Madras High Court
M/S.United India Insurance Co. ... vs Thirulockkumar on 28 January, 2022
CMA Nos.3245 and 2762 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.M.A.Nos.3245 and 2762 of 2021
and CMP.No.18645 of 2021
C.M.A.No.3245 of 2021
M/s.United India Insurance Co. Ltd.,
No.135, Silingi Building”,
Greams Road, Chennai – 600 006. ...Appellant
Vs.
1.Thirulockkumar
2.G.Vigneswaran ...Respondents
Common Prayer: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicles Act, 1988, against the award and decree dated 21.12.2020
made in M.C.O.P.No.4587 of 2016 on the file of the Motor Accidents
Claims Tribunal, III Court of Small Causes, Chennai.
https://www.mhc.tn.gov.in/judis
CMA Nos.3245 and 2762 of 2021
For Appellant : Mr.S.Arun Kumar
For Respondents : Mr.K.Varadhakamaraj for R1
C.M.A.No.2762 of 2021
Thirulockkumar ...Appellant
Vs.
1.G.Vigneswaran
2.United India Insurance Co. Ltd.
No.135, Silingi Building”,
Greams Road, Chennai – 600 006. … Respondents
For Appellant : Mr.K.Varadhakamaraj
For Respondents : Mr.S.Arun Kumar for R2
COMMON JUDGMENT
Both these appeals are against the same award. CMA.No.3245 of
2021 has been filed by the Insurance company challenging the grant of a
sum of Rs.20,77,400/- as compensation for the injuries suffered by
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CMA Nos.3245 and 2762 of 2021
Thirulockkumar in a road accident that occurred on 27.04.2016. C.M.A
No:2762 of 2021 has been filed by the victim seeking enhancement.
2.Thirulockkumar lodged the claim contending that he suffered
grievous injuries in a road accident that occurred on 27.04.2016 when the
motorcycle bearing Registration No.TN-04-AQ-2588 came from behind and
hit against the motorcycle bearing Registration No.TN-04-S-8793. As a
result of the impact, he was thrown of the vehicle and sustained grievous
injuries including severe head injuries.
3.Contending that he was carrying on business in furniture and
because of the accident, he could not continue the business and he has lost
his entire income as well as his earning capacity the claimant sought for a
compensation of Rs.25,00,000/-. The claim was resisted by the Insurance
Company contending that the accident did not occur in the manner
suggested by the claimant. The Insurance Company had obtained
permission under Section 170 on the Motor Vehicles Act to raise defences
that are open to the insured. The claim that the injured was earning a sum of
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CMA Nos.3245 and 2762 of 2021
Rs.1,00,000/- per month was totally denied. Other formal defences were
also raised regarding license and wearing of helmet, etc.
4.Before the Tribunal, the claimant was examined as PW1 and Exs.P1
to P13 were marked. The Insurance Company did not let in any evidence.
The disability certificate issued by the Medical Board of the Government
Kilpauk Medical College Hospital was marked as Ex.C1.
5.On a consideration of the evidence, the Tribunal concluded that the
accident occurred due to the rash and negligent driving by rider of the
motorcycle bearing Registration No.TN-04-AQ-2588 which was insured
with the appellant Insurance company. To come to such a conclusion, the
Tribunal relied upon the FIR and the charge sheet which were filed against
the rider of the motorcycle. The Tribunal also took note of the fact that the
Insurance company has not let in any evidence in support of its claim that
the driver of the motorcycle was not having a valid driving license on the
date of the accident.
6.On the quantum, the Tribunal found that the claimant has suffered
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CMA Nos.3245 and 2762 of 2021
50% disability which is classified as a permanent disability by the Medical
Board. The Tribunal also took note of the fact that the Medical Board had
stated that the injured claimant had hemi paresis on the right side. The
Tribunal therefore taking into consideration the nature of the disability
particularly right hemi paresis concluded that the disability is permanent as
well as functional. Since there was no evidence to support the claim of the
injured that he was earning a sum of Rs.1,00,000/- per month the Tribunal
assumed his income at Rs.15,000/- per month and added 25% towards
future prospects and awarded a sum of Rs.14,62,500/- towards loss of
earning capacity. The Tribunal also awarded a sum of Rs.50,000/- towards
pain and suffering, Rs.50,000/- towards extra nourishment, Rs.50,000/-
towards loss of amenities, Rs.1,000/- towards damages to clothing,
Rs.1,800/- towards attender charges and Rs.4,62,061/- towards medical
expenses. Thus, the total compensation which was arrived at Rs.20,77,361/-
was rounded off to Rs.20,77,400/-.
7.I have heard Mr.Arunkumar, learned counsel appearing for the
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CMA Nos.3245 and 2762 of 2021
appellant Insurance Company and Mr.Varadhakamaraj, learned counsel
appearing for the respondent/claimant.
8.Mr.Arunkumar, learned counsel appearing for the appellant
Insurance Company would contend that though the Medical Board has
classified the disability as 50% permanent it has not said that it is a
functional disability. Therefore, the Tribunal was not right in adopting
multiplier method. Learned counsel would also fault the Tribunal for
having adopted Rs.15,000/- per month as income in the absence of any
evidence. Considering the date of the accident i.e. on 27.04.2016, the
Tribunal must have fixed a lower sum as income. Learned counsel would
also contend that the addition of 15% towards future prospects is also
excessive.
9.Contending contra, Mr.Varadhakamaraj, learned counsel appearing
for the respondent/claimant would submit that the claimant had suffered
hemi paresis which has led to his right limbs becoming inactive. Therefore,
it is a case of loss of earning capacity for life. Therefore, according to the
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CMA Nos.3245 and 2762 of 2021
learned counsel adoption 50% of the permanent disability as functional
disability by the Tribunal was justified. He would also submit that
assumption of monthly income at Rs.15,000/- by the Tribunal is very
reasonable considering the fact that the accident occurred in the year 2016.
He would go one step further and contend that the Tribunal must have
accepted the oral evidence of the claimant in the absence of any contra
evidence and fixed the monthly income at Rs.25,000/-. He would also point
out that the claimant has preferred the appeal in CMA.No.2762 of 2021,
seeking enhancement.
10.I have considered the submissions of the counsel for the parties.
11.The fact that the claimant had suffered head injury as a result of
which his right limbs has become inactive is established beyond doubt by
the discharge summary as well as the Report of the Medical Board. While
in the discharge summary, it is stated that the claimant has suffered right
hemi plegia, in the disability certificate issued by the Medical Board it is
stated that the claimant has suffered right hemi paresis which is synonym of
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CMA Nos.3245 and 2762 of 2021
hemi plegia. Hemi plegia results in the limbs on one side of the body
becoming inactive. Therefore, the claimant would have to limp while
walking and his day-to-day activities would also be severely restricted.
Therefore, I do not think that the Tribunal could be faulted for taking the
50% disability assessed by the Medical Board as a functional whole body
disability and awarding compensation applying multiplier method instead of
percentage method. As far as income that is adopted, though Mr.Arunkumar
would term it as very high, I am unable to accept the contention of the
learned counsel.
12.If we assess the wages taking the wages that is paid to NMR
workers of PWD as the basis, the same was around Rs.600/- per day and
leaving some allowance for holidays a NMR worker himself would have
easily earned Rs.15,000/- per month. The claimant has pleaded that he was
doing business in furniture and he has produced the license also. Therefore,
I do not think the Tribunal could be faulted for fixing a sum of Rs.15,000/-
as monthly income and adding 25% towards future prospects. Thus, I do
not see any reason to interfere with the award on the head loss of earning
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CMA Nos.3245 and 2762 of 2021
capacity. As far as other heads of conventional damages, I find them to be
reasonable and medical expenses have been awarded on the basis of the
bills. Therefore, I do not find any reason to interfere with the award as the
award on the whole looks very reasonable.
13. In view of the above, both these appeals are dismissed and the
award of the Tribunal is confirmed. There shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
28.01.2022
Index: No
Internet: Yes
Speaking Order
pam
To
1.The Motor Accident Claims Tribunal,
III Court of Small Causes,
Chennai.
2.The Section Officer,
V.R.Section, High Court of Madras.
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CMA Nos.3245 and 2762 of 2021
R.SUBRAMANIAN, J.
pam
C.M.A.Nos.3245 and 2762 of 2021
28.01.2022
https://www.mhc.tn.gov.in/judis
