Madras High Court
M/S.National Insurance Company ... vs D.Manoharan on 7 February, 2022
C.M.A.No.979 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.979 of 2020
and
C.M.P.Nos.6145 of 2020 and 16609 of 2021
M/s.National Insurance Company Ltd.,
'Regina Mansion'
No.46, Moore Street,
Parrys,
Chennai – 600 001. ... Appellant
Vs.
1.D.Manoharan
2.S.Anand Moopanar
... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 to set aside the Decree and Judgment dated 22.07.2019 passed
in MCOP No.2740 of 2017 by the Motor Accident Claims Tribunal, (Special Sub-
Judge – II, Court of Small Causes), at Chennai.
1/9
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C.M.A.No.979 of 2020
For Appellant : Mr.J.Michael Visuvasam
For Respondents : Mr.Balaji Prasad for R1
No appearance for R2
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
This appeal is filed by the Insurance Company questioning the award
passed by the Motor Accident Claims Tribunal, (Special Sub-Judge – II, Court of
Small Causes), Chennai, dated 22.07.2019 in M.C.O.P.No.2740 of 2017.
2.The first respondent herein filed the claim petition seeking compensation
of Rs.1,50,00,000/- for the injuries suffered by him in a road accident which had
taken place on 13.03.2017 at 22.45 hours. According to the claimant, on the
faithful day, he was riding a motorcycle bearing Reg.No.TN-22-CA-8106 from
north to south direction near Sivan Temple at Polichalur. At that time, a Car
bearing Reg.No.TN-18-Q-6809 driven by its driver in a rash and negligent
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C.M.A.No.979 of 2020
manner, rammed his two-wheeler. In the accident, he suffered injuries and he was
taken to a hospital, where he took treatment for more than 100 days on five
different occasions. It is also stated that he underwent one surgery during the
treatment period.
3.The stand of the appellant before the Tribunal was that the offending car
was driven by a person, who was in a drunken mood and hence, the liability
cannot be fastened on the Insurance Company. That apart, they have also stated
that the claim amount is on the higher side.
4.The parties had adduced oral and documentary evidence before the
Tribunal. On appreciation of evidence adduced, the Tribunal came to the
conclusion that the accident had taken place due to the negligence of the driver of
the car and it was also found that he had consumed alcohol at that time. Hence,
while awarding compensation, the Tribunal has directed the Insurance Company
to pay the award amount and thereafter, recover the same from the owner of the
vehicle, taking note of the fact that the claimant is the third party.
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C.M.A.No.979 of 2020
5.The learned counsel appearing for the appellant Mr.J.Michael Visuvasam
mainly contended that the claimant has categorically admitted in his evidence that
he continues with the same employment and there is no deduction of salary.
Hence, applying multiplier method and awarding a sum of Rs.1,14,10,144/-
cannot be sustained. In this regard, the learned counsel has also produced a
decision in the case of Rajkumar vs. Ajaykumar reported in 2011 ACJ 1.
6.Per contra, the learned counsel appearing for the first
respondent/claimant Mr.Balaji Prasad placing reliance on the decisions of the
Hon'ble Apex Court in the case of Dinesh Singh vs. Bajaj Allianz General
Insurance reported in 2014 ACJ 1412, Pappu Deo Yadav vs. Naresh Kumar
and others reported in 2020(2) TN MAC 536 (SC), Sandeep Khanuja vs. Atul
Dande & another reported in 2017 (1) TN MAC 410 (SC) and I.Pavithra vs.
R.Alan Joy reported in 2018 (2) TN MAC 660 (DB) argued that even though
the injured claimant continues with the employment, he is entitled the amount
under the head of loss of income.
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C.M.A.No.979 of 2020
7. This Court carefully considered the submissions of the learned counsel
for the appellant/Insurance Company and the learned counsel appearing for the
first respondent/claimant and perused the materials available on record.
8. We have gone through the decisions cited by the learned counsel
appearing for the first respondent/claimant. In those cases, the injured claimant
either resigned the job or removed from the employment or there was reduction of
salary on account of the accident, hence, in our considered view, the decisions are
not helpful to the claimant.
9.In the evidence, P.W.1 has categorically admitted that he continues with
the employment after the accident. Furthermore, no material was produced before
the Tribunal to show any reduction of income after the accident. Hence, in our
considered view, the award amount of Rs.1,14,10,144/- under the head of loss of
earning capacity cannot be sustained. It is also brought to the notice of this Court
that in the case of injury, Rs.5,000/- per percentage is awarded, wherever, it is
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C.M.A.No.979 of 2020
found that multiplier method could not be applied. Ex.C.1 Disability Certificate
reveals that the claimant suffered 90% disability. Hence, Rs.4,50,000/- is
awarded under the head of Disability by applying Rs.5,000/- per percentage.
Documents annexed in the booklet shows that the injuries sustained on the right
leg are not healed and he is still taking treatment.
10.It is the submission of the learned counsel appearing for the claimant
that although the injured continues with the employment, he is taking continuous
treatment and he is spending more amount towards medical expenses. It is also
stated that without the help of the attendant, normal work could not be carried out
by the injured. In support of his submission, documents have been enclosed in
the booklet.
11.The learned counsel appearing for the appellant/Insurance Company has
not seriously disputed the statement made by the learned counsel appearing for
the first respondent/claimant.
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C.M.A.No.979 of 2020
12.In the light of the above, we modify the award under the other heads as
follows:-
Heads Amount Re-quantified Status
awarded by the Amount by this
Tribunal Court
Disability 5000 x 90 Nil 4,50,000/- granted
Loss of Earning Power 1,14,10,144/- Nil set aside
Pain and Sufferings 50,000/- 5,00,000/- enhanced
Transportation 10,000/- 3,00,000/- enhanced
Extra nourishment 25,000/- 1,00,000/- enhanced
Damage of Cloth & Articles 1,000/- 5,000/- enhanced
Attendant Charges 10,000/- 5,00,000/- enhanced
Medical Expenses 2,09,193/- 2,09,193/- confirmed
Loss of Amenities 10,000/- 10,00,000/- enhanced
Future Medical Expenses Nil 3,00,000/- granted
Total 1,17,25,337/- 33,64,193/- reduced
Rounded off 1,17,25,400/- 33,64,000/- 83,61,400/-
is reduced
13.In such view of the matter, this Civil Miscellaneous Appeal is partly
allowed. The order of pay and recovery and rate of the interest 7.5% per annum
as ordered by the Tribunal are confirmed. It is represented that 50% of the award
amount has already been deposited to the credit of the claim petition. Hence, the
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C.M.A.No.979 of 2020
first respondent/claimant is permitted to withdraw the modified award amount
less the amount already withdrawn, if any, together with proportionate interest
and costs. The excess amount, if any, shall be returned to the appellant/Insurance
Company. The appellant/Insurance Company is at liberty to recover the award
amount from the owner of the vehicle in accordance with law. No costs.
Consequently, connected miscellaneous petitions are closed.
[M.K.K.S.,J.] [V.S.G.,J.]
07.02.2022
skn
Index : Yes/No
Speaking Order :Yes/No
To
1.The Motor Accident Claims Tribunal,
(Special Sub-Judge – II, Court of Small Causes),
Chennai.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.979 of 2020
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
skn
JUDGMENT MADE IN
C.M.A.No.979 of 2020
and
C.M.P.Nos.6145 of 2020 and 16609 of 2021
07.02.2022
https://www.mhc.tn.gov.in/judis
