Madras High Court
United India Insurance Company ... vs J.Deepakaran on 25 February, 2022
C.M.A.No.1657 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.02.2022
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A.No.1657 of 2021
and
C.M.P.No.8805 of 2021
United India Insurance Company Limited,
104-A, Peramanur Main Road,
Peramanur, Salem. ... Appellant/2nd Respondent
Vs.
1.J.Deepakaran
2.P.Suseela Ponnusamy ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicle Act, 1988 against the award and decree dated 22.11.2019
passed in M.C.O.P.No.2156 of 2016 on the file of the Motor Accidents
Claims Tribunal (Special Subordinate Court No.2), Salem.
For Appellant : Mr.M.B.Raghavan
For Respondents : Mr.SP.Yuvaraj
for R1
No appearance for R2
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C.M.A.No.1657 of 2021
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
Challenging the award and decree dated 22.11.2019 passed in
M.C.O.P.No. 2156 of 2016 by the learned Special Judge, Motor Accidents
Claims Tribunal (Special Subordinate Court No.2), Salem, the present
appeal is filed by the Insurance Company.
2.We have heard Mr.M.B.Raghavan, learned counsel for the appellant
and Mr.SP.Yuvaraj learned counsel for the first respondent and also perused
the materials available on record.
3.The brief facts of the case are as follows :
On 16.6.2016 at 9.45 p.m, when the first respondent/claimant was
travelling in a two wheeler bearing Registration No.TN 52 6582, the driver
of the bus bearing Registration No.TN 52 U 4799 came in a rash and
negligent manner and hit against the two wheeler. Due to the impact, the
first respondent sustained fracture and injuries. At the time of accident, the
first respondent was 23 years and an Auto Driver by profession and earning
a sum of Rs.10,000/- per month. In view of the injuries sustained in the
accident, the first respondent prayed for grant of Rs.25,00,000/- as
compensation.
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4.The appellant/Insurance Company filed their counter statement
denying the averments and allegations made in the claim petition and
prayed for dismissal of the appeal.
5. To substantiate the case on the side of the claimant, P.W.1 and
P.W.2 were examined and Ex.P1 to Ex.P10 were produced. The Insurance
Company has not let in any oral or documentary evidence.
6. The claimant examined himself as P.W.1 and narrated the manner
of accident and the nature of injuries sustained by him. He also filed Ex.P1
copy of First Information Report and Ex.P2 copy of rough sketch. Ex.P3
and Ex.P4 copies of Motor Vehicles' inspection reports. Ex.P5 copy of
Final Report.
7.The Tribunal, after considering the oral and documentary evidence,
held that the accident had occurred due to the rash and negligent driving of
driver of bus, and directed the appellant/Insurance Company to pay the
compensation.
8. With regard to quantum, P.W.2 Doctor Senthilkumar deposed that
the injured claimant has suffered 49% of disability. Ex.P10 is the disability
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C.M.A.No.1657 of 2021
certificate. The Tribunal by relying upon the evidence of P.W.2 and Ex.P10,
came to the conclusion that the claimant is entitled for compensation and by
applying multiplier method, awarded a sum of Rs.14,81,760/- towards Loss
of Earning capacity. Thereafter, by awarding amounts under various heads,
the Tribunal awarded a sum of Rs.24,97,391/- as compensation.
9.The learned counsel for the appellant/Insurance Company mainly
contended that the injured claimant is admittedly an Auto driver, but he has
not suffered any permanent and functional disability, hence, it is not a fit
case for applying multiplier method.
10. Per contra, the learned counsel for the first respondent drawn the
attention of this Court to the evidence of P.W.2 extracted in paragraph 8 of
the judgment and contended that the first respondent/claimant has suffered
disability and there is no irregularity in applying the multiplier method to
arrive the Loss of Earning Capacity of the claimant.
11. It is an admitted fact that the injured was 23 years old at the time
of the accident and he was an Auto driver. The Doctor had assessed his
permanent disability at 49%. In the instant case, as rightly pointed out by
the learned counsel for the appellant that the claimant has not suffered any
fracture and functional disability and hence, the multiplier method cannot
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be applied in this case. The Doctor/P.W.2, after examination of the claimant,
issued Ex.P10 certificate to the effect that the injured sustained 49%
disability. Hence, by applying Rs.5,000/- per percentage of disability, we
are awarding Rs.2,45,000/- [5,000 x 49] for Loss of Earning Capacity.
Hence, the sum of Rs. 14,81,760/- awarded by the Tribunal under the head
of Loss of Future Earning Capacity is reduced to Rs.2,45,000/-.
12. In addition to that, the amounts awarded by the Tribunal under the
conventional heads, viz., Rs.2,00,000/- towards Pain and Suffering;
Rs.2,00,000/- towards Loss of Amenities ; Rs.3,67,881 towards Medical
Expenses ; Rs.21,750/- towards Loss of income during treatment period ;
Rs.1,25,000/- towards Future Medical Expenses; Rs.25,000/- towards
Transportation charges; Rs.50,000/- towards Extra Nourishment;
Rs.25,000/- towards Attender Charges; and Rs.1,000/- towards Damages to
clothes are confirmed. In total, the claimant is entitled to Rs.12,60,631/-,
which is rounded off to Rs. 12,60,600/- along with interest at the rate of
7.5% per annum from the date of claim petition till the date of realization.
Thus, the total compensation payable to the claimants is re-calculated and
tabulated below:
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C.M.A.No.1657 of 2021
S. Heads under which the Amount awarded Amount awarded
No. amount is awarded by by the Tribunal in by this Court in
the Tribunal Rs. Rs.
1. Loss of Future Earning 14,81,760 2,45,000
Capacity
2. Loss of Pain and 2,00,000 2,00,000
Suffering
3. Loss of Amenities 2,00,000 2,00,000
4. Medical Expenses 3,67,881 3,67,881
5. Loss of income during 21,750 21,750
treatment period
6. Future Medical 1,25,000 1,25,000
Expenses
7. Transportation Charges 25,000 25,000
8. Extra Nourishment 50,000 50,000
9. Attender Charges 25,000 25,000
10. Damages to clothes 1,000 1,000
Total 24,97,391 12,60,631
(rounded off to
Rs.12,60,600)
13. In view of the above modification, the Civil Miscellaneous
Appeal is partly allowed. The appellant is directed to deposit the above
modified award amount with accrued 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 order to the credit of M.C.O.P.No.2156 of 2016. On
such deposit, the claimant is permitted to withdraw the award amount, less
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the amount already withdrawn, if any, together with accrued interest and
costs. In all other respects, the impugned award of the Tribunal is
confirmed. No costs. Consequently, connected Miscellaneous Petition is
closed.
[M.K.K.S., J.] [V.S.G., J.]
25.02.2022
Index : Yes / No
Speaking order : Yes/No
ms
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C.M.A.No.1657 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
ms
To
1. The Special Subordinate Judge,
Motor Accidents Claims Tribunal
(Special Subordinate Court No.2),
Salem.
2. The Section Officer,
V.R.Section,
High Court, Madras.
C.M.A.No.1657 of 2021
and
C.M.P.No.8805 of 2021
25.02.2022
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