Madras High Court

P.Arun @ Mariappan vs N.Dhanabal on 8 September, 2022

                                                             C.M.A.Nos3170 of 2017 and 1897 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 08.09.2022

                                                     CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI
                                                   and
                                  THE HONOURABLE MR.JUSTICE V.SIVAGNANAM


                                      C.M.A.Nos.3170 of 2017 and 1897 of 2022
                                           and C.M.P.No.13915 of 2022

                  C.M.A.No.3170 of 2017

                  P.Arun @ Mariappan                                           ... Appellant


                                                       Vs.

                  1.N.Dhanabal


                  2.M/s.Southern Textiles Processors
                  1039/1A, Arasu colony
                  Vangal road, Karur
                  Karur District – 639 004.

                  3.United India Insurance Company Limited
                  Branch Office at No.19/2
                  Navaranga plaza
                  II floor, Opp LGB petrol bunk
                  Covai Road, Karur – 639 002.                                ... Respondents

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

C.M.A.No.1897 of 2022

United India Insurance Co. Ltd.

Having its Branch Office at No.19/2 Navaranga plaza, II floor Opp. LGB petrol bunk Covai road, Karur – 639 002. ... Appellant

Vs.

1.P.Arun @ Mariappan

2.N.Dhanapal

3.M/s.Southern Textiles Processors Having its Office at No.1039/1A Arasu colony Vangal road, Karur Karur District – 639 004. .. Respondents

Common Prayer: These Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 21.01.2016 made in M.C.O.P.No.1 of 2015 on the file of Motor Accident Claims Tribunal, Special District Court, Erode.

                  In C.M.A.No.3170 of 2017

                                     For Appellant      : Mr.R.Nalliyappan
                                     For R3             : Mr.S.Arunkumar
                  In C.M.A.No.1897 of 2022
                                     For Appellant      : Mr.S.Arun Kumar






https://www.mhc.tn.gov.in/judis
                                                                C.M.A.Nos3170 of 2017 and 1897 of 2022

                                            For R1           : Mr.R.Nalliyappan

                                              COMMON JUDGMENT

(Judgment of the Court was delivered by V.M.VELUMANI,J.)

C.M.A.No.3170 of 2017 is filed by the claimant for enhancement of

compensation granted by the Tribunal in the award dated 21.01.2016 made in

M.C.O.P.No.1 of 2015 on the file of Motor Accident Claims Tribunal, Special

District Court, Erode.

C.M.A.No.1897 of 2022 is filed by the Insurance Company against the

award dated 21.01.2016 made in M.C.O.P.No.1 of 2015 on the file of Motor

Accident Claims Tribunal, Special District Court, Erode.

2.Both the appeals arise out of the same accident and same award and

hence, they are disposed of by this common judgment. Parties in these

appeals are referred to by their respective ranks in the claim petition for the

sake of convenience.

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

3.The claimant filed M.C.O.P.No.1 of 2015 on the file of Motor

Accident Claims Tribunal, Special District Court, Erode, claiming a sum of

Rs.40,00,000/- as compensation for the injuries sustained by him in the

accident that took place on 04.06.2014.

4.According to the claimant, on the date of accident i.e., on 04.06.2014

at about 5.40 P.M., while he was driving his Maruthi Omni van bearing

Registration No.TN-36-D-0999 along with his family members, near the bus

stop at Lakshmipuram on the left side of Coimbatore to Karur Main Road

from West to East direction, the 1st respondent, the driver of Maruthi Swift

car bearing Registration No.TN-47-AC-6090 belonging to the 2nd respondent,

who was coming in the opposite direction, attempted to overtake one

antecedent vehicle, drove the same in a rash and negligent manner, came on

the wrong side of the road, dashed against the Omni van driven by the

claimant and caused the accident. In the accident, the claimant and other

occupants of the Omni van sustained injuries. Therefore, the claimant has

filed the above claim petition claiming compensation as against the

respondents 1 to 3, driver, owner and insurer of the Maruthi Swift car

respectively.

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

5.The respondents 1 and 2, driver and owner of the Maruthi Swift car

remained exparte before the Tribunal.

6.The 3rd respondent/Insurance Company, insurer of the Maruthi Swift

car filed counter statement denying the averments made by the claimant and

stated that the accident was not intimated to the 3 rd respondent. The 1st

respondent, driver of the Maruthi Swift car and claimant did not possess

driving license to drive the vehicles at the time of accident and therefore, the

claimant is also responsible for the accident. The owner and insurer of the

Maruthi Omni van driven by the claimant were not made as parties to the

proceedings and hence, the claim petition is bad for non-joinder of necessary

parties. Therefore, the 3rd respondent/Insurance Company is not liable to pay

any compensation to the claimant. The 3rd respondent/Insurance Company

has also denied the age, avocation, income and nature of injuries sustained by

the claimant. In any event, the compensation claimed by the claimant is

excessive and prayed for dismissal of the claim petition.

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

7.Before the Tribunal, the claimant examined himself as P.W.1, one

Kumar, Assistant Manager from Ganga Hospital at Coimbatore, was

examined as P.W.2, Gokulraj, Senior Associate, Rehabilitation Service in

Ottobock Health Care India Pvt. Limited, Coimbatore, was examined as

P.W.3 and 47 documents were marked as Exs.P1 to P47. The 3rd

respondent/Insurance Company did not let in any oral and documentary

evidence.

8.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident has occurred due to rash and negligent

driving by the 1st respondent, driver of Maruthi Swift car belonging to the 2nd

respondent and directed the 3rd respondent/Insurance Company being insurer

of the said car to pay a sum of Rs.35,85,355/- as compensation to the

claimant.

9. Not being satisfied with the amounts awarded by the Tribunal, the

claimant has come out with C.M.A.No.3170 of 2017 seeking enhancement of

compensation. Questioning the quantum of compensation awarded by the

Tribunal, the Insurance Company has come out with C.M.A.No.1897 of 2022.

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

10.The learned counsel appearing for the claimant contended that in

the accident, the claimant sustained fracture in the right shaft of femur, both

bone fracture on the right leg with major crush injury on right foot, due to

which, right leg below knee was amputated. Due to amputation, the claimant

could not continue his job and hence, the Tribunal ought to have awarded

compensation for 100% disability. At the time of accident, the claimant was

doing business in the name of Babu Twisting, Babu fabrics, Sri.Angala

Parameswari Textiles power looms and software developer in computer and

was earning Rs.40,000/- per month. The Tribunal without considering the

same, fixed a meagre sum of Rs.10,000/- per month as notional income of the

claimant. The amounts awarded by the Tribunal under different heads are

meagre and prayed for enhancement of compensation and dismissal of the

appeal filed by the 3rd respondent/Insurance Company.

11.Though the learned counsel appearing for the 3rd

respondent/Insurance Company raised various grounds with regard to

negligence, at the time of arguments, he restricted his arguments only with

regard to quantum of compensation awarded by the Tribunal and contended

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

that the notional income fixed by the Tribunal is excessive. The Tribunal

erred in granting 50% enhancement towards future prospects of the claimant.

The claimant can continue his job even after the accident and therefore, the

compensation granted by the Tribunal adopting multiplier method and fixing

disability of the claimant at 65% is not correct. The amounts awarded by the

Tribunal under different heads are excessive and prayed for setting aside the

award of the Tribunal and allowing the appeal filed by the 3rd

respondent/Insurance Company.

12.The respondents 1 and 2 remained exparte before the Tribunal and

hence, notice to the respondents 1 and 2 is dispensed with.

13.Heard the learned counsel appearing for the claimant as well as the

learned counsel appearing for the 3rd respondent/Insurance Company and

perused the entire materials on record.

14.From the materials on record, it is seen that it is the case of the

claimant that in the accident, he suffered fracture in the right shaft of femur

and fracture of both bones in the right leg with major crush injury in right

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

foot. Due to the injuries, his right leg below knee was amputated and three

doctors, who examined the claimant, assessed the disability at 65%. He has

taken treatment in Ganga Hospital, Coimbatore, from 05.06.2014 to

19.06.2014 and 21.06.2014 to 23.06.2014 and has taken treatment as

out-patient in the same hospital on six occasions and marked the wound

certificate and two discharge summaries as Exs.P7, P12 and P14. Though the

3rd respondent/Insurance Company contended that 65% disability assessed by

the Doctors is excessive, they have not let in any contra evidence to disprove

the evidence of P.W.3/Doctor and Ex.P32 disability certificate. Therefore,

65% disability fixed by the Tribunal is proper. It is the claim of the claimant

that at the time of accident, the claimant was running business in the name of

Babu Twisting, Babu fabrics, Sri.Angala Parameswari Textiles power looms

and software developer in computer and was earning Rs.40,000/- per month.

To prove the same, the claimant marked the Income Tax returns as Exs.P39 to

P41. The Tribunal rejected the same holding that they are not proved by

supportive documents such as day book, ledger book and account book and

fixed a sum of Rs.10,000/- per month as notional income of the claimant.

Considering the date of accident and nature of work done by the claimant, the

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

contention of the 3rd respondent/Insurance Company that notional income

fixed by the Tribunal is excessive, is not acceptable. The claimant was aged

25 years at the time of accident. The Tribunal granted 50% enhancement

towards future prospects of the claimant and applied multiplier '17' and

awarded compensation towards loss of earning power. As per the judgments

of the Hon'ble Apex Court reported in 2017 (2) TN MAC 609 (SC)

[National Insurance Co. Ltd., Vs. Pranay Sethi and others] and 2009 (2)

TNMAC 1 SC (Sarla Verma and others vs. Delhi Transport Corporation

and another), the claimant is entitled to only 40% enhancement towards

future prospects and multiplier applicable is '18'. In addition to the

compensation granted towards loss of earning power, the Tribunal also

awarded a sum of Rs.65,000/- towards disability and Rs.50,000/- towards loss

of amenities, which the claimant is not entitled to. Hence, the same are liable

to be set aside and are hereby set aside. The Tribunal awarded a sum of

Rs.3,58,200/- towards fixation of artificial leg. In addition to that, the

Tribunal awarded Rs.6,10,000/- towards future medical expenses. In view of

the excess amount granted by the Tribunal, the claimant is not entitled to any

enhancement of compensation. The amounts awarded by the Tribunal under

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

all other heads are hereby confirmed. Thus, the compensation awarded by the

Tribunal is modified as follows:

S.No Description Amount Amount Award
awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted or
reduced
1. Transportation 17,500 17,500 Confirmed
2. Extra nourishment 25,000 25,000 Confirmed
3. Pain and suffering 50,000 50,000 Confirmed
4. Medical expenditure 2,20,655 2,20,655 Confirmed
5. TT prosthesis already 3,58,200 3,58,200 Confirmed
purchased
6. Future medical 6,10,000 6,10,000 Confirmed
expenditure
7. Loss of earning 19,89,000 19,89,000 Confirmed
power
8. Disability 65,000 - Set aside
9. Loss of marriage 1,50,000 1,50,000 Confirmed
prospects
10. Loss of amenities 50,000 - Set aside

11. Attendance charges 50,000 50,000 Confirmed

Total 35,85,355 34,70,355 Reduced by
Rs.1,15,000/-

15.With the above modification, C.M.A.No.1897 of 2022 filed by the

https://www.mhc.tn.gov.in/judis C.M.A.Nos3170 of 2017 and 1897 of 2022

Insurance Company is partly allowed and C.M.A.No.3170 of 2017 filed by

the claimant is dismissed. The compensation of Rs.35,85,355/- granted by the

Tribunal is hereby enhanced to Rs.34,70,355/- together with interest at the

rate of 7.5% per annum (interest excluding the amount of Rs.6,10,000/- given

for future medical expenses) from the date of petition till the date of deposit.

The 3rd respondent/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