Madras High Court
The Oriental Insurance Company ... vs T.S.Sampathkumar on 26 October, 2022
C.M.A.No.811 of 2018 and Cros.Obj.No.82 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.811 of 2018 and Cros.Obj.No.82 of 2022
and C.M.P.No.6751 of 2018
C.M.A.No.811 of 2018
The Oriental Insurance Company Limited,
Divisional Office, Shoba TSM Complex,
R.S.Road, (Opp Town Railway Station),
Palghat 678 001, Kerala State.
... Appellant
Vs.
1.T.S.Sampathkumar, who is in Memory impaired,
Condition, represented by his wife/guardian,
S.Devi @ Shanmugadevi
2.A.Syed Mohammad
3.K.Shinu
... Respondents
1/13
https://www.mhc.tn.gov.in/judis
C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 03.01.2018 made
inM.C.O.P.No.287 of 2014 on the file of Motor Accident Claims Tribunal, (I
Additional District Court), Trippur.
For Appellants : Mr.Elveera Ravindran
For R1 : MR.Ma.Pa.Thangavel
For R2 : Notice not ready
For R3 : Notice served
Cros.Obj.No.82 of 2022
T.S.Sampathkumar, who is in Memory impaired,
Condition, represented by his wife/guardian,
S.Devi @ Shanmugadevi
…Cross Objector
1.The Oriental Insurance Company Limited,
Divisional Office, Shoba TSM Complex,
R.S.Road, (Opp Town Railway Station),
Palghat 678 001, Kerala State.
2. A.Syed Mohammad
3. K.Shinu
…Respondents
2/13
https://www.mhc.tn.gov.in/judis
C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
Prayer: This Cross Objection is filed under Order XLI Rule 22 of C.P.C., to
enhance the compensation awarded in the judgment and decree dated 03.01.2018
made in M.C.O.P.No.287 of 2014 on the file of Motor Accident Claims Tribunal,
(I Additional District Court),Trippur.
For Cros.Objector : Mr.Ma.Pa.Thangavel
For R1 : Mr.Vinod
for Mr.Elveera Ravindran
JUDGMENT
(Judgment of the Court was delivered by SUNDER MOHAN,J.)
Civil Miscellaneous Appeal No.811 of 2018 has been filed by the appellant-
Insurance Company against the judgment and decree dated 03.01.2018 made in
M.C.O.P.No.287 of 2014 on the file of Motor Accident Claims Tribunal, I
Additional District Court, Tiruppur.
2. Cross Objection No.82 of 2022 has been filed by the Claimant/1st
respondent herein, seeking enhancement of compensation granted by the Tribunal
in the said award.
https://www.mhc.tn.gov.in/judis
C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
3.The appellant-Insurance Company is the 3rd respondent in
M.C.O.P.No.287 of 2014 on the file of Motor Accident Claims Tribunal, I
Additional District Court, Tiruppur and the first respondent filed the said claim
petition claiming a sum of Rs.50,00,000/- as compensation for the injuries
sustained by him in the accident that took place on 30.09.2013.
4.According to the first respondent, on the date of accident i.e., on
30.09.2013 at about 1.45 p.m, when the first respondent was riding the motorcycle
bearing Registration No.TN-30-B 6784 on the Perumanallur to Nambiyur main
road from North to South on the extreme left side of the road with utmost care and
caution and when he was nearing Karukkankattu Pudur, Nadar Colony on the said
road, the second respondent being a driver drove the car bearing Registration No.
KL 09 Y 6682 in a rash and negligent manner from East to West and suddenly
dashed against the motorcycle of the first respondent herein. In the said accident,
the first respondent was thereon away on the road and sustained greivous injuries.
The first respondent immediately was taken to Malar Priya Hospital, pandian
Nagar, Tiruppur, for first aid treatment and thereafter at KMCH Hospital,
Coimbatore, admitted as in-patient for two months. Therefore, the frist respondent
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C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
claimed a sum of Rs.50,00,00/- for compensation against the appellant-Insurance
Company, the driver and the owner of the car bearing Registration No. KL 09 Y
6682.
5.The respondents 2 and 3, who are driver and owner of the vehicle
remained exparte before the Tribunal.
6.The appellant-Insurance Company filed counter statement denying the
averments made in the claim petition and submitted that the alleged accident
happened only due to careless riding by the first respondent. The claim is bad for
non-joiner of parties namely the insurer of the two wheeler belonging to the first
respondent.
7.Before the Tribunal, five witnesses were examined on the side of the first
respondent as P.W.1 to P.W.5 and 10 documents were marked as Exs.P.1 to P.10.
The appellant-Insurance Company neither examined any witnesses nor marked
any documents on their side.
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C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
8.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. KL 09 Y 6682 and directed the appellant-
Insurance Company, being the insurer of the said vehicle to pay a sum of
Rs.29,31,000/- as compensation to the first respondent.
9. Against the said award dated 03.01.2018 made in M.C.O.P.No.287 of
2014, the appellant has come out with appeal in C.M.A.No.811 of 2018. Not being
satisfied with the quantum of compensation by the Tribunal, the first respondent
has filed Coss. Objection No.82 of 2022.
10. The learned counsel for the appellant-Insurance Company was unable to
point out any evidence to dislodge the finding with regard to negligence on the
part of the second respondent herein and hence, cannot assail the finding with
regard to the negligence rendered by the trial Court. As regards the quantum, the
learned counsel submitted that the trial Court had erroneously assessed the
functional disability at 100% on the basis of the evidence of P.W.4 and P.W.5. The
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C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
learned counsel further submitted that P.W.4 and P.W.5 were not the Doctors who
treated the first respondent and the Certificates given by them viz., Exs.P.6 and P.9
cannot be relied upon to hold that the functional disability was 100%. In any case
both the Doctors did not assess the functional disability. The learned counsel for
the appellant further submitted that no evidence has been let in by the first
respondent to show that the first respondent had suffered 100% functional
disability.
11.The learned counsel for the cross objector submitted that the Tribunal
rightly assessed the functional disability for the first respondent at 100% on the
basis of the evidence of P.W.4 and P.W.5. The Tribunal however erred in fixing the
monthly income at Rs.7,000/-, though the first respondent had produced evidence
to show that he earned Rs.20,000/- per month. The Tribunal also erred in fixing
only Rs.50,000/- towards pain and suffering and the same is meagre. Further, the
Tribunal also erred in awarding only Rs.20,000/- towards nutrition.
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C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
12.Heard, the learned counsel for the appellant and the learned counsel for
the first respondent/cross objector and perused the materials available on record.
13.When the matter was taken up for hearing on 06.09.2022, the learned
counsel for the appellant submitted that the Tribunal had erroneously accepted the
disability certificate issued by the Doctors P.W.4 and P.W.5 who had not treated
the first respondent. However, the learned counsel for the first respondent
submitted that the disability certificate issued by the Doctors are correct, however,
the first respondent was willing to subject himself to the examination by the
Medical Board. In view of the said submissions this Court directed the first
respondent to appear before the Medical Board constituted by the Dean,
Government Coimbatore Medical College and Hospital for examination. Pursuant
to the direction issued by this Court, the first respondent appeared before the
Medical Board and after examination, the Medical Board sent a report dated
10.10.2022. The Medical Board opined as follows:
''Post Traumatic Brain Injury Sequelae with right Femur#
Locomotor disability with regard to right upper & lower limb is 65%
(Sixty Five Percent only) ''
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C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
Thus we find that there is no finding to suggest that the first respondent has
become 100% functionally disabled. We are inclined to accept the report of the
Medical Board which assessed the physical disability at 65%. We find that the
Tribunal had taken the notional income at Rs.7000/- per month. The accident took
place in the year 2013 and we are of the view that the notional monthly income
fixed by the Tribunal is meagre and can be enhanced to Rs.9000/-.
14. The age of the first respondent was 37 years at the time of occurrence.
The correct multiplier applicable is 15 is taken and future prospects applicable is
40%, since he was self employed. Thus, the loss of earning power is fixed at
Rs.14,74,200/- [9000+3600 (40x 9000) x12x15x65%]. The compensation towards
pain and suffering awarded by the Tribunal at Rs.50,000/- is meagre and the same
is enhanced to Rs.1,00,000/- in view of the injuries suffered by the first
respondent. We find that the amount of Rs.20,000/- awarded by the Tribunal
towards Nutrition is also meagre. We are of the view, that the compensation
awarded under the said head can be enhanced to Rs.1,00,000/-. The compensation
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C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
awarded by the Tribunal under other heads are confirmed by this Court as we do
not find any infirmity with regard to the same. Thus, the compensation awarded by
the Tribunal is modified as follows:
S.No Description Amount Amount awarded Award
awarded by by this Court confirmed or
Tribunal (Rs) enhanced or
(Rs) granted or
reduced
1. Loss of earning 17,64,000 14,74,200 Reduced
2. Pain and 50,000 1,00,000 Enhanced
Suffering
3. Loss of 50,000 50,000 Confirmed
Amenities
4. Medical 8,25,000 8,25,000 Confirmed
Expenses as per
bill
5. Attended 1,02,000 1,02,000 Confirmed
Charges
6. Transport 20,000 20,000 Confirmed
Expenses
7. Future Medical 1,00,000 1,00,000 Confirmed
Expenses
8. Nutrition 20,000 Rs.1,00,000 Enhanced
Total 29,31,000/- 27,71,200 Reduced by
Rs.1,59,800/-
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C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
15.In the result, Civil Miscellaneous Appeal No.811 of 2018 is partly
allowed by reducing the award amount from Rs.29,31,000/- to Rs.27,71,200/- and
Cross objection No.82 of 2022 is partly allowed by enhancing compensation with
respect to Pain and Suffering and Nutrition. The Appellant-Insurance Company is
directed to deposit the award amount now determined by this Court along with
interest at the rate of 7.5 % and costs, less the amount already deposited, if any, to
the credit of MCOP.No. 287 of 2014 within a period of six weeks from the date of
receipt of a copy of this judgment. On such deposit, the first respondent who is the
cross objector is permitted to withdraw the award amount lying to the credit of
M.C.O.P.No. 287 of 2014. The appellant-Insurance Company is permitted to
withdraw the excess amount lying in the deposit, if the entire award amount has
already been deposited by them. No costs. Consequently, connected miscellaneous
petition is closed.
(V.M.V., J) (S.M., J)
26.10.2022
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C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
Index : Yes / No
vsn
V.M.VELUMANI,J.
and
SUNDER MOHAN,J.
vsn
To
1.The I Additional Judge
Motor Accident Claims Tribunal
District Court, Tiruppur.
2.The Section Officer
VR Section
High Court
Madras.
C.M.A.No. 811 of 2018 and
Cross.Obj.No.82 of 2022 and
C.M.P.No.6751 of 2018
26.10.2022
https://www.mhc.tn.gov.in/judis
C.M.A.No.811 of 2018 and Cros.Obj.No.82 of 2022
https://www.mhc.tn.gov.in/judis
