United India Insurance Company ... vs K.Jesammal ..1St
2022 Latest Caselaw 4 Mad

                                                                            C.M.A(MD)No.326 of 2020


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                  Judgment Reserved on              Judgment Pronounced on
                                       25.03.2022                          27.04.2022

                                                         CORAM:

                          THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

                                               C.M.A(MD)No.326 of 2020
                                                        and
                                               C.M.P(MD)No.4247 of 2020


                     United India Insurance Company Limited,
                     No.3-E, Balavinayagar Kovil Street,
                     Thoothukudi.                        .. Appellant / 2nd Respondent

                                                         Vs.
                     1.K.Jesammal                              ..1st Respondent / Claim Petitioner

                     2.P.Lilly Pushpam                         .. 2nd Respondent /1st Respondent

                     [In respect of R2, Notice dispensed with, vide court order dated
                     03.01.2022 by SAIJ]

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the

                     Motor Vehicles Act, 1988, against the Decree and Judgment, dated

                     31.01.2019 made in M.C.O.P.No.176 of 2016, on the file of the Motor

                     Accidents Claims Tribunal/Chief Judicial Magistrate, Thoothukudi.



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                                                                                C.M.A(MD)No.326 of 2020


                                        For Appellant       : Mr.A.Ilango
                                        For R1              : Mr.S.Siva Thilakar


                                                         JUDGMENT

The insurance company is the appellant herein. Challenging the

quantum of compensation granted in M.C.O.P.No.176 of 2016, the

insurance company has filed this appeal.

2. The injured is the claim petitioner filed the above claim petition

that while he was working as Operation Theatre Assistant in St.Hearts

Hospital. On the fateful day [05.03.2016] at around 7.30 a.m., she was

walking on the road near St.Hearts Hospital from south to north on the

left hand side of the road and thereafter while she was standing on the

northern side near the St.Hearts Hospital gate, at the time, the mini bus

bearing Registration No.TN37 C 5542 came from the west towards east

in a rash and negligent manner and dashed against her due to which she

sustained injury.

3. The first respondent has not adduced any contra evidence. PW1

being the injured witness is competent to speak about the manner of the

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accident. The contents of Ex.P1-F.I.R., and also Ex.P3-Motor Vehicle

Inspector's report goes to show that the accident do not happen due to the

mechanical defect but due to the rash and negligence of the driver of the

mini bus as could be seen from Ex.P1-F.I.R., Ex.P6-Charge Sheet and

Ex.P5-rough sketch. It is also to be noted that the driver has pleaded

guilty and paid fine as per the Ex.P7 judgment of the criminal Court.

4.After considering the oral and documentary evidence, the Trial

Court has rightly come to the conclusion that the accident has taken place

due to the rash and negligent driving of the driver of the mini bus and

hence such a finding is hereby confirmed.

5.On the point of quantum of compensation rival submissions are

heard.

6. At the time of the accident, PW1-injured is 48 years old and

working as Assistant in Operation Theatre and was drawing Rs.12,000/-.

Ex.P3-Accident Report clearly indicates the age of the injured at 48 and

also filed Ex.P14-salary certificate issued by the hospital. Accordingly,

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the tribunal has rightly come to the conclusion that in view of the various

injury sustained by the petitioner, she had suffered physically permanent

disability affecting her earning capacity. Hence, having satisfied with the

ratio laid down in the Rajkumar's case, the tribunal has rightly held that

multiplier method has to be adopted since PW1 could not do her job as

she was used to do before the accident and earning capacity was also

reduced.

7. The Medical Board which examined PW1 has fixed the

disability 90% after perusing Ex.P-9-discharge summary. I find that the

medical board has taken all the injuries into consideration and fixed the

disability at 90% and hence I find that the earning capacity of PW1 is

totally reduced by 90% and hence, it is a fit case for granting future

prospects also. Accordingly, notional monthly income arrived at Rs.

9850+30% = Rs.9850/- + Rs.2955/- = Rs.12805/- and the Tribunal has

rightly adopted the multiplier method as per the decision in Sarla Verma

and others vs. Delhi Transport Corporation and another reported

in (2009) 6 SCC 121 and the same need not be disturbed. The loss of

income towards 'partial permanent disability' has assessed by the

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Tribunal as Rs.12805 x 12 x13 x 90% = Rs.17,97,822/- is reasonable.

Hence, the award under the head 'partial permanent disability' is hereby

confirmed. The award of Rs.2,70,000/- for the permanent disability

granted by the tribunal hereby stands vacated. There cannot be any

double compensation for the very same injury. From Ex.P9-discharge

summary she was in the hospital between 05.03.2016 to 16.04.2016 and

from 01.08.2016 to 16.08.2016. The award of Rs.1,00,000/- granted by

the tribunal towards future earnings also stands vacated. Further, the

claimant is entitled to Rs.15,000/- towards transportation, Rs.15,000/- for

nutrition and extra nourishment and Rs.15,000/- towards attender

charges. The compenstation awarded under the head 'for pain and

sufferings' is reduced from Rs.1,00,000/- to Rs.50,000/-. In total, the

claimant is entitled to a sum of Rs.18,92,822/- with interest at the rate

of 7.5% per annum.

8. In fine,

(i) this Civil Miscellaneous Appeal stands allowed in part by

reducing the compensation from Rs.23,67,822/- to Rs.18,92,822/- with

interest at the rate of 7.5% per annum, from the date of petition till the

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date of realisation. No Costs. Consequently, connected miscellaneous

petition is closed.

(ii) the appellant/insurance company is directed to deposit the

modified award amount to the credit of M.C.O.P.No. 176 of 2016 on the

file of the Motor Accidents Claims Tribunal/Chief Judicial Magistrate,

Thoothukudi, within a period of eight weeks from the date of receipt of a

copy of this order, less the amount, if any already deposited.

(iii) On such deposit being made, the claimant is permitted to

withdraw the modified award amount with proportionate accrued interest

and costs, less the award amount, if any already withdrawn, by filing

necessary application before the Tribunal.

(iv) The Tribunal is directed to refund the excess award

amount, if any, with accrued interest to the appellant/insurance

company.

27.04.2022

Index:Yes/No Internet:Yes/No PJL

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To

1.The Chief Judicial Magistrate/ Motor Accidents Claims Tribunal, Thoothukudi.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

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RMT.TEEKAA RAMAN.,J.

PJL

PRE-DELIVERY JUDGMENT MADE IN C.M.A(MD)No.326 of 2020

27.04.2022

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