Madras High Court

M/S.Iffco Tokio General ... vs S.Elumalai on 20 June, 2022

                                                  CMA No.3469 of 2017 and Cros.Obj.No.44 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 20.06.2022

                                                     CORAM:

                                      THE HON'BLE Ms. JUSTICE P.T.ASHA

                                               CMA No.3469 of 2017
                                                       and
                                   C.M.P.No.22037 of 2017 and Cros.Obj.44 of 2020


                     C.M.A.No.3469 of 2017

                     M/s.Iffco Tokio General Insurance Company Ltd.,
                     No.128, Habibulla Road,
                     2nd and 3rd Floor,
                     T.Nagar, Chennai 600 017                                 …     Appellant

                                                     versus

                     1. S.Elumalai

                     2. Arumugam                                           …
                             Respondents

Cross Objection No.44 of 2020 in C.M.A.No.3469 of 2017

Elumalai … Cross Appellant

-vs-

1.M/s.Iffco Tokio General Insurance Company Ltd., No.128, Habibulla Road, 2nd and 3rd Floor, T.Nagar, Chennai 600 017

2. Arumugam ...Respondents https://www.mhc.tn.gov.in/judis

CMA No.3469 of 2017 and Cros.Obj.No.44 of 2020

Prayer in CMA No.3469 of 2017 : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree made in M.C.O.P.No.982 of 2013 dated 22.12.2016 on the file of the Motor Accident Claims Tribunal, II Court of Small Causes, Chennai.

Prayer in Cross Objection No.44 of 2020: Cross Objection filed under Section 173 of Motor Vehicles Act, 1988 against the Award dated 22.12.2016 made in M.C.O.P.No.982 of 2013 on the file of the Motor Accident Claims Tribunal, II Judge, Small Causes Court, Chennai.

For Appellant in C.M.A.No.3469 of 2017 & respondent-1 in Cross : M/s.Harini Objection No.44 of 2020 for M/s.M.B.Gopalan Associates

For respondent-1 in C.M.A.No.3469 of 2017 & Cross Objectors in Cross Objection No.44 of 2020 : Ms.A.Subadra

For Respondent-2 in C.M.A.No.3469 of 2017 : Served-No Appearance

COMMON JUDGMENT

The Insurance Company has filed the Civil Miscellaneous Appeal,

challenging the adoption of a multiplier method to grant compensation to

the first respondent /claimant without there being an evidence to show

that the claimant had sustained a functional disability. The first

respondent/claimant has filed cross objections seeking enhancement of

https://www.mhc.tn.gov.in/judis

CMA No.3469 of 2017 and Cros.Obj.No.44 of 2020

the compensation.

2. The brief facts are as follows:-

The first respondent had filed M.C.O.P.No.982 of 2013 on the file

of the Motor Accident Claims Tribunal, II Court of Small Causes,

Chennai seeking compensation of a sum of Rs.20,00,000/- for the injuries

sustained by him in a road accident. It was his case that on 15.01.2013

at about 4.00 p.m., when he was riding his two wheeler bearing

Registration No.TN-19Y-7213 on the ECR, a Toyoto Innova Car, bearing

Registration No.PY 02 M 9696 driven by its driver in a rash and

negligent manner, hit the two wheeler, as a result of which, the claimant

has sustained multiple injuries all over his body. The above accident had

occurred only account of the rash and negligent driving of the driver of

the Innova Car. The first respondent as the owner of the vehicle and the

second respondent as the insurer are jointly and severally liable to pay the

compensation.

3. The owner of the vehicle remained absent. The Insurance

Company has entered appearance and filed a counter, inter alia, denying

the accident, the negligence on the part of the first respondent's driver and

also contending that the first respondent had also contributed the https://www.mhc.tn.gov.in/judis

CMA No.3469 of 2017 and Cros.Obj.No.44 of 2020

accident. The Tribunal has held negligence only on the part of the driver

of the Tata Innova Car thereby making the Insurance Company liable to

pay the said compensation and relying upon the evidence of P.W2-Doctor

had awarded a compensation of Rs.5,06,340/-.

4. The Tribunal below relying upon the evidence of P.W2,

Ex.P3-Discharge Summary and Ex.P14-Disability Certificate held that

the first respondent had sustained a permanent disability and although

P.W2 had assessed the disability at 65%, the Tribunal had only taken the

functional disability at 25% and thereafter, taking into consideration the

age of the claimant, assessed the loss of future earning capacity at

Rs.3,36,000/- (Rs.8,000 x 12 x 14 x 25%). The Tribunal had fixed the

monthly income at a sum of Rs.8,000/-.

5. The Insurance Company is aggrieved by the fact that though

the first respondent has not suffered any disablement, the adoption of the

multiplier method and the compensation awarded to him under this head

is totally without any basis and the Tribunal ought to have fixed the

compensation on a percentage basis adopting the judgment of the Hon'ble

Supreme Court reported in 2011 ACJ 1[Raj Kumar -vs- Ajay Kumar https://www.mhc.tn.gov.in/judis

CMA No.3469 of 2017 and Cros.Obj.No.44 of 2020

and another].

6. The learned counsel for the appellant-Insurance Company

would submit that the adoption of the multiplier method was totally

erroneous, since the claimant has not submitted that he has sustained any

set back in his earning capacity or that he was continuously undergoing

treatment, thereby he is unable to work. The learned counsel would

submit that though the first respondent had pleaded that he is a lorry

driver and owning 4 vehicles, no proof whatsoever of same has been

produced for the same before this Court.

7. Per contra, Ms.A.Subadra, learned counsel appearing on

behalf of the first respondent/claimant would submit that P.W2 -Doctor

has, in very clear terms, opined, as to how the accident and the

consequent injuries has impaired the movements of the first

respondent/Claimant and that, he is unable to carry on his work as a lorry

driver. To prove his avocation, the first respondent has produced the

badge, which has been marked as Ex.P11. This would show that the first

respondent was employed as a Driver and the injuries sustained by him

would definitely cause an impediment for his continuing as a lorry driver.

https://www.mhc.tn.gov.in/judis

CMA No.3469 of 2017 and Cros.Obj.No.44 of 2020

8. Heard the learned counsel on either side and perused the

materials available on record.

9. The first respondent/claimant has submitted that he had

suffered grievous injuries and has not been able to function as before and

therefore, the adoption of multiplier method was correct and that the

compensation awarded was very low and has to be enhanced.

10. A perusal of Ex.P2-Discharge Summary of Chettinad

Medical College and Hospital would indicate that the petitioner has

suffered a contusion on his right forehead, abrasions on his chin,

laceration on his knee, swelling and tenderness on his left foot. The

document would further show that the claimant has got himself

discharged against the medical advice. It is seen from a perusal of Ex.P3

that the claimant has got himself admitted at Chettinad Hospital and

Research Institute on 16.01.2013, where he stayed for 2 days, on

18.01.2013, he was discharged once again against the medical advice.

11. The main ground, on which, the Tribunal below has granted https://www.mhc.tn.gov.in/judis

CMA No.3469 of 2017 and Cros.Obj.No.44 of 2020

compensation by adopting the multiplier method is Ex.P14-Disability

Certificate issued by P.W2-Doctor. However, a perusal of the oral

evidence of P.W1, the claimant would indicate that on 12.11.2014, he has

renewed his licence for driving passenger vehicles, which clearly shows

that he has suffered no functional disability. It is well known that while

renewing the licence for heavy vehicles, the Regional Transport Office

(RTO) Office would insist on a medical examination and unless the

claimant clears it, he would not obtain a renewal of licence. This clearly

supports the contention of the appellant - Insurance Company that the

adoption of the multiplier method is incorrect. The records would

indicate that he would not have gone for work for 6 months. Therefore,

under the head of Loss of earnings, the amount would be enhanced by a

further sum of Rs.24,000/- adopting the monthly income of Rs.8,000/-, as

fixed by the Tribunal below. However, the amount granted under the

head of loss of earnings is modified and the compensation is calculated

on a percentage basis. The Accident is of the year 2013. A sum of

Rs.3,000/- per percentage can be adopted and the percentage of 65%

disability as arrived at by P.W2 in Ex.P14 can be adopted, since the

Tribunal has not given adequate reasons for reducing the same to 25%.

Therefore, the amount under this head would be Rs.3,000 x 65% = https://www.mhc.tn.gov.in/judis

CMA No.3469 of 2017 and Cros.Obj.No.44 of 2020

1,95,000/-.

12. In view of the above, this Court enhances the compensation

payable to the cross objector to Rs.6,77,340/- instead of Rs.5,06,340/-

as detailed hereunder.

                                          Heads               Amount awarded Amount awarded
                                                               by the Tribunal by this Court
                                                                    (Rs.)          (Rs.)
                           Transportation, nourishing
                           food and miscellaneous                        50,000               50,000
                           expenditure
                           Medical expenses                                9,340                9,340
                           Attender Charges                              12,000               12,000
                           Loss of earning capacity                     3,36,000            1,95,000
                           power                                                          (Reduced)
                           Loss of earnings during the                   24,000              48,000
                           period of treatment                                           (Enhanced)
                           Damages for pain, suffering                   50,000               50,000
                           and trauma
                           Loss of Amenities                             25,000               25,000
                           Total                                        5,06,340            3,89,340

13. In the result, the Cross objection filed by the claimant in Cross

Objection No.44 of 2020 is dismissed and the appeal filed by the

Insurance Company in C.M.A.No.3469 of 2017 is partly allowed.

https://www.mhc.tn.gov.in/judis

CMA No.3469 of 2017 and Cros.Obj.No.44 of 2020

14. The appellant in CMA No.3469 of 2017 as well as the first

respondent in Cross Objection No.44 of 2020 is directed to deposit the

entire award amount of Rs.3,89,340/- as assessed by this Court together

with interest at 7.5% p.a. from the date of claim petition till the date of

realization, less the amount, if any, already deposited to the credit of

M.C.O.P.No.982 of 2013 on the file of the Motor Accident Claims

Tribunal (II Court of Small Causes) at Chennai, within a period of eight