Madras High Court
The Branch Manager vs Sanjai Harish on 11 March, 2021
C.M.A.No.1601 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.03.2021
CORAM:
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.1601 of 2014
and M.P.No.1 of 2014
The Branch Manager,
The Oriental Insurance Company Limited,
Lakshmi Towers, No.200/3, 1st floor, R.V.Road,
Adj. To Bangalore Hospital, Bangalore-4. .. Appellant
Vs.
1.Sanjai Harish
S/o.Hariswarnath
2.Sonesh Sood
S/o.Ramesh Sood
(The 2nd respondent remained
ex-parte in the lower court and hence
notice to 2nd Respondent in the
above appeal is dispensed with) .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 25.07.2013 made
in M.C.O.P.No.145 of 2013 on the file of the Motor Accident Claims
Tribunal, Court of Special Sub Judge, Krishnagiri.
For Appellant : Mr.Elveera Rajendran
For R1 : Mr.Mukund R.Pandian
1/10
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C.M.A.No.1601 of 2014
JUDGMENT
(The case has been heard through video conference)
This Civil Miscellaneous Appeal has been filed against the award dated
25.07.2013 made in M.C.O.P.No.145 of 2013 on the file of the Motor
Accident Claims Tribunal, Court of Special Sub Judge, Krishnagiri.
2.The appellant is the insurer of the vehicle, 2nd respondent in
M.C.O.P.No.145 of 2013 on the file of the Motor Accident Claims Tribunal,
Court of Special Sub Judge, Krishnagiri. The first respondent filed the said
claim petition, claiming a sum of Rs.15,00,000/- as compensation for the
injuries sustained by him in the accident that took place on 15.05.2006.
3.According to the 1st respondent/claimant, on 15.05.2006 at about
11.30 a.m., the 1st respondent was riding the Hero Honda Splendor
Motorcycle on Hosur to Bangalore National Highway towards Bangalore. He
was proceeding on the left side of the road, slowly and cautiously and thus
going near Ashok Leyland Company Plant. At that time, a Tata Mobile
Vehicle bearing Registration No.KA-01-N-4488, belonging to the 2nd
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C.M.A.No.1601 of 2014
respondent herein and insured with the appellant/Insurance Company driven
by its driver in a rash and negligent manner and collided head on with the
said motorcycle. Due to the said impact, the 1st respondent sustained grievous
injuries. Immediately, he took treatment at St.Johns Medical College
Hospital, Bangalore. The Hosur TIW Police have registered a case against the
driver of the said Pick up van in Cr.No.164/2006 U/s.279, 338 IPC.
4.The 2nd respondent remained ex-parte before the Tribunal.
5.The appellant/Insurance Company filed counter statement stating that
the accident occurred only due to rash and sudden crossing of the said Hero
Honda Splendor vehicle. There is no fault on the part of the Tata Mobile van
and the appellant/ Insurance Company is not liable to pay compensation to
the 1st respondent. The age, occupation, income of the injured are all denied
and the 1st respondent sustained only simple injuries. The compensation
claimed by the 1st respondent is high.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1
and Dr.M.Devendiran, was examined as P.W.2 and marked seventeen
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C.M.A.No.1601 of 2014
documents as Exs.P-1 to P-17. On the side of the appellant/Insurance
Company, neither oral nor documentary evidence was adduced.
7.The Tribunal, considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to the rash and negligent
driving by the driver of the Tata Mobile van belonging to the second
respondent and directed both the second respondent/owner of the Tata
Mobile van as well as the appellant-Insurance Company to jointly and
severally pay a sum of Rs.7,58,400/- as compensation to the first
respondent/claimant.
8.Challenging the award of the Tribunal dated 25.07.2013 made in
M.C.O.P.No.145 of 2013, the appellant-Insurance Company has come out
with the present appeal.
9.The learned counsel appearing for the appellant/Insurance Company
submitted that the Tribunal failed to appreciate the facts of the case in a
proper perspective. The claimant contended that he was running a partnership
firm, but no proof of income was furnished. Also as per the evidence
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C.M.A.No.1601 of 2014
available before the Tribunal, the claimant had not suffered from partial
permanent disability affecting his income or livelihood. In such matters, the
Tribunal need not have invoked the multiplier system mechanically. For the
accident that occurred on 15.05.2006 and considering the age of the claimant
as 29 years, the percentage system can be invoked. For the 45% partial
permanent disability assessed by the P.W.2/Doctor, who had not treated the
claimant, Rs.2,000/- may be calculated for each percentage of disability. For
the rest of the headings, the amount allotted by the Tribunal the
appellant/Insurance Company does not have any objection. The objection is
only with regard to mechanical calculation of multiplier system whereas the
Hon'ble Supreme Court had deprecated the practice of mechanically applying
the multiplier system in almost all the cases. Therefore, the learned counsel
for the appellant/Insurance Company submits that the award passed by the
Tribunal regarding the “loss of earning capacity” is not fair and is to be set
aside.
10. The learned counsel appearing for the 1st respondent/claimant
submitted that the claimant sustained (1) Lacerated wound 8 cm X 3 cms on
back of left wrist and lower forearm, Extension tendon injury. Surgery:
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C.M.A.No.1601 of 2014
Repair OFL tendons by plastic surgeons on 16.06.2006 (2) pain tenderness
and inability to move the right hip, movements painful, X-ray – posterior
dislocation of right hip and fracture posterior UP of Acetebulum, (3) Multiple
Abrasions over right leg. Further, the learned counsel for the 1 st
respondent/claimant submits that he underwent hospitalization from
16.05.2006 to 29.06.2006 and his posterior dislocation of right hip with
posterior cip fracture of acetabulum-Left forearm tendon injury. Procedure :
Repair of tendons of left forearm on 16.05.2006. Further, he support of the
contention of the claimant regarding permanent disability and his avocation
he had furnished Ex.P-7/Provisional registration of Small Scale Industries in
the name of the 1st respondent, Ex.P-8/Partnership Deed of the petitioner with
one Murugan, Ex.P-9/Rental Agreement of the 1st respondent's tool unit,
Ex.P10/R.C in the name of the 1st respondent. Therefore, the learned counsel
for the 1st respondent/claimant submits that even though, the 1st
respondent/claimant have claimed Rs.15,00,000/ as compensation for the
partial permanent disability, the learned Tribunal had fixed the notional
income and applied the multiplier. Therefore, the contention of the learned
counsel for the appellant that the multiplier method cannot be resorted to in
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C.M.A.No.1601 of 2014
this case has to be rejected. The appeal preferred by the appellant/Insurance
Company is liable to be dismissed.
Point for Consideration:
Whether the Appellant/Insurance Company is entitled for reduction of
compensation?
11.On appreciation of the evidence available before the Tribunal, the
age of the injured is 29 years on the date of the accident. The appellant
sustained hip fracture and left wrist and for which he had been taking
treatment and had recovered. In such circumstances, the injured can sit and
perform his functions in his business. Regarding the wrist, it is a tendon
injury and does not affect his avocation of doing business. Therefore, there is
no claim of partial permanent disability as pointed out by the learned counsel
for the appellant/Insurance Company regarding the affecting his livelihood or
income. Therefore, considering 45% disability assessed by P.W.2/Doctor,
Rs.3,000/- per percentage for 45% works out to Rs.1,35,000/-. That will be
the reasonable award. The Tribunal has awarded a sum of Rs.36,000/-
(Rs.6,000/- X 6) towards “partial loss of income” and this Court reduced the
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C.M.A.No.1601 of 2014
same to a sum of Rs.18,000/- (Rs.6,000/- X 3) towards “partial loss of
income”. The other heads under which compensation was awarded by the
claims Tribunal are maintained as such.
S.N Description Amount awarded Amount awarded Award confirmed
o by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Loss of earning 4,89,600/- 1,35,000 Reduced
capacity
2. Pain & sufferings 50,000/- 50,000/- Confirmed
3. Nutrition & 20,000/- 20,000/- Confirmed
transportation
4. Medical bills 1,08,800/- 1,08,800/- Confirmed
5. Computer repair 19,000/- 19,000/- Confirmed
bills
6. Future medical 25,000/- 25,000/- Confirmed
expenses
7. Attendant charges 10,000/- 10,000/- Confirmed
8. Partial loss of 36,000/- 18,000/- Reduced
income
Total Rs.7,58,400/- Rs.3,85,800/- Reduced by
Rs.3,72,600/-
12.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.7,58,400/- is hereby reduced
to Rs.3,85,800/- together with interest at the rate of 6% per annum from the
date of claim petition till the date of deposit. Both the 2nd respondent/owner
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C.M.A.No.1601 of 2014
of the vehicle as well as the appellant/Insurance Company are jointly and
severally directed to deposit the reduced award amount now determined by
this Court along 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
judgment. On such deposit, the 1st respondent/claimant is permitted to
withdraw the award amount now determined by this Court along with
interest and costs, after adjusting the amount if any, already withdrawn. The
appellant/Insurance Company is permitted to withdraw the excess amount
lying in the deposit to the credit of M.C.O.P.No.145 of 2013, if the entire
award amount has already been deposited by them. No costs. Consequently,
connected Miscellaneous Petition is closed.
gbi 11.03.2021
To
1.The Special Sub-Judge,
Motor Accident Claims Tribunal,
Krishnagiri.
2.The Section Officer,
V.R.Section, High Court of Madras.
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C.M.A.No.1601 of 2014
SATHI KUMAR SUKUMARA KURUP, J.
gbi
C.M.A.No.1601 of 2014
and M.P.No.1 of 2014
11.03.2021
https://www.mhc.tn.gov.in/judis/
