Madras High Court
The Manager vs Ramani on 26 October, 2022
C.M.A.No.468 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.10.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.468 of 2022
and C.M.P.No.16264 of 2022
The Manager,
M/s.United India Insurance Co. Ltd.,
No.457, V.E.Street, Thoothukudi,
Thoothukudi TK, Namakkal ... Appellant
Vs.
1.Ramani
2.Santhi ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 30.03.2021 made in
M.C.O.P.No.544 of 2014 on the file of Motor Accident Claims Tribunal, Additional
District Court, Namakkal.
For Appellants : Mr.S.Arun Kumar
For R1 : Mr.C.Thangaraja
For R2 : No appearance
1/13
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C.M.A.No.468 of 2022
JUDGMENT
(Judgment of the Court was delivered by SUNDER MOHAN,J.)
The Civil Miscellaneous Appeal has been filed by the appellant/Insurance
Company against the Judgment and decree dated 30.03.2021 made in
M.C.O.P.No.544 of 2014 on the file of Motor Accident Claims Tribunal, Additional
District Court, Namakkal.
2.The appellant/Insurance Company is the second respondent in
M.C.O.P.No.544 of 2022 on the file of Motor Accident Claims Tribunal, Additional
District Court, Namakkal. The first respondent filed the claim petition claiming a sum
of Rs.2,00,00,000/- as compensation together with interest at 12% per annum for the
injuries sustained by him in the accident that took place on 30.12.2013. According to
the first respondent on 30.12.2013, 7.30 p.m., when he was travelling in his bike
bearing Registration No.TN47 P 0874 and he was waiting on the left-hand side road
to cross the Namakkal to Karur main road, National High Ways road from Paramathy
Velur to reach his house on the other side of the road, the driver of the car bearing
Registration No.TN-34-R-0990 drove the car in a rash and negligent manner and
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C.M.A.No.468 of 2022
dashed against him. In the accident, the first respondent sustained grievous injuries
all over the body. Hence, he filed the claim petition claiming compensation against
the appellant/Insurance company and the second respondent herein the insurer and
owner of the offending vehicle respectively.
3.The owner of the vehicle/second respondent filed counter stating that the
accident did not take place in the manner alleged by the first respondent and the first
respondent ought not to have crossed the road on a National High Ways and there was
no crossing permitted in the said place of accident. In any event, the appellant alone is
liable to compensate as per the insurance policy.
4.The appellant/Insurance Company filed counter denying the averments made
in the claim petition and stated that the first respondent herein who was the rider of
the two wheeler is the tort-feasor under the law and he is not entitled to claim any
compensation. The first respondent had tried to cross the National High Ways Bye-
pass road in flagrant violation of the rules and regulations of the Traffic. The second
respondent herein did not drive the vehicle in a rash and negligent manner and could
not have expected the vehicle to cross the National High Ways at that place. Further,
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C.M.A.No.468 of 2022
the appellant had stated that the claim petition is bad for non-joinder of parties as the
insurer of the motorcycle involved in the accident was not arrayed as a party.
5.Before the Tribunal the first respondent examined three witnesses. He
examined himself as P.W.1 and one Dr.Sivalingam as P.W.2, and one Kanagavel as
P.W.3 and marked 28 documents Exs.P.1 to P.28. The second respondent, examined
Sub Inspector of Police, Velur Police Station as R.W.1 and marked Rough Sketch,
Ex.R.1. Two exhibits viz., Ex.X1, Authorization letter, and Ex.X2, Salary Certificate,
were marked through P.W.3.
6. The Tribunal considering the pleadings, oral and documentary evidence,
held that the accident occurred due to rash and negligent driving of the driver of the
car bearing Registration No. TN-34-R-0990 belonging to the second respondent and
directed the appellant/Insurance Company being the insurer of the offending vehicle
to pay a compensation of Rs.75,16,900/- to the first respondent.
7.Against the said award dated 30.03.2021 made in M.C.O.P.No.544 of 2014,
the appellant/Insurance Company has filed the present Civil Miscellaneous Appeal.
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C.M.A.No.468 of 2022
8.The learned counsel appearing for the appellant submitted that the Tribunal
had committed an error in awarding the huge compensation of Rs.75,16,900/- without
proper evidence. The learned counsel submitted that the driver of the car was not
responsible for the accident and it was due the unmindful riding of the first
respondent that the accident took place. The Tribunal ought to have fixed contributory
negligence on the part of the driver of the car. The learned counsel submitted that the
first respondent had not established that he had lost his job and hence, the Tribunal
ought not to have awarded Rs.69,71,900/- towards loss of earning power. P.W.2, the
Doctor had assessed physical disablement and had not assessed the alleged permanent
disability in respect of the whole body. The Tribunal had failed to distinguish between
the physical disablement and loss of earning power as laid down by the Hon'ble Apex
Courts and this Court in several cases. The learned counsel further submitted that in
the absence of proof that the first respondent lost his earning capacity, the Tribunal
ought not to have adopted the multiplier method to calculate the compensation. The
learned counsel also filed C.M.P.No.16264 of 2022, to receive the interim
investigation report of one Mr.Ramesh, as additional documentary evidence along
with enclosures. The learned counsel further submitted that the first respondent
misrepresented before the Tribunal and gave false evidence to the effect that he had
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C.M.A.No.468 of 2022
lost his job. The appellant came to know only now that he is in employment
continuously and he is now working as a Principal in KVBOA Matriculation Higher
Secondary School and prayed for setting aside the award of the Tribunal.
9.The learned counsel appearing for the first respondent submitted that it is an
admitted fact that the first respondent is working as a Principal in KVBOA
Matriculation Higher Secondary School. However, he is earning a lesser salary than,
what he was earning at the time of the accident and hence, the compensation awarded
by the Tribunal is not excessive, and prayed for dismissal of the appeal. However, he
had no serious objections to the petition filed by the appellant for receiving additional
documents. The learned counsel further submitted that the first respondent also filed a
typed set of papers containing a few documents which were not marked before the
Tribunal. The learned counsel for the first respondent however did not file any
petition to receive them as additional evidence.
10.Heard the learned counsel appearing for the appellant/Insurance Company
as well as the learned counsel appearing for the first respondent and perused the entire
materials available on record.
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C.M.A.No.468 of 2022
11.The appellant has filed C.M.P.No.16264 of 2022 to receive investigation
interim report dt.22.08.2022 of Mr.Ramesh along with enclosures as additional
documentary evidence. The Respondent has no objection to allow the said
application. In view of the same, C.M.P.No.16264 of 2022 is allowed and the
report with enclosures is taken as additional evidence.
12.From the materials on record, and the submissions of the learned counsels,
it is seen that there is no serious challenge with regard to the finding that the first
respondent was guilty of rash and negligent driving. The issue is only with regard to
the quantum awarded by the Tribunal. As regards the quantum it is the case of the
first respondent that he was working as a Principal of a reputed school and was
earning a sum of Rs.75,000/- per month. Because of the accident, he sustained
grievous injuries and suffered from frequent giddiness and semi unconsciousness, and
therefore, unable to attend his normal work. That apart, due to the fracture in the left
leg and foot, the first respondent was not able to walk and could not stand on his own
and therefore, he lost his job. The Doctor, P.W.2, deposed that the first respondent
suffered fracture in meta carpal bone, right proximal tibia, maxilla bone etc, and was
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C.M.A.No.468 of 2022
treated with multiple surgical line of treatment such as open reduction and internal
fixation and closed reduction + K wiring. On clinical examination P.W.2 issued a
Disability Certificate Ex.P.24 wherein he had assessed the percentage of disability
caused to the first respondent as 60%. The Tribunal held that considering the nature
of the injuries the first respondent was permanently disabled and he had to forego his
employment and therefore, suffered 100% income loss. However, we find from the
additional evidence produced by the appellant that the first respondent has made a
false statement that he had to forego his employment as he was totally disabled. The
evidence produced by the appellant now clearly demonstrates that the first respondent
is now working as a Principal of another School viz., KVBOA Education Trust and is
earning a monthly salary of Rs.40,000/- since January 2021. That apart, the
documents filed by the appellant also suggests that the first respondent was able to
carry on his normal activities and in fact, was able to drive his car.
13. The learned counsel for the first respondent admits that he is currently in
employment. However, we find that the first respondent has not come up with the
facts and has specifically denied employment at the time of cross examination. The
first respondent did not produce any document to show that due to his disability he
was removed from the seven schools where he was employed. The learned counsel
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C.M.A.No.468 of 2022
for the first respondent submits that though there was no total loss of income, the first
respondent has lost substantially because of reduction in income. We are unable to
countenance the submission as this is contrary to the first respondent's stand before
the Tribunal. That apart, there is nothing to show that because of his physical in-
capacity the salary got reduced as rightly contended by the learned counsel for the
appellant. Therefore, we are of the view that the approach of the Tribunal in awarding
compensation by adopting multiplier method is erroneous. The compensation can be
only awarded on the basis of the percentage of disability suffered by the first
respondent. Therefore, the compensation awarded by the Tribunal under the head,
loss of income is liable to be set aside and it is accordingly set aside. The first
respondent is entitled to compensation towards disability only by adopting percentage
method.
14. From the materials on record, it is seen that PW2 – Dr.Sivalingam,
Orthopaedic surgeon of C.M.Hopsital, Namakkal has examined the first
respondent and certified that the first respondent suffered 62% disability and
issued Ex.P24-disability certificate to that effect. The appellant has not let in any
contra evidence to disprove the evidence of PW2 – Doctor or Ex.P24 – disability
certificate. In view of the same, the first respondent is entitled to compensation
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C.M.A.No.468 of 2022
for 62% disability. The accident is of the year 2013. Hence, a sum of Rs.3,000/-
is granted per percentage of disability. Thus, a sum of Rs.1,86,000/- (Rs.3,000/- X
62% disability) is awarded as compensation towards disability. The Tribunal has
awarded a sum of Rs.10,000/- towards attendant charges. A perusal of Ex.P.12
discloses that the first respondent has taken treatment in the hospital as in-patient
from 19.01.2014 to 29.01.2014. Therefore, the amount awarded by the Tribunal
towards attendant charges can be fixed at Rs.2000/- per day for 10 days (i.e.)
2000x10=20,000/-. The amount awarded towards Extra Nourishment and transport to
hospital are enhanced to Rs.35,000/- and Rs.30,000/- respectively as the amounts
awarded by the Tribunal are meagre. The Tribunal has not awarded any amount
towards loss of amenties. Due to the injuries sustained in the accident, the first
respondent would have suffered some discomfort. Hence, a sum of Rs. 50,000/- is
awarded towards loss of amenities. Thus, the compensation awarded by the Tribunal
is modified as follows:
S.No Description Amount awarded Amount awarded Award confirmed
by Tribunal by this Court or enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of income 69,71,900 - Set aside
due to permanent
disability
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C.M.A.No.468 of 2022
2. Medical 4,00,000 4,00,000 Confirmed
Expenses
3. Pain and 1,00,000 1,00,000 Confirmed
suffering
4. Transport to 15,000 30,000 Enhanced
hospital
5. Extra 20,000 35,000 Enhanced
Nourishment
6. Attendant 10,000 20,000 Enhanced
Charges
7. Disability - 1,86,000 Granted
8. Loss of amenities - 50000 Granted
Total 75,16,900/- 8,21,000/- Reduced by
Rs.66,95,900 /-
15. In the result, this Civil Miscellaneous Appeal is partly allowed and the
compensation awarded by the Tribunal at Rs.75,16,900/- is hereby reduced to
Rs.8,21,000/- together with interest at the rate of 7.5% 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 first respondent is permitted to withdraw the
award amount now determined by this Court, along with proportionate interest and
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C.M.A.No.468 of 2022
costs, less the amount if any, already withdrawn. Consequently, connected
miscellaneous petition is closed. No costs.
(V.M.V., J) (S.M., J)
26.10.2022
Index : Yes / No
vsn
V.M.VELUMANI,J.
and
SUNDER MOHAN,J.
vsn
To
1.The Additional District Judge,
Motor Accident Claims Tribunal,
Namakkal.
2.The Section Officer,
VR Section,
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C.M.A.No.468 of 2022
High Court, Madras.
C.M.A.No.468 of 2022
and C.M.P.No.16264 of 2022
26.10.2022
https://www.mhc.tn.gov.in/judis
