Madras High Court
The Divisional Manager vs Rajaguru on 8 August, 2022
C.M.A.No.3534 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.3534 of 2021
and C.M.P.No.20470 of 2021
The Divisional Manager,
M/s. National Insurance Co. Ltd.,
Jawaharlal Nehru Street,
Pondicheri 605 001. .. Appellant
Vs.
1.Rajaguru
2.Rajesh .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 23.02.2021, made
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C.M.A.No.3534 of 2021
in M.C.O.P. No.694 of 2017, on the file of the Additional Motor Accident
Claims Tribunal, Puducherry.
For Appellant : Mr.J.Michael Visuvasam
For R1 : Mr.T.Anantha Sekar
For R2 : No appearance
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
This Civil Miscellaneous Appeal has been filed by the appellant-
Insurance Company challenging the quantum of compensation granted by the
Tribunal in the judgment and decree dated 23.02.2021, made in M.C.O.P.
No.694 of 2017, on the file of the Additional Motor Accident Claims
Tribunal, Puducherry.
2.The appellant is the 2nd respondent in M.C.O.P. No.694 of 2017, on
the file of the Additional Motor Accident Claims Tribunal, Puducherry. The
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C.M.A.No.3534 of 2021
1st respondent filed the said claim petition, claiming a sum of Rs.40,00,000/-
as compensation for the injuries sustained by him in the accident that took
place on 21.10.2016.
3.According to the 1st respondent, on the date of accident, at about
00.30 hours, when he was traveling in a Innova Car bearing Registration
No.TN-32-T-9999, owned by the 2nd respondent, along Villupuram to
Pondicherry NH 45 Road, near Government Boys Higher Secondary School,
Valavanur, the driver of the said vehicle drove the same in a rash and
negligent manner, dashed on the backside of the bullock cart and capsized the
vehicle. The accident has occurred only due to rash and negligent driving by
driver of the car owned by the 2nd respondent. In the accident, the 1st
respondent sustained grievous injuries and hence, filed the said claim
petition, claiming compensation against the 2nd respondent and appellant, as
owner and insurer of the said vehicle respectively.
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C.M.A.No.3534 of 2021
4.The 2nd respondent, owner of the offending vehicle, remained exparte
before the Tribunal.
5.The appellant, insurer of the vehicle, filed counter statement and
denied all the averments made by the 1st respondent in the claim petition.
According to the appellant-Insurance Company, at the time of accident, the
2nd respondent permitted the driver of the vehicle to drive the same without
possessing valid driving license, permit and insurance and hence, violated the
policy conditions. For such violation of policy conditions, the appellant-
Insurance Company is not liable to indemnify the 2 nd respondent. The 1st
respondent has claimed compensation under permanent disability and loss of
earning, which if awarded, would amount to awarding compensation twice
towards same head. In any event, the total compensation claimed by the 1 st
respondent is excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1,
examined one Chandrasekar, Panchayat Secretary as P.W.2, Dr.Muthaiyan as
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C.M.A.No.3534 of 2021
P.W.3 and marked 17 documents as Exs.P1 to P17. The appellant-Insurance
Company examined one Lio as R.W.1, Dr.Raju as R.W.2, Venkatesan,
Regional Transport Officer as R.W.3 and marked 3 documents as Exs.R1 to
R3. The disability certificate was marked as Court document, Ex.C1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by driver of the vehicle owned by the 2nd respondent and directed the
appellant as insurer of the said vehicle to pay a sum of Rs.61,90,000/- as
compensation to the 1st respondent.
8.Challenging the quantum of compensation granted by the Tribunal in
the award dated 23.02.2021, made in M.C.O.P. No.694 of 2017, 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 treatment record, the Tribunal erred in granting compensation
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C.M.A.No.3534 of 2021
based on the report of the Medical Board. The 100% disability assessed by
Medical Board is not in accordance with the Guidelines issued by the
Government of India, Ministry of Social Justice and Empowerment. The
amounts granted for loss of earning and attendant charges are excessive. The
Tribunal, without any evidence and basis, erroneously granted compensation
for future medical expenses and for transportation. Similarly, the
compensation granted by the Tribunal for pain and sufferings, loss of marital
bliss and loss of expectation of life are unreasonable and unjustified. The
total compensation awarded by the Tribunal is excessive and prayed for
setting aside the award of the Tribunal and allowing the appeal.
9(a). In support of his contentions, the learned counsel appearing for
the appellant relied on the judgment reported in 2001 ACJ 179 [M.S.Grewal
& another Vs. Deep Chand Sood and others] and submitted that judicial
precedents have relevance with regard to principles of law, but the quantum
of compensation granted has to be considered based on the facts and
circumstances of each case. There is no binding precedent for awarding
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C.M.A.No.3534 of 2021
quantum of compensation. The compensation is to be assessed considering
the facts of each case taking into consideration the placement in the society
and financial status of the person.
10.The learned counsel appearing for the 1st respondent made
submissions in support of the award of the Tribunal and further contended
that the 1st respondent had proved that the disability suffered by him is 100%
and P.W.3-Doctor has stated that the 1st respondent has no control over his
normal activities, including passing urine and faeces. The Tribunal,
considering the materials placed before it properly, passed the award
following the judgment of the Hon'ble Apex Court reported in 2020 1
TNMAC SC [Kajal Vs. Jagdish Chand and others] and prayed for dismissal
of the appeal.
11.Though notice has been served on the 2nd respondent and his name
is printed in the cause list, there is no representation for him either in person
or through counsel.
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C.M.A.No.3534 of 2021
12.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the 1st respondent and perused the entire materials
available on record.
13.From the materials on record, it is seen that there is no dispute that
the 1st respondent has suffered 100% disability. He cannot do any work
without assistance of other person. P.W.3 Doctor has deposed based on the
report of the Medical Board to the effect that the 1st respondent was examined
by the Medical Board consisting of specialists in Orthopedic and Neurology.
The Panchayat Secretary, who was examined as P.W.2 also deposed that due
to the disability suffered by the 1st respondent, the Medical Board examined
the 1st respondent in the Court itself as he could not walk. The Tribunal also
recorded that when the 1st respondent came to the Court, he could not stand
and gave evidence by sitting. P.W.3 Doctor was not cross-examined by the
counsel for the appellant. On the other hand, the Court had put a specific
question to P.W.3 Doctor as to whether the 1st respondent can do any one of
the basic necessities of life, especially passing urine and faeces, P.W.3
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C.M.A.No.3534 of 2021
answered that “definitely he cannot do”. P.W.3 also deposed that his motion
has to be removed from his anus by hand by others. There is no contra
evidence to the evidence of P.W.3. The Tribunal, considering the state of the
1st respondent as observed in the open Court as well as the evidence of P.W.3,
has awarded compensation for loss of income by adopting multiplier method
for 100% disability as assessed by the Medical Board. There is no error in the
award of the Tribunal for adopting multiplier method.
14.It is the case of the 1st respondent that he was running a Chicken
Centre & Tiffin Centre and was getting monthly income of Rs.15,000/-. To
prove the avocation, he has produced License issued by the Panchayat and
marked the same as Exs.P5 to P7 and also examined Panchayat Secretary as
P.W.2. The 1st respondent has not produced any material to prove the income
earned by him. The Tribunal, considering the nature of business, fixed the
notional income of the 1st respondent as Rs.10,000/- per month. The accident
is of the year 2016. The notional income fixed by the Tribunal is not
excessive. The 1st respondent was aged 39 years at the time of accident. The
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C.M.A.No.3534 of 2021
Tribunal, taking into consideration the age of the deceased, has granted 40%
enhancement towards future prospects and applied multiplier '15', following
the judgments of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609
(SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others] and 2009
(2) TNMAC 1 SC (Sarla Verma and others vs. Delhi Transport
Corporation and another), awarded a sum of Rs.25,20,000/- (Rs.10,000/- +
4000 [Rs.10,000/- X 40%] X 12 X 15 X 100%) towards loss of income by
adopting multiplier method for 100% disability.
14(i).The 1st respondent has marked the out-patient record as Ex.P4 and
Accident Register as Ex.P9. According to the 1st respondent, he has taken
treatment as in-patient at JIPMER Hospital, Puducherry, from 21.10.2016 to
31.12.2016, for a period of 72 days. The appellant has not disputed that the 1 st
respondent took treatment as in-patient for 72 days in JIPMER Hospital. The
Tribunal has granted a sum of Rs.70,000/- (Rs.500/- x 2 x 70 days) towards
attendant charges during treatment period at the rate of Rs.500/- each per day
for two attenders for the period of 70 days. The said amount granted by the
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C.M.A.No.3534 of 2021
Tribunal is not excessive. In addition to the said amount, the Tribunal
considering the nature of injuries, age, evidence of P.W.3 Doctor and
judgment of the Hon'ble Apex Court reported in 2020 (1) TNMAC SC
(referred to above), granted a sum of Rs.18,00,000/- (Rs.10,000/- X 12 X 15)
for attendant charges at the rate of Rs.5,000/- per month each for two
attenders by applying multiplier '15'. The contention of the learned counsel
appearing for the appellant-Insurance Company that each case has to be
considered on the facts and circumstances of the particular case and judicial
precedents have relevance only with regard to principles of law and quantum
of compensation has to be fixed based on each case, has considerable force
and is acceptable. Considering the facts of the present case, it would be just
and reasonable to grant a sum of Rs.5,000/- per month for attendant charges
to the 1st respondent. The 1st respondent was aged 39 years at the time of
accident and the multiplier applicable is '15'. Hence, the amount of
Rs.18,70,000/- (Rs.18,00,000/- + Rs.70,000/-) awarded by the Tribunal
towards attendant charges is modified and reduced to Rs.9,70,000/-
{Rs.70,000/- + Rs.9,00,000/- [Rs.5,000/- x 12 x 15]}.
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C.M.A.No.3534 of 2021
14(ii).The Tribunal has awarded a sum of Rs.6,00,000/- towards
medical expenses & future medical expenses and Rs.1,50,000/- towards
transportation charges. The 1st respondent has not filed any document to
prove that he spent some amount for medical expenses, he requires future
medical expenses and also for transportation. In view of the same, the
amounts granted by the Tribunal under the above heads are excessive.
Considering the fact that the 1st respondent is bedridden, he may suffer
bedsore and may require some amount for future medical expenses, the
amounts granted by the Tribunal towards medical expenses & future medical
expenses is reduced from Rs.6,00,000/- to Rs.3,00,000/- and the amount
granted towards transportation is reduced from Rs.1,50,000/- to Rs.50,000/-.
Considering the entire facts and circumstances of the case and the nature of
injuries suffered by the 1st respondent, the amount granted by the Tribunal
towards pain and sufferings is reduced from Rs.7,00,000/- to Rs.2,00,000/-.
In view of the compensation being granted by the Tribunal towards loss of
income for 100% disability by adopting multiplier method, the amount
granted for loss of expectation of life is set aside. For the loss of marital bliss
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C.M.A.No.3534 of 2021
suffered by the 1st respondent, the Tribunal has awarded a sum of
Rs.1,50,000/- towards loss of consortium. The amounts awarded by the
Tribunal towards loss of consortium and loss of income for 100% disability
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 awarded Amount Award
by Tribunal awarded by this confirmed or
(Rs) Court (Rs) enhanced or
granted
1. Loss of income for 25,20,000/- 25,20,000/- Confirmed
100% disability
2. Medical expenses & 6,00,000/- 3,00,000/- Reduced
future medical expenses
3. Attendant charges 18,70,000/- 9,70,000/- Reduced
(18,00,000/- + (9,00,000/- +
70,000/-) 70,000/-)
4. Transport charges 1,50,000/- 50,000/- Reduced
5. Pain and sufferings 7,00,000/- 2,00,000/- Reduced
6. Loss of consortium 1,50,000/- 1,50,000/- Confirmed
7. Loss of expectation of 2,00,000/- - Set aside
life
Total 61,90,000/- 41,90,000/- Reduced by
20,00,000/-
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C.M.A.No.3534 of 2021
The Tribunal has granted compensation along with interest at the rate of 5.5%
per annum. Considering the raise in cost of living, the 1st respondent is
entitled to interest at the rate of 7.5% per annum.
15.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.61,90,000/- is reduced to Rs.41,90,000/- together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit. The 1st respondent is not entitled to any interest for the default period
i.e., from 04.01.2019 to 26.08.2019. 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.694 of 2017. On such deposit, the 1st respondent is
permitted to withdraw the award amount, along with interest and costs, after
adjusting the amount, if any, already withdrawn, by filing necessary
applications before the Tribunal. The appellant/Insurance Company is
permitted to withdraw the excess amount lying in the deposit to the credit of
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C.M.A.No.3534 of 2021
M.C.O.P.No.694 of 2017 on the file of the Additional Motor Accident Claims
Tribunal), Puducherry, if the entire award amount determined by the Tribunal
has already been deposited by them. Consequently, connected Miscellaneous
Petition is closed. No costs.
(V.M.V., J) (S.S., J)
08.08.2022
Index : Yes/No
Speaking Order : Yes/No
gsa
To
1.The Judge,
Additional Motor Accident Claims Tribunal,
Pondicherry.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.No.3534 of 2021
V.M.VELUMANI, J.
and
S.SOUNTHAR,J.
(gsa)
C.M.A. No.3534 of 2021
and C.M.P.No.20470 of 2021
08.08.2022
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