Madras High Court
Oriental Insurance Co. Ltd vs P Sekar ... 1St on 9 September, 2021
CMA.No.2558 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.09.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
CMA No. 2558 of 2016
and CMP No.18277 of 2016
and Cross Objection No.2 of 2017
Oriental Insurance Co. Ltd.,
Oriental House, 2nd floor, Old No.115,
New No.216, Prakasam Salai,
Broadway, Chennai 600 108.
... Appellant in CMA No. 2558 of 2016 &
1st Respondent in Cr. Obj.No.2 of 2017
vs.
1. P Sekar ... 1st respondent in CMA.No.2558 of 2016 &
Cross Appellant in Cr.Obj.No.2 of 2017
2. K Devendran ... 2nd respondent in CMA No. 2558 of 2016
as well as in Cr.Obj.No.2 of 2017
Prayer in CMA.No.2558 of 2016: Civil Miscellaneous Appeal filed
under Section 173 of the Motor Vehicles Act, 1988 against the Judgement
and Decree dated 10th day of April, 2015 made in M.C.O.P. No.7596 of
2013 on the file of the Motor Accidents Claims Tribunal (IV Court of
Small Causes) of Madras.
https://www.mhc.tn.gov.in/judis/
CMA.No.2558 of 2016
Prayer in Cr.Obj.No.2 of 2017: Cross Objection filed under Order XLI
Rule 22 of Code of Civil Procedure against the award dated 10.04.2015
and made in M.C.O.P. No.7596 of 2013 on the file of the Motor
Accidents Claims Tribunal, IV Judge, Small Causes, Chennai.
For Appellant in
CMA.No.2558 of 2016 & for
1st respondent in Cr.Obj.No.
2 of 2017 : Mr. K. Vinod
for E.L. Veera Ravindhran
For 1st Respondent in
CMA.No.2558 of 2016 & for
the Cross Appellant in Cr.Obj.No.
2 of 2017 : Ms. A. Subadra
for Mr.F.Terry Chella Raja
COMMON JUDGMENT
This Civil Miscellaneous Appeal has been filed by the Insurance
Company challenging the quantum of compensation awarded by the
Tribunal under the impugned award dated 10.04.2015 passed by the Motor
Accident Claims Tribunal (IV Court of Small Causes of Madras) in
M.C.O.P. No. 7596 of 2013. According to the insurance company, the
quantum of compensation awarded by the Tribunal is excessive.
Unsatisfied with the quantum of compensation awarded by the
Tribunal, the claimant has also filed a cross objection Cr.Obj.No.2 of 2017
https://www.mhc.tn.gov.in/judis/
CMA.No.2558 of 2016
challenging the very same award.
2. The Tribunal under the impugned award has directed the
insurance company to pay the claimant a compensation of Rs.7,24,000/- as
detailed hereunder.
S. No. Heads Awarded amount
(Rs.)
1. Disability 1,50,000
2. Pain and suffering 1,00,000
3. Extra nourishment 75,000
4. Transport to Hospital 75,000
5. Damages to cloth 3,000
6. Attender Charges 50,000
7. Medical expenses 1,01,000
8. Future Medical Expenses 50,000
9. Loss of Income 60,000
10. Loss of Earning Power 60,000
Total 7,24,000
3. The claimant sustained open fracture of right patella with deep
laceration, fracture of 2nd metatarsal neck right foot and fracture of ulna
styloid as a result of an accident which happened on 17.10.2013 caused
by a vehicle insured with the insurance company. The nature of injuries
sustained by the claimant as a result of the accident has not been disputed
https://www.mhc.tn.gov.in/judis/
CMA.No.2558 of 2016
by the Insurance Company before the Tribunal.
4. The claimant was aged 38 years and in the claim petition, he
pleaded that he was an owner cum driver. But no documentary evidence
was placed by him before the Tribunal to prove that he was earning
Rs.15,000/- p.m. as claimed in his claim petition. Therefore, the Tribunal
has fixed his monthly income on notional basis at Rs.10,000/- p.m. The
accident happened on 17.10.2013. This Court is of the considered view
that since documentary evidence has not been produced by the claimant to
prove his monthly income, the fixation of notional monthly income at
Rs.10,000/- by the Tribunal is on the higher side and it has to be reduced
to Rs.8,000/-. Accordingly, this Court reduces the notional monthly
income of the claimant as Rs.8,000/- instead of Rs.10,000/- fixed by the
Tribunal.
5. The Claimant took treatment at Parvathi Hospital on inpatient
between 17.10.2013 and 25.10.2013 and the discharge summary given by
the Hospital was marked as Ex P2 and the Medical Prescriptions were
marked as Ex P4 before the Tribunal. The period of hospitalization is 9
days. The Doctor (PW2) has assessed the disability of the Claimant at
55% and the Tribunal has reduced the same to 50%, after giving
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CMA.No.2558 of 2016
reasons for the said reduction under the impugned award. This Court
confirms the assessment made by the Tribunal as regards the claimant's
disability. The Tribunal has awarded a compensation of Rs.1,50,000/-
towards 50% disability suffered by the claimant calculated at Rs.3,000/-
per percentage of disability which is confirmed by this Court.
6. However, the compensation awarded by the Tribunal under the
heads pain and suffering at Rs.1,00,000/-, extra nourishment at Rs.75,000,
transport to hospital at Rs.75,000/-, attender charges at Rs.50,000/- and
future medical expenses at Rs.50,000/- is on the higher side as the
Tribunal has not taken note of the fact that the claimant was hospitalized
only for a period of 9 days. Therefore, this Court reduces the
compensation under the aforementioned heads to Rs.40,000/-, Rs.20,000/-
, Rs.20,000/-, Rs.25,000/- and Rs.25,000/- respectively.
7. Insofar as compensation awarded by the Tribunal towards loss of
income at Rs.60,000/- is concerned, this Court is of the considered view
that the said compensation is also on the higher side. The Tribunal has
assessed the compensation towards loss of income at Rs.60,000/- based on
the assessment of notional monthly income of the claimant at Rs.10,000/-
for a period of 6 months. This Court is of the considered view that since
https://www.mhc.tn.gov.in/judis/
CMA.No.2558 of 2016
the claimant was hospitalized only for a period of 9 days and no evidence
has been produced by him before the Tribunal to prove that he was unable
to do his regular employment for a period of 6 months, the Tribunal ought
not to have awarded Rs.60,000/- towards loss of income calculated at
Rs.10,000/- per month for a period of six months. Therefore, this court
reduces the compensation towards loss of income to Rs.40,000/-
calculated at Rs.8,000/- per month for a period of five months from
Rs.60,000/- calculated at Rs.10,000/- per month for a period of six
months.
8. The Tribunal has also erroneously awarded a compensation of
Rs.60,000/- towards loss of earning power to the claimant which he is not
legally entitled to in view of the fact that the Tribunal has already awarded
disability compensation amounting to Rs.1,50,000/- and in view of the fact
that the claimant was hospitalized only for a period of 9 days. Hence, this
Court sets aside the compensation awarded by the Tribunal at Rs.60,000/-
towards the loss of earning power.
However, the Tribunal has also failed to award any compensation
towards the loss of amenities to the claimant which he is legally entitled to.
https://www.mhc.tn.gov.in/judis/
CMA.No.2558 of 2016
After giving due consideration to the nature of injuries sustained by the
claimant and the period of hospitalization, this Court awards a
compensation of Rs.10,000/- towards loss of amenities to the claimant.
The Tribunal has rightly awarded a compensation of Rs.3,000/-
towards damage to clothing and the same is confirmed by this Court.
The Tribunal has awarded a compensation of Rs.1,01,000/- towards
medical expenses, as per the medical bills produced by the claimant which
were marked as Ex.P3 and the same is confirmed by this Court.
9. For the foregoing reasons, the amount awarded by the Tribunal is
reduced from Rs.7,24,000/- to Rs.4,34,000/- in the following manner:
Heads Amount Amount
awarded by awarded by the
the tribunal Court
Disability 1,50,000 1,50,000
Pain and suffering 1,00,000 40,000
Extra nourishment 75,000 20,000
Transport to Hospital 75,000 20,000
Damages to clother 3,000 3,000
Attender Charges 50,000 25,000
Medical expenses 1,01,000 1,01,000
Future Medical Expenses 50,000 25,000
Loss of Income 60,000 40,000
Loss of Earning Power 60,000 ----------
Loss of amenities ---------- 10,000
7,24,000 4,34,000
https://www.mhc.tn.gov.in/judis/
CMA.No.2558 of 2016
10.In view of the reasons stated supra, the Claimant is not entitled
for any enhancement as sought for in the Cross Objection.
11. In the result, the Appeal filed by the Insurance Company in
CMA No. 2558 of 2016 is partly allowed by reducing compensation
awarded by the Tribunal under the impugned award from Rs.7,24,000/- to
Rs.4,34,000/- and the Cross Objection filed by the Claimant does not
deserve any merit and the same is dismissed. No costs.
12. Learned counsel for the Insurance company would submit
that the entire amount awarded by the Tribunal has already been deposited
by the Insurance Company before the Tribunal. Since the entire award
amount has already been deposited and this Court has reduced the award
amount, the Insurance Company who is the Appellant in CMA.No.2558
of 2016 as well as the first respondent in Cr.Obj.No.2 of 2017 is permitted
to withdraw the excess amount deposited by them before the Tribunal by
filing an appropriate application. The Tribunal shall transfer the amount as
reassessed by this Court lying to the credit of MCOP. No. 7596 of 2013 to
the bank account of the claimant who is the first respondent in CMA.
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CMA.No.2558 of 2016
No.2558 of 2016 and the cross appellant in Cr.Obj.No.2 of 2017 directly
through RTGS within a period of one week within a period of one week
from the date of receipt of a copy of this Judgment.
09.09.2021
ab
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
To
1. Motor Accidents Claims Tribunal /
IV Court of Small Causes
Madras
https://www.mhc.tn.gov.in/judis/
CMA.No.2558 of 2016
ABDUL QUDDHOSE, J.
ab/nl
CMA No. 2558 of 2016
and CMP No.18277 of 2016
and Cross Objection No.2 of 2017
09.09.2021
https://www.mhc.tn.gov.in/judis/
