Madras High Court
M/S.Cholamandalam Ms General ... vs P.Annamalai on 7 June, 2022
C.M.A.No.565 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.565 of 2022
and C.M.P.No.4100 of 2022
M/s.Cholamandalam MS General Insurance
Company Limited
Dare House
Anna salai, Chennai. ... Appellant
Vs.
1.P.Annamalai
2.A.Mubarak Ali ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 07.04.2021 made
in M.C.O.P.No.423 of 2016 on the file of Motor Accident Claims Tribunal,
Special Sub Court, Coimbatore.
1/11
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C.M.A.No.565 of 2022
For Appellant : Mr.M.B.Raghavan
for M/s.M.B.Gopalan Associates
For R1 : Mr.C.Deepak Kumar (caveator)
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI,J.)
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the judgment and decree dated
07.04.2021 made in M.C.O.P.No.423 of 2016 on the file of Motor Accident
Claims Tribunal, Special Sub Court, Coimbatore.
2.The appellant/Insurance Company is the 2nd respondent in
M.C.O.P.No.423 of 2016 on the file of Motor Accident Claims Tribunal,
Special Sub Court, Coimbatore. The 1st respondent filed the said claim
petition claiming a sum of Rs.45,00,000/- as compensation for the injuries
sustained by him in the accident that took place on 05.10.2015.
3.According to the 1st respondent, on the date of accident i.e., on
05.10.2015 at about 23.00 hours, while he was riding his motorcycle bearing
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C.M.A.No.565 of 2022
Registration No.TN 39 BQ 5529 on Tiruppur – Perumallur Main Road from
South to North direction, near Raba KRR Honda show room, the 2 nd
respondent, the driver-cum-owner of the Auto Rickshaw bearing Registration
No.TN 39 BL 3740, who came in the opposite direction, drove the same in a
rash and negligent manner, dashed against the motorcycle driven by the 1st
respondent and caused the accident. In the accident, the 1 st respondent
sustained grievous injuries all over the body. Therefore, the 1st respondent has
filed the above claim petition claiming compensation against the 2nd
respondent, driver-cum-owner of the Auto Rickshaw and appellant/Insurance
Company, insurer of the said Auto Rickshaw.
4.The 2nd respondent, driver-cum-owner of the Auto Rickshaw
remained exparte before the Tribunal.
5.The appellant/Insurance Company filed counter statement denying
the manner of the accident stated by the 1st respondent and stated that the
accident has occurred only due to negligence of the 1st respondent, who rode
the motorcycle bearing Registration No.TN 39 BQ 5529 in a negligent
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C.M.A.No.565 of 2022
manner. The 1st respondent sustained only simple injuries, the amount
claimed by him is excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1
and one Chinnasamy, his employer was examined as P.W.2 and 11 documents
were marked as Exs.P1 to P11. The appellant/Insurance Company did not let
in any oral and documentary evidence. Disability certificate issued by the
Medical Board, Kovai Medical College was marked as Ex.C1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the 2nd respondent, the driver-cum-owner of Auto Rickshaw and directed the
2nd respondent as well as appellant/Insurance Company being the insurer of
the said Auto Rickshaw to jointly and severally pay a sum of Rs.18,45,800/-
as compensation to the 1st respondent.
8.Questioning the quantum of compensation awarded by the Tribunal,
the appellant/Insurance Company has come out with the present appeal.
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C.M.A.No.565 of 2022
9.The learned counsel appearing for the appellant/Insurance Company
contended that the assessment of disability by the Medical Board is on the
higher side and it has to be reviewed. The injuries sustained by the 1st
respondent would not affect his earning capacity. The Tribunal without
considering the same, adopted multiplier method and granted enhancement
towards future prospects. The Tribunal in the absence of any document with
regard to avocation and income of the 1st respondent, erred in fixing a sum of
Rs.13,000/- towards monthly income and awarded a sum of Rs.14,62,500/-
towards loss of earning, which is excessive. The amounts awarded by the
Tribunal towards pain and suffering and loss of amenities are also excessive
and prayed for setting aside the award of the Tribunal.
10.Per contra, the learned counsel appearing for the caveator/1st
respondent contended that the total compensation awarded by the Tribunal is
not excessive and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 1st respondent and perused the entire
materials on record.
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C.M.A.No.565 of 2022
12.From the materials on record, it is seen that in the accident, the 1st
respondent suffered multiple injuries in right humerus, supracondylar
fracture, right distal femur fracture and both bones right leg fracture, which
resulted in partial loss of rom at right elbow, right knee, co-ordinated
activities of right upper limb and stability of right lower limb. The 1st
respondent took treatment as in-patient at Coimbatore Medical College
Hospital from 06.10.2015 to 14.01.2016 and underwent multiple surgeries.
The 1st respondent appeared before the Medical Board. The Medical Board
examined the 1st respondent and assessed that he suffered 72% permanent
disability. The Tribunal taking into consideration the nature of injuries, nature
of disability, disability certificate, nature of work done by the 1st respondent
before the accident and judgment of the Division Bench of this Court
reported in 2020 (1) TNMAC 202 (DB) [The Branch Manager, Shriram
General Insurance Co. Ltd. vs. B.Madhu and another], held that
permanent disability is different from functional disability and fixed 50% as
functional disability of the 1st respondent and adopted multiplier method.
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C.M.A.No.565 of 2022
12(i).The 1st respondent claimed that he was aged 40 years at the time
of accident, he was working as a Cutting Master in Divyatex, Tiruppur and
was earning a sum of Rs.30,000/- per month. To prove his claim, the 1 st
respondent examined one Chinnasamy, employer, as P.W.2. P.W.2 deposed
that 1st respondent worked in his Company from February 2012 to October
2015 and he was paid a sum of Rs.26,500/- per month as salary and marked
Ex.P10 salary certificate. The Tribunal in the absence of any supporting
document with regard to existence of Company of P.W.2, did not accept
evidence of P.W.2 and Ex.P10. The Tribunal following the judgment of the
Division Bench of this Court reported in 2020 (1) TNMAC 202 (DB) cited
supra, fixed monthly income of the 1st respondent at Rs.13,000/-. The
accident is of the year 2015 and the monthly income fixed by the Tribunal is
not excessive. The 1st respondent was aged 40 years at the time of accident.
The Tribunal following the judgment of the Hon'ble Apex Court reported in
2017(2)TNMAC 609 (SC) (National Insurance Company v. Pranay
Sethi), granted 25% enhancement towards future prospects and following the
judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC
[Sarla Verma & Others vs. Delhi Transport Corporation & another],
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C.M.A.No.565 of 2022
applied multiplier '15' and granted a sum of Rs.14,62,500/- towards loss of
earning. There is no error in the said award of the Tribunal with regard to loss
of earning.
12(ii). The Tribunal in addition to that amount, awarded Rs.2,00,000/-,
Rs.1,00,000/-, Rs.20,000/- and Rs.25,000/- towards pain and suffering, loss
of amenities, extra nourishment and attendant charges respectively. The 1st
respondent took treatment as in-patient at Coimbatore Medical College
Hospital from 06.10.2015 to 14.01.2016 and marked Ex.P3. Taking into
consideration the treatment taken by the 1st respondent, the amounts granted
by the Tribunal towards extra nourishment and attendant charges are meagre
and hence, the same are hereby enhanced to Rs.50,000/- each. Considering
the treatment taken by the 1st respondent and surgeries underwent by him, we
are of the opinion that amounts granted by the Tribunal towards pain and
suffering and loss of amenities are excessive and hence, the same are hereby
reduced from Rs.2,00,000/- to Rs.1,00,000/- and from Rs.1,00,000/- to
Rs.50,000/- respectively. The amounts awarded by the Tribunal under all
other heads are just and reasonable and hence, the same are hereby
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C.M.A.No.565 of 2022
confirmed. Thus the compensation awarded by the Tribunal is modified as
follows:
S.No Description Amount Amount Award
awarded by awarded by this confirmed or
Tribunal Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of earning 14,62,500 14,62,500 Confirmed
2. Pain and 2,00,000 1,00,000 Reduced
suffering
3. Loss of 1,00,000 50,000 Reduced
amenities
4. Medical 15,300 15,300 Confirmed
Expenses
5. Extra 20,000 50,000 Enhanced
nourishment
6. Transportation 20,000 20,000 Confirmed
7. Attendant 25,000 50,000 Enhanced
Charges
8. Damage to 3,000 3,000 Confirmed
clothes
Total 18,45,800 17,50,800 Reduced by
Rs.95,000/-
13.With the above modification, the Civil Miscellaneous Appeal is
partly allowed. The compensation of Rs.18,45,800/- awarded by the Tribunal
is hereby reduced to Rs.17,50,800/- together with interest at the rate of 7.5%
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C.M.A.No.565 of 2022
per annum (excluding the default period, if any) from the date of petition till
the date of deposit. The appellant/Insurance Company is directed to deposit
the award amount now determined by this Court along with 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 judgment. On such deposit, the 1st
respondent is permitted to withdraw the award amount now determined by
this Court, along with interest and costs, after adjusting the amount if any,
already withdrawn. The appellant/Insurance Company is permitted to
withdraw the excess amount lying in the deposit to the credit of
M.C.O.P.No.423 of 2016 on the file of Motor Accident Claims Tribunal,
Special Sub Court, Coimbatore, if the entire award amount has already been
deposited by them. Consequently, connected Miscellaneous Petition is closed.
No costs.
(V.M.V., J) (S.S., J)
07.06.2022
Index : Yes / No
kj
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C.M.A.No.565 of 2022
V.M.VELUMANI,J.
and
S.SOUNTHAR,J.
kj
To
1.The Special Sub Court
Motor Accident Claims Tribunal
Coimbatore.
2.The Section Officer
VR Section
High Court
Madras.
C.M.A.No.565 of 2022
and C.M.P.No.4100 of 2022
07.06.2022
https://www.mhc.tn.gov.in/judis
