Madras High Court
The Chief Executive Claim Officer vs Kannan on 12 September, 2022
C.M.A. Nos.1632 of 2021
and 1386 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.1632 of 2021
and C.M.P.No.8629 of 2021
and C.M.A.No.1386 of 2022
C.M.A.No.1632 of 2021
The Chief Executive Claim Officer,
ICICI Lombard General Insurance Company Limited,
No.84/85, Wall Tax Road,
Arihant Plaza, Chennai 600 003. .. Appellant
Vs.
1.Kannan
(rep. by mother and next friend, Sivakami)
2.N.Sriramalu .. Respondents
(R2 remained exparte before the Tribunal.
Hence notice is dispensed with)
C.M.A.No.1386 of 2022
Kannan
(rep. by mother and next friend, Sivakami) .. Appellant
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
Vs.
1.N.Sriramalu
2.The Chief Executive Claim Officer,
ICICI Lombard General Insurance Company Limited,
No.84/85, Wall Tax Road,
Arihant Plaza, Chennai 600 003. .. Respondents
(R1 remained exparte before the Tribunal.
Hence notice is dispensed with)
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the judgment and decree dated
20.11.2019, made in M.C.O.P. No.20 of 2009, on the file of the Sub Court,
(Motor Accident Claims Tribunal) Gingee.
(In C.M.A.No.1632/2021)
For Appellant : Mr.K.Poomalai
For R1 : Mr.M.Santhana Raman
(In C.M.A.No.1386/2022)
For Appellant : Mr.M.Santhana Raman
For R2 : Mr.K.Poomalai
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
COMMON JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
C.M.A.No.1632 of 2021 has been filed by the appellant-Insurance
Company questioning the quantum of compensation granted by the Tribunal
in the judgment and decree dated 20.11.2019, made in M.C.O.P. No.20 of
2009, on the file of the Sub Court, (Motor Accident Claims Tribunal) Gingee.
C.M.A.No.1386 of 2022 has been filed by the appellant-claimant
seeking enhancement of the compensation granted by the Tribunal in the said
award.
2.Both the appeals arise out of the same accident and same award and
hence, disposed of by this common judgment.
3.For the sake of convenience, the parties are referred to as per their
rank in the claim petition.
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
4.The claimant, represented by his mother viz., Sivakami, filed
M.C.O.P. No.20 of 2009, on the file of the Sub Court, (Motor Accident Claims
Tribunal) Gingee, claiming a sum of Rs.40,00,000/- as compensation for the
injuries sustained by him in the accident that took place on 19.09.2008.
5.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by driver of the Tipper Lorry owned by the 1st respondent and directed
the 2nd respondent-Insurance Company to pay a sum of Rs.21,79,313/- as
compensation to the claimant.
6.Questioning the quantum of compensation granted by the Tribunal in
the said judgment and decree dated 20.11.2019, made in M.C.O.P. No.20 of
2009, the 2nd respondent-Insurance Company has come out with
C.M.A.No.1632 of 2021.
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
7.Not being satisfied with the amounts awarded by the Tribunal, the
claimant has filed C.M.A.No.1386 of 2022, seeking enhancement of
compensation.
8.The learned counsel appearing for the 2nd respondent-Insurance
Company contended that in the accident, the claimant has not sustained any
scheduled injury. In such circumstances, the Tribunal erroneously accepted
the 65% disability assessed by the Medical Board, which is on higher side and
adopted multiplier method in awarding compensation towards disability. As
per Ex.R1 – clarification obtained from the Apollo Hospital, it is seen that out
of the actual medical expenses of Rs.5,60,958/-, the claimant has availed a
sum of Rs.1,99,999.79/- towards reimbursement from the Star Health
Insurance and paid only a sum of Rs.3,60,958/-. The Tribunal failed to note
that the amounts mentioned at Serial Nos.13, 15 & 16 of Ex.P7 are only
estimation bills and not the expenses incurred by the claimant. The Tribunal
ought to have considered the evidence of R.W.1 – Doctor and Ex.R1, which is
the actual medical bill, for the expenses incurred by the claimant. The
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
Tribunal erred in taking into consideration Ex.P7 in total, without excluding
the estimation bills. The amounts awarded by the Tribunal under the heads of
pecuniary loss, medical expenses, loss of amenities and pain and suffering are
excessive and prayed for reducing the same and dismissal of C.M.A.No.1386
of 2022, filed by the claimant.
9.The learned counsel appearing for the claimant contended that in the
accident, the claimant sustained multiple injuries, fracture in his femur bone
and has taken treatment as in-patient at Hospital for about 52 days. The
Medical Board has assessed and certified that the claimant suffered 65%
locomotor disability. At the time of accident, the claimant was working as a
Mason and was earning a sum of Rs.500 - Rs.600/- per day and not less than
Rs.15,000/- per month. Due to the injuries sustained in the accident, he had
lost his earning capacity completely. The Tribunal having found that the
claimant lost his earning capacity totally, erred in awarding only a meagre
sum of Rs.9,82,800/- towards future loss of earning. The amounts awarded by
the Tribunal towards pain and suffering is meagre. The total compensation
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
awarded by the Tribunal is meagre and prayed for enhancement of the
compensation and dismissal of C.M.A.No.1632 of 2021 filed by the 2nd
respondent-Insurance Company.
10.Heard the learned counsel appearing for the 2nd respondent-
Insurance Company as well as the claimant and perused the entire materials
available on record.
11.From the materials on record, it is seen that it is the case of the
claimant that in the accident, he sustained fracture in his femur bone apart
from multiple injuries all over the body and took treatment as in-patient at the
Apollo Hospital from 19.09.2008 to 09.11.2008, for a period of 52 days. He
has marked the discharge summary as Ex.P5 to prove the same. The Medical
Board has assessed and certified that the claimant sustained 65% locomotive
disability. Due to the injuries sustained, the claimant is bedridden and is
depending upon others to meet even his day-to-day activities. The Tribunal
considering the disability certificate issued by the Medical Board, which is
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
marked as Ex.C1 and the nature of injuries sustained by the claimant,
accepted the percentage of disability sustained by the claimant as 65% and
adopted multiplier method in awarding compensation towards loss of earning
capacity. The same is in order. It is the case of the claimant, that at the time of
accident, he was working as a Mason and was earning a sum of Rs.500 –
Rs.600/- per day. He has marked Ex.P8 to prove his avocation. In the absence
of any documentary evidence with regard to income of the claimant, the
Tribunal fixed a sum of Rs.5,000/- per month as notional income of the
claimant. The accident is of the year 2008. Considering the year of accident
and nature of work done by the claimant, the notional income fixed by the
Tribunal is enhanced to Rs.8,000/- per month, including future prospects. The
claimant was aged 22 years at the time of accident. The Tribunal, following
the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC
Supreme Court [Sarla Verma & others vs. Delhi Transport Corporation &
another], rightly applied the multiplier '18'. Hence, fixing the monthly income
at Rs.8,000/-, including future prospects and applying multiplier '18', the
amount awarded by the Tribunal towards loss of earning capacity for 65%
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
disability is modified to Rs.11,23,200/- [Rs.8,000/- x 12 x 18 x 65%].
12.As regards the grounds raised by the 2nd respondent-Insurance
Company on the medical expenses incurred by the claimant, on a perusal of
Ex.P7 – medical bills which amounts to Rs.11,60,003.40/-, it is seen that the
Serial Nos.13, 15 & 16 amounting to sum of Rs.78,434,70/-, Rs.2,52,142.42/-
and Rs.1,92,057.88/- respectively are only estimation bills and not the
medical expenses incurred by the claimant and Serial No.53 worth Rs.639/- is
the amount returned by the Pharmacy to the claimant. Also, as per Serial
No.14, a sum of Rs.1,99,999.79/- has been remitted by the Star Health
Insurance to the claimant towards insurance. In addition to this, the Tribunal
has rightly found that some of the bills dated 02.12.2008, 09.11.2008,
12.11.2008 and 07.01.2009 worth Rs.1,000/-, Rs.500/-, Rs.1,000/- and
Rs.822/- respectively are not in order. Hence, after deducting the amounts
mentioned in the Serial Nos.13, 14, 15 & 16 from the total sum of
Rs.11,60,003.40/-, the claimant is entitled to only Rs.4,33,407.61/-
[Rs.11,60,003.40 – 7,26,595.79/-] towards medical expenses as per Ex.P7. As
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C.M.A. Nos.1632 of 2021
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per Ex.P9 – medical bills, the claimant has incurred a sum of Rs.49,831/-
towards medical expenses, as rightly held by the Tribunal. Hence, the amount
granted by the Tribunal towards medical expenses is modified to
Rs.4,83,238.61/- [Rs.4,33,407.61 + Rs.49,831], which is rounded off to
Rs.4,83,240/-. The amounts awarded by the Tribunal under other heads are
just and reasonable and hence, the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court (Rs) enhanced or
granted
1. Loss of earning capacity 9,82,800/- 11,23,200/- Enhanced
2. Pain and sufferings 50,000/- 50,000/- Confirmed
3. Extra nourishment 20,000/- 20,000/- Confirmed
4. Attendant charges 10,000/- 10,000/- Confirmed
5. Medical expenses 10,06,513/- 4,83,240/- Reduced
6. Transportation charges 10,000/- 10,000/- Confirmed
7. Loss of amenities 1,00,000/- 1,00,000/- Confirmed
Total 21,79,313/- 17,96,440/- Reduced by
Rs.3,82,873/-
13.In the result, C.M.A.No.1632 of 2021 is partly allowed in respect of
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
the head - medical expenses and C.M.A.No.1386 of 2022 is partly allowed in
respect of the head - loss of earning capacity. The compensation awarded by
the Tribunal at Rs.21,79,313/- is modified and reduced to Rs.17,96,440/-
together with interest at the rate of 7.5% per annum from the date of petition
till the date of deposit, excluding 865 days as per the order made in
I.A.No.342 of 2015. The 2nd respondent-Insurance Company is directed to
deposit the award amount, now determined by this Court, along with interest
and costs, within a period of eight weeks from the date of receipt of a copy of
this judgment, to the credit of M.C.O.P. No.20 of 2009. On such deposit, the
claimant 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, by filing necessary applications before the Tribunal. The
2nd respondent-Insurance Company is permitted to withdraw the excess
amount, lying in the credit of M.C.O.P. No.20 of 2009, if the entire award
amount has already been deposited by them. It is made clear that if the
claimant has already withdrawn the entire award amount, the 2 nd respondent-
Insurance Company is not entitled to recover the same from the claimant.
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (T.V.T.S., J)
12.09.2022
(gsa)
To
1.The Subordinate Judge,
(Motor Accident Claims Tribunal),
Gingee.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. Nos.1632 of 2021
and 1386 of 2022
V.M.VELUMANI,J.
and
T.V.THAMILSELVI,J.
(gsa)
C.M.A.No.1632 of 2021
and C.M.A.No.1386 of 2022
12.09.2022
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