Madras High Court
Cholamandalam M.S.General ... vs Manthiram ...1St on 2 February, 2022
C.M.A.(MD).Nos.967 of 2014 & 872 and 873 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.02.2022
CORAM:
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD).No.967 of 2014
and
C.M.A.(MD).Nos.872 and 873 of 2021
C.M.A(MD)No.967 of 2014
Cholamandalam M.S.General Insurance Co.Ltd.,
“Dare House”,
2nd Floor, NSC Bose Road,
Chennai 600 001.
Rep. by its Branch Manager. ...Appellant/2nd Respondent
Vs.
1.Manthiram ...1st Respondent/Petitioner
2.Saravana Perumal ...2ndRespondent/1st Respondent
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the fair and decreetal order dated
20.01.2014 made in MCOP.No.519 of 2013 on the file of the Motor
Accidents Claims Tribnal/Special Sub Court, Tirunelveli and allow this
Civil Miscellaneous Appeal.
For Appellant :Mr.S.Srinivasa Raghavan
For R1 :No Appearance
For R2 :Mr.T.Selvakumaran
CMA(MD)No.872 of 2021
Manthiram ...Appellant/Petitioner
Vs.
1.Saravana Perumal
2.Cholamandalam M.S.General Insurance Co.Ltd.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.967 of 2014 & 872 and 873 of 2021
Through its Branch Manager,
Second Floor ''Dare House”,
No.2, NSC Bose Road,
Chennai - 600 001. ...Respondents/Respondents
PRAYER in CMA(MD)No.872 of 2021: Civil Miscellaneous Appeal
filed to enhance the award amount in M.C.O.P.No.519 of 2013 on the file
of the Motor Accident Claims Tribunal (Special Sub Court), Tirunelveli,
dated 20.01.2014.
CMA(MD)No.873 of 2021
Ganesan ...Appellant/Petitioner
Vs.
1.Saravana Perumal
2.Cholamandalam M.S.General Insurance Co.Ltd.
Through its Branch Manager,
Second Floor ''Dare House”,
No.2, NSC Bose Road,
Chennai - 600 001. ...Respondents/Respondents
PRAYER in CMA(MD)No.873 of 2021: Civil Miscellaneous Appeal
filed to enhance the award amount in M.C.O.P.No.520 of 2013 on the file
of the Motor Accident Claims Tribunal (Special Sub Court), Tirunelveli,
dated 20.01.2014.
For Appellants :Mr.T.Selvakumaran in both CMAs
For Respondents : Mr.S.Srinivasa Ragavan for R2
No appearance for R1 in both CMAs
COMMON JUDGMENT
C.M.A.(MD)No.967 has been filed by the appellant Insurance
Company to set aside the fair and decreetal order dated 20.01.2014 made
in M.C.O.P.No.519 of 2013, on the file of the Motor Accident Claims
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.967 of 2014 & 872 and 873 of 2021
Tribunal/Special Sub Court, Tirunelveli. C.M.A.(MD)Nos.872 and 873
of 2021 have been filed by the claimants to enhance the award amount in
MCOP.Nos.519 and 520 of 2013 granted by the Motor Accident Claims
Tribunal/Special Sub Court, Tirunelveli.
2.It is a case of accident, which took place on 30.04.2013 at about
6.30 a.m., while the petitioners were travelling in a TVS-XL-Super
bearing Registration No.TN-69-S-5470 from Alwarthirunagari to
Udangudi and when they reaching near Thirukaloor Perumal Temple
from east to vest, at that time, a Tipper Lorry bearing Registration
No.TN-69-AE-1200, belonging to the first respondent, insured with the
second respondent, came from behind of the Temple in a rash and
negligent manner suddenly entered into the main road and hit the
motorcycle. As a result of which, the petitioners were thrown out of the
motorcycle and sustained injuries and fractures all over their body.
Immediately they were taken to TVMC Hospitals at Palayamkottai and
admitted as inpatient from 30.04.2013 to 15 days.
3.The claimants have filed a petition in M.C.O.P.Nos.519 and 520
of 2013 on the file of the Motor Accident Claims Tribunal/Special Sub
Court, Tirunelveli, seeking compensation.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.967 of 2014 & 872 and 873 of 2021
4.The Motor Accidents Claims Tribunal/Special Sub Court,
Tirunelveli, after perusing the materials on record, awarded a sum of
Rs.6,78,330/-, together with interest at the rate of 9% per annum, as
compensation to the claimant in MCOP.No.519 of 2013. In respect of
MCOP.No.520/2013, the Tribunal, after analyzing the evidence on
record, awarded a sum of Rs.2,13,500/- to the claimant.
5.The learned counsel for the appellant/Insurance Company in
C.M.A.(MD)No.967 of 2014 contended that the negligence is only on the
part of the rider of the two wheeler, bearing Registration No.TN-69-
S-5470 and the evidence of RW.1 would clear that there was no
negligence on the part of the driver of the lorry. He further contended that
the Tribunal awarded Rs.4,15,800/- towards partial disability of 55% is
excessive and also the interest awarded at the rate of 9% is also high.
6.The contention of the appellant Insurance Company in
C.M.A.No.967 of 2014 that the negligence is only on the part of the
claimants. But, a common judgment has passed in the M.C.O.P.Nos.519
and 520 of 2013 arising out of same accident and in that, the
appellant/Insurance Company have not agitated the negligence in one
MCOP viz., M.C.O.P..No.520 of 2013.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.967 of 2014 & 872 and 873 of 2021
7.As far as the quantum of compensation is concerned, the
appellant contended that in MCOP.No.519 of 2013, the functional
disability was not proved by the claimant. So, the multiplier method
cannot be adopted. But the claimant was working as a 'Melakarar' and
proof has also been filed by the claimant. Dr.Ramaguru (PW3) had
assessed the partial permanent disability as 63% and in his evidence, he
stated that the claimant could not sit or stand due to the fracture in the
right leg. The Tribunal fixed the same as 55% and awarded Rs.4,15,800/-
towards disability. But the claimant sustained only fracture no
amputation. Even in case of amputation only 55% disability is given.
Hence, this Court reduced the same as 40%. Eventhough no income
proved by the claimant, the Tribunal fixed Rs.4,500/- as notional income,
which is reasonable. Therefore, loss of income arrived at Rs.4,500/- x 12
x 40/100 x14 = Rs.3,02,400/-. But the Tribunal granted another loss of
income for 6 months as Rs.27,000/- is deducted from the compensation
award and the interest awarded by the Tribunal is reduced from 9% to
7.5% p.a. from the date of claim petition till the date of realization.
8.Accordingly, the claimant is entitled for compensation as
follows:
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.967 of 2014 & 872 and 873 of 2021
S. Head Amount granted by
No. this Court
1. Partial Permanent disability Rs. 3,02,400/-
2. Transportation Rs. 5,000/-
2. Extra nourishment Rs. 10,000/-
3. Attendant Charges Rs. 5,000/-
Medical Bills Rs. 1,15,530/-
4. Pain and sufferings Rs. 50,000/-
Loss of amenities Rs. 50,000/-
Tot Rs. 5,37,930/-
al
Thus, the compensation awarded by the Tribunal is reduced from
Rs.6,78,330/- to Rs.5,37,930/- which would carry interest at the rate of
7.5% per annum.
9.In C.M.A(MD)No.873 of 2021, the learned counsel for the
appellant has contended that at the time of accident, the appellant was
working as a musician and earning Rs.10,000/- per month. But the
appellant did not produce any document to prove his income. The
Tribunal fixed 30% of disability and awarded Rs.90,000/- towards
disability and without any document to prove his income, the Tribunal
fixed Rs.4,500/- as monthly income and awarded Rs.13,500/- (Rs.4,500/-
x 3), which are reasonable. Hence, the tribunal has rightly fixed the
monthly income of the appellant and the same needs no interference.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.967 of 2014 & 872 and 873 of 2021
Therefore, C.M.A(MD)No.873 of 2021 is liable to be dismissed and
accordingly, dismissed.
10.The Civil Miscellaneous Appeal in C.M.A(MD)No.967 of 2014
is partly allowed. The quantum of compensation awarded by the Tribunal
is reduced from Rs.6,78,330/- to Rs.5,37,930/- which would carry
interest at the rate of 7.5% per annum. It is submitted that the appellant/
Insurance Company had already deposited the entire award amount with
accrued interest and therefore, the appellant is permitted to withdraw the
excess amount with proportionate interest. The claimant is also permitted
to withdraw the entire award amount with proportionate interests and
costs, by filing necessary application.
11. In sofar as the Civil Miscellaneous Appeal in C.M.A(MD)No.
872 of 2014 is concerned, this Court finds no justification to interfere
with the award of the Tribunal in all respects. Hence, this Civil
Miscellaneous Appeal stands dismissed. No costs.
02.02.2022
Index : Yes/No
Internet : Yes/No
vsd
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.967 of 2014 & 872 and 873 of 2021
S.ANANTHI, J.
vsd
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
The Motor Accidents Claims Tribnal/Special Sub Court,
Tirunelveli
C.M.A.(MD).Nos.967 of 2014 & 872 and 873 of 2021
02.02.2022
https://www.mhc.tn.gov.in/judis
