Madras High Court

Icici Lombard Insurance Company ... vs Arvind ... Claimant / 1St on 1 July, 2022

                                                                                    C.M.A.No.1035 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 01.07.2022

                                                         CORAM

                                     THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                                C.M.A.No.1035 of 2022

                     ICICI Lombard Insurance Company Ltd.,
                     II & III Floor
                     Nungambakkam High Road
                     Chottabhai Centre
                     Chennai – 600 034.               ... 2nd Respondent /Appellant

                                                          Vs

                     1.Arvind                              ... claimant / 1st Respondent

                     2.P.Pothumani                         ... 1st Respondent/2nd Respondent

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, 1989 (Act IV of 1939) against the order dated 09.11.2021 in
                     M.C.O.P.No.878 of 2019 on the file of the Motor Accident Claims Tribunal
                     (Special Subordinate Judge) at Dharmapuri.

                                    For Appellant    :     Ms.R.Sree Vidhya
                                    For Respondent-1 :     Mr.D.Ramesh Kumar
                                    For Respondent-2 :     Not ready in notice



                     1/11



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                                                                                       C.M.A.No.1035 of 2022


                                                        JUDGEMENT

The Insurance Company has challenged the award passed by the

Motor Accident Claims Tribunal, Special Subordinate Judge (MACT),

Dharmapuri in M.C.O.P.No.878 of 2019 on the ground that the

compensation for disability has been arrived at by the Tribunal by adopting

a multiplier method, when the disability is not a permanent one and has not

caused any functional loss or a loss of earning capacity to the first

respondent/claimant.

2. In order to appreciate the arguments, it is necessary to briefly

relate the facts of the case.

One Aravind/first respondent herein/claimant, who is a lorry driver

by profession and aged about 24 years, earning a sum of Rs.30,000/- has

filed the above claim petition stating that he had suffered injuries in a road

accident involving the vehicle belonging to the second respondent herein

and insured with the appellant-Insurance Company. It is his contention that

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on 07.08.2019, he was travelling in his two wheeler, bearing Registration

No.TN-29-BJ-8195 on the Dharmapuri to Salem National Highways

keeping to the extreme left of the road. At about 09.00 p.m, the second

respondent's lorry, bearing Registration No.TN-88-D-9392 was proceeding

in front of him, the vehicle was being driven in a rash and negligent manner

and at a great speed. The driver of the lorry all of a sudden had applied the

brakes, as a result of which, the first respondent had hit the rear of the lorry

and sustained facial injuries. Therefore, he had filed the claim petition,

seeking a compensation of a sum of Rs.10,00,000/-.

3. The first respondent owner of the lorry had not contested the

claim and was set ex-parte. The Insurance Company had filed a counter

inter-alia contending that the accident had occurred only on account of the

negligence of the first respondent. It is their contention that on the said

date, it was the first respondent, who had invited the accident by not

maintaining the distance between the two vehicles. They had further

contended that the Police have closed the case as a mistake of fact after due

https://www.mhc.tn.gov.in/judis C.M.A.No.1035 of 2022

investigation. Therefore, they contented that they are not liable to

compensate the first respondent. They had also questioned the

compensation sought for by the first respondent/claimant.

4. The Tribunal below, after hearing the parties and considering

the evidence, came to the conclusion that it is only the second respondent

herein, as the owner of the lorry, who is vicariously liable to compensate the

claimant once the negligence is found on his driver. The appellant as the

insurer was therefore liable to pay the compensation. With reference to the

compensation, the Tribunal has accepted the disability certificate issued by

the Medical Board, which assessed the disability at 11%. The

apportionment of this was 5% towards facial disfigurement and 6% towards

the dental disability. The Tribunal has adopted the multiplier method and

arrived at a just compensation of Rs.1,42,560/- and a total compensation of

Rs.2,77,304/-.

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5. The Insurance Company being aggrieved by the calculation of

compensation on a multiplier method for the disability is before this Court.

6. Heard the learned on either side and perused the materials

available on record.

7. A perusal of the original claim petition would indicate that the

claimant has kept the details regarding the injuries sustained by him which

was to be filled in Column No.11 blank. In Column No.23, the claimant has

stated that he has sustained injuries to his fore head, nose, mouth and teeth.

He has not mentioned that he has suffered any fracture or loss of teeth. The

Tribunal has relied upon the Ex.C1-Disability Certificate issued by the

Medical board and Ex.P2-Discharge summary of the Dharan hospital,

Salem and Ex.P3-Wound Certificate. The Tribunal has not discussed as to

how the disability has curtailed the functioning of the first respondent-

claimant in his day to day activities. The Tribunal has simply taken the

assessment and adopted a multiplier method. In the judgment of the

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Hon'ble Supreme Court in the case of [Sarala Varma and Others vs.

Delhi Transport Corporation and another] reported in (2009) 6 SCC 121,

the assessment of disability and the calculation of the compensation for the

same has been discussed, in which, the Hon'ble Supreme Court has held that

if the disability does not impair the day-to-day functioning of a person as

well as cause a hindrance to his avocation, then in such cases, the

compensation has to be assessed only on percentage basis.

8. The learned counsel for the Insurance Company would state

that the disability assessed by the Medical Board is on the higher side.

However, taking into account the age of the claimant and the fact that the

injuries were on his face, which would cause a slight disfigurement, the

percentage as fixed by the Medical Board at 11% is taken and the amount

per percentage is fixed at Rs.5,000/-. Therefore, the compensation under the

head of disability would be a sum of Rs.55,000/- (Rs.5,000 x 11%).

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9. The first respondent/claimant would submit that the accident

had occurred only on account of the driver of the lorry applying the brake

suddenly. If the first respondent/claimant had maintained the mandatory

distance, he would not have suffered any injuries. In fact the Rule 23 of the

Rules of Road Regulations, 1989 would provide as follows:-

"Distance from vehicles in front:- The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop".

Therefore, he has also contributed for the accident and his negligence is

assessed at 10%. Therefore, the compensation under head of just

compensation is reduced from Rs.1,42,560/- to a sum of Rs.55,000/-.

Therefore, the re-worked compensation is as follows:-

                                         Heads             Amount by the           Amount Awarded by
                                                             Tribunal                 this Court
                                                               in Rs.                    in Rs.
                             Just Compensation                          1,42,560                  55,000






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                                                                                             C.M.A.No.1035 of 2022


                                        Heads               Amount by the          Amount Awarded by
                                                              Tribunal                this Court
                                                               in Rs.                    in Rs.
                                                                                        Rs.5,000 x 11%
                                                                                             (Reduced)
                             Loss of earnings                            12,000                    12,000
                             Pain and Suffering                          20,000                    20,000
                             Cost of Nourishment                         15,000                    15,000
                             Cost of the Attender                        10,000                    10,000
                             Transport Expenses                          10,000                    10,000
                             Medical Bills                               41,744                    41,744
                             Mental Agony                                25,000                    25,000
                             Loss of       clothing    on                 1,000                     1,000
                             accident
                                                    Total               2,77,304                  1,89,744

10. In the result, the Civil Miscellaneous Appeal is partly allowed

and the appellant -Insurance Company is liable to pay 90% of the Award

Amount i.e, a sum of Rs.1,70,770/- to the claimant. The appellant-Insurance

Company is directed to deposit the above said amount to the credit of

M.C.O.P.No.878 of 2019 along with interest at the rate of 7.5% per annum

from the date of claim petition till the date of deposit and costs as awarded

by the Tribunal, less, the amount, if any already deposited, within a period

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of six weeks from the date of receipt of a copy of this judgment. The first

respondent / claimant shall forfeit the remaining 10% of the award amount

due to his own contributory negligence. On such deposit being made, the

first respondent/claimant is permitted to withdraw the award amount, along