Madras High Court
The Oriental Insurance Company ... vs P.Nallu on 9 September, 2021
C.M.A.(MD)No.1073 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved Date : 09.09.2021
Delivered Date : 27.01.2021
CORAM :
THE HONOURABLE MRS. JUSTICE R.THARANI
C.M.A.(MD)No.1073 of 2014
and
M.P.(MD).No.1 of 2014
The Oriental Insurance Company Ltd.,
73/B-1, Salai Road,
Laksmi Complex,
Thillai Nagar,
Trichy-18 .. Appellant
Vs.
1.P.Nallu
S/o.Perumal
2.K.Selvakumar
S/o.Kannai ... Respondents
Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set
aside the order of the Motor Accident Claims Tribunal, Trichy made in
M.C.O.P.No.1053 / 2013 dated 28.02.2014 and allow the appeal with costs.
For Appellant : Mr.C.Jawahar Ravindran
For 1st Respondent : Mr.N.Sudhagarnagaraj
For second Respondent : Mr.Arun
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C.M.A.(MD)No.1073 of 2014
JUDGMENT
The Civil Miscellaneous Appeal is filed against the award passed in
M.C.O.P. No.1053 of 2013, dated 28.02.2014 on the file of the Motor Accident
Claims Tribunal (Special Sub-ordinate Judge), Trichy.
2.The appeallant herein is the second respondent, the first respondent
herein is the claimant and the second respondent herein is the first respondent int
he main claim petition.
3.Brief substance of the petition in M.C.O.P.No.1053 of 2013 is as
follows:-
(i) On 21.05.2011 at about 09.05 p.m., near Amarar Chinnasamy Park,
K.K.Nagar, Trichy on K.K.Nagar road, when the first respondent/petitioner was
driving a motorccycle bearing registeration No.TN.48-C-4142 on the extreme left
side of K.K.Nagar road in a normal speed and adhering the traffic rules carefully,
the another Motorcycle bearing registeration No.TN-45-AS-2434, came from the
opposite direction in a rash and negligent dashed against the peittioner's vehicle.
The claimant sustained multiple injuries all over his body. Thereafter, he was
admitted in the Government Head Quarters Hospital, Trichy for first aid and then,
he was admitted in KMC Speciality hospital, Trichy and took that must as an
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C.M.A.(MD)No.1073 of 2014
inpatient for a period of one month and then he got treatment at another private
hospital. The petitioner claimed a sum of Rs.10,00,000/- as compensation.
4.Brief substance of the counter filed by the second respondent is as
follows:-
The amount of compensation stated in the claim petition is high. The
accident occurred only due to the negligence on the part of the claimant. The
claimant has not possessed a valid and effective driving licence to drive the motor
Cycle at the time of accident. The petitioner has violated the provisions of the
Motor Vehicles Act and insurer is not at all liable to pay compensation.
5.The nature and the manner of the accident is wrongly mentioned in the
petition. The first respondent is not responsible for the accident. The petitioner
consumed alcohol and drove the Motor Cycle in a negligent manner and
suddently crossed the road and invited the accident. The age, nature of injuries,
nature of treatment and occupation have to be proved by producing relevant
documents.
6.Three witness were examined and 9 documents were marked on the side
of the petitioner. Two witnessess were examined and 1 document was marked on
the side of the respondnet. After hearing both side, the Tribunal has awarded a
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C.M.A.(MD)No.1073 of 2014
sum of Rs.6,40,700/- (Rupees Six Lakhs Forthy Thousand and Seven Hundred
Only) to be paid by the second respondent therein. Aggrieved by the same, the
appellant/insurer has preferred this appeal.
7.On the side of the appellant, it is stated that it was the claimant who rode
the two wheeler under the influence of alcohol and he invited the accident and the
tribunal has wrongly fixed 90% negligence on the part of the rider of the two
wheeler. A doctor from the Government Hospital was examined and he has
specifically stated that at the time of the accident, the claimant had consumed
alcohol. In the Accident register which was prepard immediately after the
accident was marked as Ex.R2 wherein, it was specifically mentioned that the
petitioner “breath smells of alcohol” and in the discharge summary of KMC
marked as Ex.P2, it was stated that “patient was a in unconscious stage due to the
influence of alcohol.”
8.The Tribunal, without analyzing the available evidence, has fixed 90%
negligence on the part of the rider of the second respondent's vehicle. The
Tribunal has earroneously applied multiplier 15 for calculating compensation for
the disability. The doctor has wrongly and excessively assessed the disability of
the claimant. The doctor has fixed 33% disability for head injury, 40% disability
for the fracture and fixed 73% disability in total, which is too excessive.
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C.M.A.(MD)No.1073 of 2014
9.The learned counsel for the appellant has relied upon the following
judgments.
(i) United India Insurance Company Vs. Veluchamy & another
reported in 2005 (1) TNMAC -87, wherein it is stated as follows:-
''Court must first form opinion from evidence and probabilities,
of nature and extent of loss- Then, must decide what claimant would
have earned if accident had not happened, allowing for future
increase or decrease in rate of earnings-And how long loss will
continue, whether incapacity is for life or for shorter period Court
should also make estimate of amount which claimant could still earn
in future, notwithstanding disabilities sustained by him.''
(ii) Rajkumar Vs Ajaykumar & another reported in 2010 (2) TNMAC
Page 581 and the relevant paragraphs are extracted hereunder:-
''Percentage of Permanent Disability with reference to whole
body of a person cannot be assumed to be percentage of loss of
Earning Capacity- Loss of Earning Capacity is something that will
have to be assessed by Tribunal with reference to evidence in entirely-
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C.M.A.(MD)No.1073 of 2014
Same Permanent Disability may result in different percentage of loss
of Earning Capacity in different persons depending upon nature of
profession, occupation or job, age, education and other factors-
Illustrated.
Tribunal to ascertain what activities injured/Claimant could
carry on in spite of Permanent disability and what he would not do-
Where loss of Future Earning Capacity is taken as 100% or even more
than 50% and compensation is awarded, need to award loss of
Amenities in Life/Loss of Expectation of life may disappear and only
nominal amount may have to be awarded -Otherwife there may be
dublication in award of compensation.
(iii)National Insurance Co Vs. Rayappan reported in 2011 (2) TNMAC
Page 174 -MHC and the relevant paragraph is extracted hereunder:-
''Injured aged 34 years suffered fracture of tibia and fibula or
right leg-Movement of right Knee restricted to 10- Disability
assessed by Doctor at 40%- Tribunal fixing disability at 25% and
applying multiplier method awarded Rs.1,92,000/- towards
Permanent Disability-Not proper-Tribunal in case of injury of this
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C.M.A.(MD)No.1073 of 2014
nature ought not to have awarded compensation by resorting to
multiplier method.''
(iv) National Insurance Co Vs. Ramesh & another reported in 2013 (2)
TNMAC Page 583 – MHC
''Tribunal applying Multiplier method awarding Loss of Future
Income at Rs.1,55,000/- If proper-Contention that Tribunal applied
Multiplier method on basis of evidence of Doctor, who did not treat
Claimant and on assumption of likelihood of Claimant being thrown
out of job- Considering young age Claimant as also fact of fast
recovery, adopting Multiplier method, held not proper.''
10.On the side of the appellant, it is stated that the first claimant alone was
responsible for the accident and that the driver of the second respondent vehicle
was not at all responsible for the accident.
11. Copy of the First Information Report was marked as Ex.P1. On the
basis of the evidence of P.W.1 and on the basis of Ex.P1, it is decided that the
rider of the motor cycle bearing registration No.TN 45-AS-2434 was responsible
for the accident. On the basis of Ex.R2, the tribunal has fixed 10% liability on the
claimant on which is reasonable.
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C.M.A.(MD)No.1073 of 2014
12.P.W.2/Dr.M.K.Muralidharan has fixed the disability at 33% and issued
the disability certificate-Ex.P6. X-ray report was marked as Ex.P7. Discharge
Summary was marked as Ex.P2. C.T. Scan was marked as Ex.P3. P.W.
3/Dr.R.Ravi has issued disability certificate-Ex.P8. He fixed the disability at 40%
and X-ray report was marked as Ex.P9. On the basis of the evidence of P.W.1 and
P.W.2 and on the basis of Ex.P2, P3 and P6 to P9, the tribunal has fixed the
disability at 40%, which is reasonable. For 40% disability the claimant is entitled
for Rs.1,20,000/- as compensation. For the period of treatment and for the period
of rehabilitation the claimant is entitled for Rs.18,000/- towards temporary loss of
income. Rs.10,000 is awarded for pain and sufferings.
13.Doctor's prescriptions were marked as Ex.P4, Medical Bills were
marked as Ex.P5. The Tribunal has awarded a sum of Rs.3,83,686.70/- for
medical bills and the same was rounded off as Rs.3,83,700/-. The tribunal has
awarded Rs.5,000/- for transportation, Rs.5,000/- for extra Nourishment, Rs.
2,000/- for attendant charges. The said award of the tribunal are very reasonable.
In total, the claimant is entitled to Rs.5,43,700/- as compensation. After deducting
10% towards his own negligence, the claimant is entitled for Rs.4,88,330/-. The
same is rounded off to Rs.4,88,500/-.
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C.M.A.(MD)No.1073 of 2014
14.This Civil miscellaneous appeal is partly allowed and the award passed
in M.C.O.P.No.1053 of 2013 dated 28.02.2014 on the file of the Motor Accident
Claims Tribunal (Special Sub-ordinate Judge), Trichy, is hereby reduced from
Rs.6,40,700/- to Rs.4,88,500/-.
15.The Appellant/ Insurance Company is directed to deposit a sum of
Rs.4,88,500/-(Rupees Four Lakhs Eighty Eight Thousand Five Hundred only)
along with interest at the rate of 7.5% p.a from the date of petition till the date of
deposit and cost within a period of eight weeks from the date of receipt of a copy
of this judgment, if not already deposited, less the amount deposited, if any. On
such deposit being made, the first respondent/claimant is permitted to withdraw
the entire award amount, less the amount already withdrawn, if any. Excess
amount if any, shall be refunded to the appellant/Insurance Company. The
Claimant is not entitled for interest for the default period, if there is any default.
No costs. Consequently, the connected miscellaneous petition is closed.
27.01.2022
Internet : Yes/No
Index : Yes/No
tta
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C.M.A.(MD)No.1073 of 2014
Note : In view of the present lock down owing to COVID – 19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be the responsibility of the
advocate / litigant concerned.
To
1.The Motor Accidents Claims Tribunal
(Special Sub-ordinate Judge),
Trichy.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)No.1073 of 2014
R.THARANI, J.
tta
C.M.A.(MD)No.1073 of 2014
and
M.P.(MD).No.1 of 2014
27.01.2022
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