is opposing to
apply the multiplier method to fix the loss of income.
8.When the appeals were listed for hearing on the earlier occasions, the
counsel appearing for the first respondent took adjournment to get instructions
from his client. On 22.06.2021 the appeals stands adjourned to 30.06.2021
finally considering the fact that these appeals are pending for more than 6 years.
When the matter is taken up for hearing, Mr.C.Sankar Prakash argued in support
of the finding of the Tribunal and when this Court was not inclined to apply the
theory of multiplier, the learned counsel submitted that he has already filed a
memo dated 28.06.2021 stating that he has no instructions from his party. The
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
counsel who was considerable bar experience, is not expected to make such a
statement.
9.In the instant case, the only issue that arises for consideration is whether
the multiplier applied by the Tribunal is sustainable.
10.From the perusal of the records it is seen that even though the Doctor
(P.W.2) has deposed that the claimant has lost his memory and has defective
speech, but when he was cross examined by the learned counsel for the Insurance
Company, he has given cogent answer to the questions. Further, it is not the case
of the claimant that after the accident, he lost his employment and has become
unfit to continue his avocation. The case of the claimant that he suffered with
defective hearing, defective memories and sensitive loss and frequent memory
loss is not substantiated through medical evidence. Therefore, we are of the
considered view that this is not a fit case to apply multiplier to arrive at loss of
income. It would be appropriate to award of Rs.3,000/- per percentage and the
loss of income would be Rs.2,10,000/- since the claimant suffered 70% disability.
The Tribunal has awarded Rs.25,000/- for pain and suffering and it has been
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
enhanced to Rs.50,000/-. The amount awarded under other heads are unaltered.
Accordingly, the award amount is reduced to Rs.6,69,017/- from Rs.21,35,017/-.
11. It is represented by the learned counsel for the appellant/Insurance
Company that as per the order of this Court, the appellant/Insurance Company
deposited the 50% of award amount. In view of the above modification in the
award amount, the claimant is permitted to withdraw the modified amount and the
excess amount shall be refunded to the appellant/Insurance Company.
12. For the foregoing reasons, the CMA(MD)No.979 of 2014 is partly
allowed and CMA(MD)No.305 of 2015 is dismissed. The Judgment and Award,
dated 19.05.2014 passed in M.C.O.P.No.34 of 2013, by the Motor Accident
Claims Tribunal (Special Court for Forest Offence Cases), Nagercoil, are
modified to the extent as indicated above. No costs. Consequently, connected
miscellaneous petition is closed.
[M.K.K.S.,J.] [B.P.,J.]
30.06.2021
skn
Intex : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
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 for Forest offence cases,
Nagercoil.
2.V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
K.KALYANASUNDARAM, J.
and
B.PUGALENDHI, J.
skn
COMMON JUDGMENT MADE IN
C.M.A.(MD).Nos.979 of 2014 and 305 of 2015
and
M.P(MD)No.1 of 2014
30.06.2021
https://www.mhc.tn.gov.in/judis/
