Madras High Court
The Branch Manager vs Ekambaram (Died) on 2 November, 2021
CMA.1145 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 13.04.2022
PRONOUNCED ON : 07.06.2022
C O RAM :
The Hon'ble Mrs. Justice NISHA BANU
C.M.A.No.1145 of 2014
and M.P.No.1 of 2014
----
The Branch Manager,
M/s.United India Insurance Co.Ltd.
No.28, Mylam Road
Meenachi Complex,
Tindivanam ... Appellant/3rd respondent.
Vs
1.Ekambaram (died)
2.A.Murugaiyan
3.Mangalakshmi
4.Mahadevan ... Respondents
R3 and R4 brought on record as LRs of the
deceased R1 vide order dated 2/11/2021.
PRAYER : CMA filed under Section 173 of Motor Vehicles Act, 1988, against
the judgment and decree passed in M.C.P.P.No.33 of 2011 on 09.01.2013 on
the file of learned Motor Accident Claims Tribunal, Villupuram District.
For Appellant : Mr.J.Chandran
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CMA.1145 of 2014
For Respondents : Mr.T.Dhanyakumar
JUDGMENT
This appeal is filed by the appellant/Insurance company against the
award passed in MCOP.No.33 of 2011 dated 09.01.2013 granting
compensation of Rs.12,80,040/- as excessive and unsustainable as the claimant
travelled along with bricks as load man and it is a prohibited travelling so the
insurance company is not liable to pay the compensation.
2. It is the case of the claimant that on 22.11.2010, about 8.30 A.M.,
when four men travelled in a Lorry, bearing Registration No.TN 37 E 4878,
from Brik kiln at Kendykuppam, Pondicherry to Kadapakkam, along with
bricks, near Marakanam, due to the rash and negligent driving of the driver of
the lorry and applying sudden brake, the four men sustained injuries. All four
injured claiming compensation filed MCOP Nos.33/2011, 34/2011, 38/2011
and 47 /2011 and award was passed by the Tribunal in all the four cases.
3. The Insurance Company, appellant herein, has filed this appeal
questioning the award passed in the claim petition No.33 of 2011, on the
grounds that the injured travelled as load man in the lorry and the injured is not
directly employed by the owner of the vehicle and so, the insurance company is
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CMA.1145 of 2014
not liable to pay compensation. The other contention is that the Tribunal
without any basis, fixed 70% disability and in the absence of income proof, by
taking Rs.9000/-, applying multiplier 15 arrived at loss of earning power as
Rs.11,34,000/- which is against the well laid principles of law.
4. On the other hand, the learned counsel for the injured claimant
submitted that compensation awarded is not at the higher side but a just and
reasonable compensation. The learned counsel filed medical documents of the
injured who subsequently died and prayed this court to confirm the award so as
the legal heirs would atleast get the fruits of the award.
5. Heard the learned counsel appearing for either side and perused
the award carefully.
6. Admittedly, the appellant/Insurance company has not filed appeals
challenging the liability or quantum of compensation awarded by the Tribunal
in respect of other 3 MCOPs. The Tribunal given a finding in the common order
passed in the four cases that all the injured claimants travelled in the Lorry as
loadman for loading and unloading the bricks and therefore, the 1 st and 2nd
respondent before the Tribunal viz., the insured and insurer are liable to pay the
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CMA.1145 of 2014
compensation. Since the said finding with respect to liability is accepted by the
appellant/insurance company and not challenged the award for the other 3
claimants, this court need not gone into the question of liability in this appeal.
So, the only question to be answered is in respect of quantum of compensation.
7. In the accident, the original claimant suffered grievous injuries and
fracture of right leg knee, right side shoulder, right side ribs and sustained
permanent disability. P.W.3 doctor in his evidence, stated that on his
examination of the injured, he found that there was no movement in the right
leg knee, 30% reduced action of knee and 20 degrees lesser muscle movements,
3rd to 7th ribs broken and having severe pain, lesser chest shrunk and expansion
and is reduced by 4 cm, fracture of tibia bone and assessed the disability as
70%. The Tribunal by following the judgment of the Honourable Supreme
Court in the case of Raj Kumar Vs Ajay Kumar and another reported in 2011
ACJ 1, held that the percentage of permanent disability as expressed by the
doctors with reference to the whole body or more than, not with reference to a
particular limb. Holding so, fixed the disability at 70% as assessed by the
doctor and arrived at loss of earning by adopting multiplier 15 and awarded
compensation of Rs.11,34,000/- under the head “Permanent disability”. In
addition to that taking note of the condition of the claimant, as he required
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CMA.1145 of 2014
attendants for his day to day activities, granted compensation of Rs.20,000/-
under the head “Attendant charges”. The Tribunal also granted compensation
under other heads and award altogether is tabulated as under:-
Permanent disability Rs.11,34,000/-
Pain and suffering 35,000/-
Nutritious food 10,000/-
Transport expenses 10,000/-
Attendant charges 20,000/-
Loss of income 54,000/-
Loss of amenities 15,000/-
Medical Bill 2,040/-
Total 12,80,040/-
Section 168 of the Act mandates that the endeavour of the Tribunal should be
to pay the just compensation to an accident victim. The Tribunal, in this case,
considered many factors for the purpose of arriving at the just compensation.
The idea behind the award of compensation was to give a helping hand to the
injured or the legal heirs of the victim of a road accident. The injured has to
receive compensation, commensurate with the injuries sustained by him. the
percentage of disability and other features which would stand in the way of
leading a normal life would be taken into consideration.
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CMA.1145 of 2014
8. In Arvind Kumar Mishra v. New India Assurance Co. Ltd.,
(2010) 10 SCC 254, the Supreme Court held that in case of functional
disability to be 70%, the loss of earning capacity is to be computed according to
the multiplier method. The Supreme Court further held that the whole idea of
compensation is to put the claimant in the same position as he was insofar as
money can.
9. In view of the above decisive rulings, this court finds that the
compensation awarded to the injured is just and reasonable and no grounds
made out in this appeal, to interfere with the award of the Tribunal.
Accordingly, the Civil Miscellaneous Appeal is dismissed. The award of the
Tribunal is confirmed. No costs. Consequently, connected MP is closed.
07.06.2022
Index :Yes/No
Internet :Yes/No
nvsri
To
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CMA.1145 of 2014
1. The Motor Accidents claims Tribunal,
Villupuram District.
2.The Section Officer, V.R.Section, High Court, Madras.
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CMA.1145 of 2014
J.NISHA BANU, J.
nvsri
C.M.A.No.1145 of 2014
07.06.2022
https://www.mhc.tn.gov.in/judis
