The National Insurance Company ... vs Shankar
2021 Latest Caselaw 5278 Mad

                                                                           C.M.A.No.502 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 01.03.2021

                                                         CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                C.M.A. No.502 of 2021
                                              and C.M.P.No.3207 of 2021

                   The National Insurance Company Ltd.,
                   Motor III Party Cell,
                   No.751, Anna Salai,
                   Chennai 600 001.                                                .. Appellant

                                                           Vs.

                   1.Shankar
                   2.K.Manickam                                                 .. Respondents
                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                   Vehicles Act, 1988, against the judgment and decree dated 23.09.2019, made

                   in M.C.O.P. No.3878 of 2014, on the file of the V Court of Small Causes,

                   (Motor Accident Claims Tribunal), Chennai.

                                         For Appellant     : Mr.M.Krishnamoorthy

                                         For Respondents : Mr.C.Richard Suresh Kumar (For R1)
                                                           for M/s.K.Sivakumar


                   ___
                   1/8




https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.502 of 2021


                                                  JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant-

Insurance Company challenging the quantum of compensation granted by the

Tribunal in the award dated 23.09.2019, made in M.C.O.P. No.3878 of 2014,

on the file of the V Court of Small Causes, (Motor Accident Claims Tribunal),

Chennai.

2.By consent of the learned counsel appearing for the appellant as well

as the 1st respondent, the appeal is taken up for final disposal at the admission

stage itself.

3.The appellant is the 2nd respondent in M.C.O.P. No.3878 of 2014, on

the file of the V Court of Small Causes, (Motor Accident Claims Tribunal),

Chennai. The 1st respondent/claimant filed the said claim petition, claiming a

sum of Rs.25,00,000/- as compensation for the injuries sustained by him in

the accident that took place on 12.07.2013.

___

https://www.mhc.tn.gov.in/judis/ C.M.A.No.502 of 2021

4.According to the 1st respondent, on the date of accident, when he was

standing on the left side of G.S.T. Road, Thailavaram Bus Stop, from

Chengalpattu to go to Chennai, the driver of a Car bearing Registration

No.TN-37-AU-8007 belonging to the 2nd respondent drove the same in a rash

and negligent manner and dashed on the 1st respondent and caused the

accident. The accident occurred only due to rash and negligent driving by

driver of the Car belonging to the 2nd respondent. In the accident, the 1st

respondent sustained grievous injuries and hence, filed the claim petition

claiming compensation against the 2nd respondent as owner and appellant as

insurer of the offending vehicle respectively. 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 the 2nd

respondent and directed the appellant as insurer of the said vehicle to pay a

sum of Rs.10,89,500/- as compensation to the 1st respondent.

5.Questioning the quantum of compensation granted by the Tribunal in

the award dated 23.09.2019, made in M.C.O.P. No.3878 of 2014, the

___

https://www.mhc.tn.gov.in/judis/ C.M.A.No.502 of 2021

appellant - Insurance Company has come out with the present appeal.

6.The learned counsel appearing for the appellant-Insurance Company

contended that the Tribunal has fixed excessive amount as monthly income.

The 1st respondent failed to prove that he suffered functional disability. The

Tribunal without giving any reason, erroneously fixed the functional

disability as 50% and adopted multiplier method for granting compensation.

The amount of Rs.1,00,000/- each awarded by the Tribunal towards pain and

suffering and loss of amenities are excessive. The 1st respondent availed staff

concession in the Hospital wherein his wife was employed. The 1st respondent

also admitted the same in her cross examination. The amounts awarded by the

Tribunal for medical expenses is also excessive and prayed for setting aside

the award of the Tribunal and allowing the appeal.

7.Per contra, the learned counsel appearing for the 1st

respondent/Caveator contended that the 1st respondent was working as a

Mason and due to the injuries sustained in the accident, he suffered fracture

___

https://www.mhc.tn.gov.in/judis/ C.M.A.No.502 of 2021

in both bones. He was referred to the Medical Board and the Medical Board

examined the 1st respondent and certified that he suffered 50% disability. The

Tribunal considering the nature of work, fixed functional disability at 50%

and adopted multiplier method. The total compensation awarded by the

Tribunal is not excessive and prayed for dismissal of the appeal.

8.Heard the learned counsel appearing for the appellant-Insurance

Company through video conference as well as the learned counsel appearing

for the 1st respondent and perused the materials available on record.

9.From the materials on record, it is seen that it is the case of the 1 st

respondent that he suffered fracture and the Medical Board certified that he

suffered 50% disability. The Tribunal accepted the disability certificate issued

by the Medical Board as the same was issued by the group of Doctors. The

Tribunal accepting the disability certificate without there being any evidence,

held that 50% disability will affect the 1st respondent's avocation up to 50%

and fixed the functional disability at 50% and adopted multiplier method.

___

https://www.mhc.tn.gov.in/judis/ C.M.A.No.502 of 2021

From the award of the Tribunal, it is seen that there is no discussion or reason

given by the Tribunal as to how 50% disability assessed by the Medical

Board would affect the 1st respondent's avocation up to 50%. On the failure of

the Tribunal not giving any reason for adopting multiplier method, the award

suffers infirmity. In view of the same, the said erroneous award is liable to be

set aside and is hereby set aside and the M.C.O.P. is remanded back to the

Tribunal for fresh consideration. It is open to the appellant and respondents to

let in further evidence to prove their case, if they so desire.

10.In the result, this Civil Miscellaneous Appeal is allowed and the

M.C.O.P. is remanded back to the Tribunal. The M.C.O.P. is of the year 2014

and the learned V Judge, Court of Small Causes, Chennai, is directed to

dispose of the M.C.O.P., as early as possible, in any event not later than six

months from the date of receipt of a copy of this judgment. The appellant-

Insurance Company is permitted to withdraw the award amount, if any lying

in the credit of M.C.O.P.No.3878 of 2014 on the file of the Motor Accidents

Claims Tribunal, V Judge, Court of Small Causes, Chennai, if the award

___

https://www.mhc.tn.gov.in/judis/ C.M.A.No.502 of 2021

amount has been already deposited by them. Consequently, the connected

Miscellaneous Petition is closed. No costs.

01.03.2021

Index : Yes/No Speaking Order : Yes/No gsa

To

1.The V Judge, Court of Small Causes, (Motor Accident Claims Tribunal), Chennai.

2.The Section Officer, V.R Section, High Court, Madras.

___

https://www.mhc.tn.gov.in/judis/ C.M.A.No.502 of 2021

V.M.VELUMANI, J.,

gsa

C.M.A. No.502 of 2021

01.03.2021

___

https://www.mhc.tn.gov.in/judis/