Madras High Court
The New India Assurance Company ... vs Palani on 23 November, 2021
C.M.A.No.848 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.848 of 2014
and
M.P.No.1 of 2014
The New India Assurance Company Ltd.,
Rep by its Branch Manager,
1st floor, 92, East Coast Chambers,
C.N.Chetty Street, T.Nagar, Chennai. .. Appellant
Vs.
1.Palani
2.A.Anandh
3.P.Krishnasamy .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment and Decree dated 24.11.2012 in
M.C.O.P.No.605 of 2010 on the file of the Motor Accident Claims Tribunal,
Additional District Court, Dharmapuri.
For Appellant : Mr.K.Vinoth
For Respondents : Mr.Amar D. Pandiya for
Mr.Selvam for R1
R2- Not ready in notice
R3-Ex-parte
1/12
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C.M.A.No.848 of 2014
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the award dated 24.11.2012 in
M.C.O.P.No.605 of 2010 on the file of the Motor Accident Claims Tribunal,
Additional District Court, Dharmapuri.
2.The appellant/Insurance Company is the 3rd respondent in
M.C.O.P.No.605 of 2010 on the file of the Motor Accident Claims Tribunal,
Additional District Court, Dharmapuri. The 1st respondent filed the said claim
petition claiming a sum of Rs.5,00,000/- as compensation for the injuries
sustained by him in the accident that took place on 12.07.2007.
3.According to the 1st respondent, on the date of accident i.e., on
12.07.2007, at about 15.00 hours, while he and his friend were travelling in
the Tata Sumo bearing Registration No.TN 48 A 7195 belonging to the
respondents 2 and 3 from Dharmapuri to Marukalampatti and they were
nearing Rani Mookkanur Bus stop, the driver of the Tata Sumo drove the
same in a rash and negligent manner, dashed against the road side Tamarind
tree and caused the accident. In the said accident, the 1st respondent sustained
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C.M.A.No.848 of 2014
grievous injuries. Therefore, the 1st respondent filed the claim petition seeking
compensation against the appellant as insurer and respondents 2 and 3 as
owners of the vehicle.
4.The owners of the vehicle, the respondents 2 and 3 remained ex-parte
before the Tribunal.
5.The appellant filed counter statement denying the averments made by
the 1st respondent. The appellant denied the manner of accident and
contended that Tata Sumo belonging to the respondents 2 and 3 is not insured
with appellant at the time of accident. The driver of the Tata Sumo did not
possess valid driving license at the time of accident. The concerned Police
failed to forward the copies of FIR, vehicle particulars and insurance
particulars to the appellant. Hence, the appellant is not liable to pay any
compensation to the 1st respondent. At the time of accident, the 1st respondent
was not traveling in the Tata Sumo belonging to the respondents 2 and 3.
Therefore, the 1st respondent is not liable to get any compensation from the
appellant. FIR was lodged only after two days from the date of accident and
hence, the same is not true. The appellant denied the age, avocation, income
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C.M.A.No.848 of 2014
and nature of injuries sustained by the 1st respondent. In any event, the total
compensation claimed by the 1st respondent is excessive and prayed for
dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1
and Dr.S.Krishnakumar was examined as P.W.2 and marked 7 documents as
Exs.P1 to P7. The appellant/Insurance Company did not let in any oral and
documentary evidence.
7.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 Tata Sumo bearing Registration No. TN 48 A 7195 belonging
to the respondents 2 and 3 insured with the appellant, directed the
appellant/Insurance Company to pay a sum of Rs.2,30,600/- as compensation
to the 1st respondent and dismissed the claim petition against the 3rd
respondent.
8.Challenging the quantum of compensation granted by the Tribunal,
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C.M.A.No.848 of 2014
the appellant/Insurance Company has come out with the present appeal.
9.The learned counsel appearing for the appellant contended that in the
absence of any material evidence with regard to the income, the Tribunal has
fixed a sum of Rs.3,900/- per month including future prospects as notional
income of the 1st respondent and the same is excessive. The 1st respondent has
not proved that he suffered loss of earning capacity and the Tribunal
erroneously adopted multiplier method and awarded compensation. The
amounts awarded by the Tribunal towards pain and sufferings, transportation
and extra nourishment are excessive and prayed for setting aside the award
passed by the Tribunal.
10.Per contra, the learned counsel appearing for the 1 st respondent
submitted that the 1st respondent sustained injuries all over his body and
fracture on his right clavicle. To prove the injuries and disability, he examined
P.W.2/Doctor and filed Exs.P3/Accident Register, P5/Wound Certificate,
P6/Disability Certificate and P7/X-ray. P.W.2/Doctor examined the 1st
respondent clinically and certified that the 1st respondent suffered 35%
disability. At the time of accident, the 1st respondent was aged 23 years, he
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C.M.A.No.848 of 2014
was working as a cleaner and was earning a sum of Rs.4,500/- per month.
Due to the injuries sustained by him in the accident, he could not stand, sit,
squat and not able to do any work and not able to lift any weight freely as he
was doing earlier. But, the Tribunal reduced the percentage of disability
assessed by P.W.2/Doctor from 35% to 25% and adopted multiplier method
for awarding compensation. The Tribunal ought to have fixed disability at
35% while awarding compensation towards loss of earning capacity by
adopting multiplier method. The Tribunal has fixed a meagre sum of
Rs.3,900/- per month including future prospects as notional income of the 1 st
respondent. The Tribunal has not granted any amount towards loss of
amenities, attendant charges, medical expenses and damage to clothes. The
amounts awarded by the Tribunal under other heads are also not excessive
and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant/Insurance
Company as well as the learned counsel appearing for the 1 st respondent and
perused the entire materials available on record.
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C.M.A.No.848 of 2014
12.From the materials on record, it is seen that the 1st respondent has
claimed a sum of Rs.5,00,000/- as compensation for the injuries sustained by
him in the accident that took place on 12.07.2007. The Tribunal considering
the entire materials, held that the accident has occurred due to rash and
negligent driving by the driver of the Tata Sumo and the appellant as insurer
of the vehicle is liable to pay the compensation. According to the 1 st
respondent, he was aged 23 years at the time of accident, he was working as a
cleaner and was earning a sum of Rs.4,500/- per month. Due to the injuries
and disability, the 1st respondent has pain in the shoulder, clavicle and he
could not stand, sit and squat and not able to do any work and not able to lift
any weight freely as he was doing earlier. To prove the injuries and disability,
he examined P.W.2/Doctor and filed Exs.P3/Accident Register, P5/Wound
Certificate, P6/Disability Certificate and P7/X-ray. P.W.2/Doctor examined
the 1st respondent clinically and his medical records and certified that the 1 st
respondent suffered 35% disability. The Tribunal reduced the disability to
25% and adopted multiplier method for awarding compensation. The Tribunal
has not given any reason for adopting multiplier method. Similarly, the
disability assessed by P.W.2/Doctor is not controverted by the appellant. In
such circumstances, the Tribunal erroneously reduced the percentage of
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C.M.A.No.848 of 2014
disability to 25%. Hence, the 1st respondent is entitled to compensation for
35% disability. The 1st respondent has not proved that he suffered functional
disability and lost his earning capacity, due to the injuries and disability. The
Tribunal held that the 1st respondent did not undergo any surgery for fracture
suffered by him. Hence, the multiplier method adopted by the Tribunal is
liable to be set aside. Accordingly, a sum of Rs.2,10,600/- granted by the
Tribunal towards loss of earning capacity is set aside. The 1 st respondent is
entitled to compensation only by adopting percentage method. The accident is
of the year 2007. A sum of Rs.3,000/- is granted per percentage of disability
and hence, a sum of Rs.1,05,000/- (Rs.3,000/- x 35%) is granted towards
disability. At the time of accident, the 1st respondent was working as a cleaner
and was earning a sum of Rs.4,500/- per month. In the absence of material
evidence with regard to the income, the Tribunal has fixed a sum of
Rs.3,900/- per month including future prospects as notional income of the 1 st
respondent. The accident is of the year 2007. Even a coolie, will earn more
than Rs.200/- per day. Considering the age and nature of work of the 1st
respondent, a sum of Rs.6,500/- per month is fixed as notional income of the
1st respondent. Due to injuries and disability, he could not have worked atleast
for a period of four months. Hence, a sum of Rs.26,000/- (Rs.6,500/- x 4) is
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C.M.A.No.848 of 2014
granted towards loss of income. Though the 1st respondent has not filed any
document with regard to medical expenses, he could have spent some amount
towards medical expenses as he suffered fracture and disability. Considering
the same, a sum of Rs.10,000/- is granted towards medical expenses. Due to
the injuries and fracture, family members of the 1 st respondent would have
attended his work. The Tribunal has not granted any amount towards
attendant charges. A sum of Rs.10,000/- is granted towards attendant
charges. In view of the fracture and disability, the 1st respondent has to face
some discomfort in his routine work. Hence, a sum of Rs.10,000/- is granted
towards loss of amenities and Rs.500/- is granted towards damage to clothes.
The amounts awarded by the Tribunal under other heads are just and
reasonable and hence, the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S. No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted
1. Loss of earning 2,10,600/- - Set aside
capacity
2. Pain and sufferings 10,000/- 10,000/- Confirmed
3. Transport expenses 5,000/- 5,000/- Confirmed
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C.M.A.No.848 of 2014
4. Extra nourishment 5,000/- 5,000/- Confirmed
5. Loss of amenities - 10,000/- Granted
6. Medical expenses - 10,000/- Granted
7. Attendant charges - 10,000/- Granted
8. Damage to clothes - 500/- Granted
9. Loss of income - 26,000/- Granted
10. Disability - 1,05,000/- Granted
Reduced by
Total 2,30,600/- 1,81,500/- Rs.49,100/-
13.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.2,30,600/- is hereby reduced
to Rs.1,81,500/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit. The appellant-Insurance Company is
directed to deposit the 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, to the
credit of M.C.O.P.No.605 of 2010 on the file of the Motor Accidents Claims
Tribunal, Additional District Court, Dharmapuri. On such deposit, the 1st
respondent is permitted to withdraw the award amount now determined by
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C.M.A.No.848 of 2014
this Court, along with interest and costs, less the amount if any, already
withdrawn by making necessary applications before the Tribunal. The
appellant-Insurance Company is permitted to withdraw the excess amount
lying in the credit of M.C.O.P.No.605 of 2010, if the entire award amount has
already been deposited by them. This appeal is dismissed against the 3 rd
respondent. Consequently the connected Miscellaneous Petition is closed. No
costs.
23.11.2021
vkr
Index : Yes / No
Internet : Yes / No
To
1.The Additional District Judge,
Motor Accident Claims Tribunal,
Dharmapuri.
2.The Section Officer,
VR Section, High Court,
Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.848 of 2014
V.M.VELUMANI, J.
vkr
C.M.A.No.848 of 2014 and
M.P.No.1 of 2014
23.11.2021
https://www.mhc.tn.gov.in/judis
