Madras High Court
Reliance General Insurance ... vs Samule Gaodwin on 24 March, 2022
C.M.A.(MD)No.358 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A(MD)No.358 of 2021
and
C.M.P.(MD)Nos.2956 and 5748 of 2021
Reliance General Insurance Company Ltd.,
No.10/4/4, Thaga Blaza, 2nd Floor,
South Bypass Road, Vannarapettai,
Tirunelveli-627 003,
Through its Branch Manager ... Appellant / 2nd Respondent
-Vs-
1.Samule Gaodwin
(through his father and guardian, namely, Anbazhagan)
... 1st Respondent / Petitioner
2.Blewin John ... 2nd Respondent / 1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, praying this Court to set aside the judgment
and decree dated 4th August, 2020 passed in M.C.O.P.No.301 of 2016 on
the file of the Motor Accident Claims Tribunal, Tirunelveli / Special Sub
Judge dealing with MCOP Cases, Tirunelveli.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.358 of 2021
For Appellant : Mr.V.Sakthivel
For R1 : Mr.T.Lenin Kumar
For R2 : No Appearance
JUDGMENT
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
The Insurance Company is on appeal. The challenge is to the
award, granting a sum of Rs.21,86,505/- (Rupees Twenty One Lakhs
Eighty Six Thousand Five Hundred and Five Only) for the injuries
suffered by the first respondent in a motor accident that occurred on
26.01.2012.
2.The first respondent was a minor, aged about 14 years on the
date of the accident. The claimant / first respondent would contend that
while he was riding as a pillion rider in a motor cycle, that was driven by
one Rohit Kevin Pernanto, the two wheeler hit against the electric post
and as a result of which, the claimant suffered serious injuries, which
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C.M.A.(MD)No.358 of 2021
rendered him paraplegic. Contending that his entire life has been
affected because of the accident, the claimant sought for compensation of
Rs.30,00,000/- (Rupees Thirty Lakhs Only). The claim was resisted by
the Insurance Company, contending that the accident occurred due to the
negligence of the claimant, inasmuch as the claimant was not wearing
helmet. The quantum of compensation claimed was also termed as
excessive.
3.At trial, the father of the injured claimant was examined as
P.W.1 and atleast 4 doctors were examined as P.W.2 to P.W.5 and Ex.P.1
to Ex.P.20 were marked. On the side of the Insurance Company, two
witnesses were examined as R.W.1 and R.W.2 and Ex.R.1 to Ex.R.3 were
marked.
4.The Tribunal, upon consideration of the evidence on record,
particularly, First Information Report and the evidence of P.W.1,
concluded that the accident occurred due to the negligence of the rider of
the two wheeler and as the insurer of the two wheeler, the appellant
Insurance Company is liable to pay compensation. On the quantum, the
Tribunal assessed functional disability at 64.3%. Since the disability
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C.M.A.(MD)No.358 of 2021
would have an effect on the earning capacity, the Tribunal adopted
multiplier method and fixed monthly notional income as Rs.9000/-
(Rupees Nine Thousand Only) and 40% was added towards future
prospects. The Tribunal adopted multiplier of 18 and awarded following
amounts under various heads:-
SL.No. Heads Calculation
1 Loss of earning power Rs.17,49,989/-
2 Medical Bills Rs.3,31,516/-
3 Attendance Charges Rs.30,000/-
4 Pain and Sufferings Rs.50,000/-
5 Transport Expenses Rs.5,000/-
6 Extra Nourishment Rs.20,000/-
Total Compensation Awarded Rs.21,86,505/-
5.We have heard Mr.V.Sakthivel, learned counsel appearing for
the appellant and Mr.T.Lenin Kumar, learned counsel appearing for the
first respondent.
6.The second respondent is the owner of the vehicle and he had
remained ex-parte before the Tribunal. Hence, notice to him is dispensed
with.
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C.M.A.(MD)No.358 of 2021
7.Mr.V.Sakthivel, learned counsel for the appellant would
submit that the Tribunal must have adopted certain percentage of
deduction towards negligence on the part of the claimant (non-wearing of
helmet by the claimant). He would also add that the Tribunal erred in
adopting the multiplier 18 instead of 15.
8.We are unable to sustain the first contention of the learned
counsel for the appellant for the reason that the injured was riding only
as pillion rider. Non wearing of helmet by a pillion rider will not amount
to contributory negligence. Moreover he was only 14 years old at the
time of the accident. As far as the second contention is concerned, we
find some force in the argument of the learned counsel for the appellant
that multiplier should have been 15 not 18. If we reduce the multiplier
from 18 to 15, the loss of dependency would be Rs.14,58,329/- (Rupees
Fourteen Lakhs Fifty Eight Thousand Three Hundred and Twenty Nine
Only). The difference would be Rs.2,91,660/- (Rupees Two Lakhs
Ninety One Thousand Six Hundred and Sixty Only). However, we find
that the award under the heads of Attender Charges, Pain and Sufferings
and Extra Nourishment are substantially low. It is on record that the
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C.M.A.(MD)No.358 of 2021
claimant is suffered from serious injuries and his mental faculties have
been affected and he has been rendered paraplegic. Therefore, the
Tribunal would have awarded some more compensation under the above
heads.
9.On a careful assessment, we find that this excess amount of
Rs.2,91,660/- awarded under the head of loss of earning power could be
disbursed under the heads of Attender Charges, Pain and Sufferings and
Extra Nourishment. On an overall analysis, we find that the award
granted by the Tribunal is just and reasonable. Therefore, we do not find
any ground to interfere with the award of the Tribunal. The order of pay
and recovery granted by the Tribunal is sustained. Hence, this Civil
Miscellaneous Appeal fails and is accordingly dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
[R.S.M.,J.] & [N.S.K.,J.]
24.03.2022
Index:Yes/No
Internet:Yes/No
Myr
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.358 of 2021
To
1.The Special Sub Judge dealing with MCOP Cases,
Motor Accident Claims Tribunal, Tirunelveli.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.358 of 2021
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
Myr
JUDGMENT MADE IN
C.M.A.(MD)No.358 of 2021
24.03.2022
https://www.mhc.tn.gov.in/judis
