Madras High Court
The New India Assurance Co. Ltd vs Govindan (Died) ... I on 11 March, 2021
CMA No.1574 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.03.2021
Coram
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
CMA No.1574 of 2011 and
M.P.No.1 of 2011
The New India Assurance Co. Ltd.,
Third party Cell, 69-70, Sheikpet Nadu Street,
Kanchipuram. ... Appellant/ Claimant
Vs.
1. Govindan (died) ... I respondent/ Claimant
2. S. Sathiya ... II respondent/ I respondent
3. Kuppammal
4. Velmurugan
5. Selvam ... Respondents 3 to 5/
added in the appeal
(Respondents 3 to 5 brought on record as legal heirs of the
deceased R1 viz Govindan, vide order dated 16.02.2021 in
CMP No.14012, 14029 and 14031 in CMA 1574 of 2011)
Prayer:
Civil Miscellaneous Petitions filed under Section 173 of the Motor
Vehicles Act against the decree and judgment dated 03.02.2011 passed in
M.C.O.P.No.216 of 2006 by the Additional Subordinate Judge, Motor
Accident Claims Tribunal, Chengalpattu.
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For appellants : Mr.M.Krishnamoorthy
For Respondents : notice unserved to R2
JUDGMENT
Aggrieved over the orders passed by the Tribunal, the
Insurance company is before this court to set aside the same.
2. The first respondent/ Claimant has filed a claim petition
seeking compensation of Rs.2,00,000/- for the injuries sustained by him
in a road accident that took place on 17.04,2006.
3. The brief case of the claimants is as follows:
On 17.04.2006, the claimant was walking along G.S.T Road,
Kattankulathur and while he was nearing a Petrol bunk, a mini lorry
bearing registration NO.TN -32-C-1641 coming from Tambaram to
Chengalpattu route, dashed against him on his back side, thereby he
sustained fracture and multiple injuries all over his body. According to
the claimant, the rash and negligent driving of the driver of the mini lorry
was the cause of accident and since the owner of the lorry insured his
vehicle with the insurance company, both of them are liable to pay
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compensation to him.
4. The driver and the owner of the vehicle remained exparte
before the Tribunal and the insurance company contested the claim
petition by filing counter affidavit.
5. Before Tribunal, on the side of the claimant, the claimant
and Dr. S. Kannan Isac were examined as PW1 and PW2 respectively
and Ex.P1 to Ex.P8 were marked. On the side of the respondents, no oral
and documentary evidence was adduced.
6. After analysing the evidence on record, the Tribunal has
awarded a sum of Rs.3,84,500/- under various heads, which is extracted
here under.
Sl Heads Amount in
No Rs.
1 Loss of earning power(300x25 2,52,000
(bearing the Sunday being holiday)
x 12 x 8 = 72,20,000 x35%
2 Pain and suffering 25,000
3 Loss of amenities 10,000
4 Loss of income during treatment 90,000
period and convalescence period
(one year)
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Sl Heads Amount in
No Rs.
5 Transportation charges 2,000
6 Extra nourishment 5,000
Total 3,84,500
Aggrieved over the above said order, the insurance company has filed the
present appeal challenging the quantum of compensation.
7. Pending appeal, the sole claimant died and hence, his
legal heirs were impleaded as respondents 3 to 5.
8. The learned counsel appearing for the appellant/ insurance
company submitted that the Tribunal has awarded a huge amount as
compensation towards loss of earning power without any medical
records. He further submitted that the claimant himself stated in his
claim petition that his income per day is Rs.100/- and his monthly
income for 25 days is Rs.2,500/-, but the Tribunal has fixed the monthly
income as Rs.7,500/-, which is erroneous. He also contended that the
disability assessed by the Doctor did not speak about the loss of earning
power and no proof of income was filed, however, the Tribunal has
awarded compensation towards loss of earning power. Therefore, he
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prayed to set aside the orders passed by the Tribunal.
9.The contention of the claimant in the claim petition is that
due to the accident, the he has suffered a lot and he was working as a
mason and has earned a sum of Rs.300/- per day and due to the accident,
he is not able to do his mason work as done earlier and his future earning
capacity is totally affected.
10. Now the point for consideration is whether the
compensation awarded by the Tribunal has to be scaled down?
11. Point:
The contention of the learned counsel appearing for the
appellant is that, without any evidence and materials on record and
without any basis, the Tribunal has awarded compensation towards “ loss
of future earning capacity”. As per the decision of the Honourable
Supreme Court of India in Raj Kumar Vs. Ajay Kumar & Anr. reported in
2011(1) SCC 343, the Tribunal has to ascertain the actual extent of
permanent disability of the claimant based on the medical evidence and it
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has to determine whether such permanent disability has affected or will
affect his earning capacity. Further, the claimant should prove that the
disability suffered by him is a permanent and he lost his earning capacity
in future. In the light of the above decision, adoption of multiplier
method would not arise in this case and therefore, this court accept the
contention of the counsel for the appellant. As per Ex.P7, the Doctor
has assessed the disability suffered by the Claimant as 35% The above
said doctor was examined as PW2 and he has also deposed that the
claimant has sustained fracture on his left hip and due to the malunion of
the fracture, his movement is restricted. Considering the above said
evidence, it is appropriate to award a sum of Rs.3000/- per percentage.
Accordingly, a sum of Rs.1,05,000/- (35 x 3000) is awarded towards
permanent disability. Further, due to the accident, he would not be able
to do his work as earlier atleast for one year. As per the evidence of the
claimant as PW1 and the Ex.P6, the Tribunal has rightly fixed the
monthly income of the claimant as Rs.300/- and has rightly awarded a
sum of Rs.90,000/- towards " Loss of earning capacity during the
treatment period" . Inview of the above discussion and also considering
the facts of the case, it is appropriate for this court to modify the Award
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passed by the Tribunal under various heads as extracted hereunder.
Sl. Heads Compensation Compensation
No Awarded by the enhanced/
Tribunal Awarded by
this court
1 Loss of earning power 2,52,000 1,05,000
2 Pain and sufferings 25,000 25,000
3 Loss of amenities 10,000 15,000
4 Loss of income during 90,000 90,000
treatment period and
convalescence period
(1 year)
5 Transportation 2,000 2,000
charges
6 Extra nourishment 5,000 10,000
7 Attender charges - 10,000
Future medical - 10,000
8 expenses
Total 3,84,500 2,67,500
This amount shall carry interest at the rate of 7.5% per annum.
12. In the result,
(i) The civil miscellaneous appeal is partly allowed and the
compensation awarded by the Tribunal is scaled down from
Rs.3,84,500/- to Rs.2,67,500. No costs. The connected miscellaneous
petition is closed.
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(ii) The appellant/insurance company is directed to deposit
the revised compensation of Rs.2,67,500/- along with interest at the rate
of of 7.5% per annum from the date of claim petition till the date of
deposit, within a period of six weeks from the date of receipt of a copy of
this order, less the amount if already deposited.
(iii) On such deposit being made by the insurance company,
the third respondent (Kuppammal) is entitled to get Rs.67,500/- and the
fourth and fifth respondents (Velmurugan and Selvam) are entitled to get
Rs.1,00,000/- each, after following due process of law.
11.03.2021
Index : Yes/No
Internet: Yes/No
Speaking order/Non Speaking order
mst
To
1. The Additional Subordinate Judge, Motor Accident Claims Tribunal,
Chengalpattu.
2. The New India Assurance Co. Ltd.,
Third party Cell, 69-70, Sheikpet Nadu Street, Kanchipuram.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
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D.KRISHNAKUMAR, J.
mst
CMA No.1574 of 2011 and
M.P.No.1 of 2011
11.03.2021
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