Madras High Court

The Manager vs Periyannan on 11 August, 2023

                                                                                      C.M.A.No.1607 of 2022

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS


                                                    DATED: 11.08.2023


                                                            CORAM :
                                   THE HONOURABLE MR.JUSTICE SUNDER MOHAN


                                                  C.M.A.No.1607 of 2022
                                                and C.M.P. No.11910 of 2022
                     The Manager
                     Untied India Insurance Company Ltd.
                     Durgabhavani Square, Opp.Railway Station
                     Denkanikottai Road, Hosur(Tk)
                     Krishnagiri District.                                                  .. Appellant
                                                       Vs.
                     1.Periyannan
                     2.S.Pachiappan                                                      .. Respondents
                     Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
                     Vehicles Act, 1988 against the award and decree dated 17.12.2021 made in
                     MCOP.No.65 of 2019 on the file of the Motor Accidents Claims Tribunal
                     (Additional Sub Judge), Hosur.
                                            For Appellant      :      Mr.D.Bhaskaran

                                            For Respondent     :      Mr.C.Prabakaran (R1)
                                                                      R2 – Ex-parte
                                                        JUDGMENT

This Civil Miscellaneous Appeal has been preferred by the

Appellant/Insurance Company, who is the second respondent before the

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Motor Accident Claims Tribunal, challenging the quantum of compensation

awarded by the Tribunal.

2. The first respondent / Periyannan, who is the claimant, has filed the

claim petition claiming a sum of Rs.15,00,000/- as compensation stating that

while he was riding a motorcycle bearing Regn.No.TN-31-K-6676 from

Krishnagiri to Hosur NH44 Road, a Tipper lorry bearing Regn.No.TN-70- F-

8296, which came in an opposite direction in a rash and negligent manner,

had dashed against the two - wheeler bearing Regn.No.TN31 K6676. In the

said accident, the first respondent / Periyannan sustained grievous injuries on

his head and all over the body. Immediately, he was taken to Cauvery

Hospital, Hosur and took treatment in that hospital.

3. The Appellant / Insurance Company had filed a counter denying the

averments made in the claim petition stating that there was no negligence on

the part of the Tipper lorry bearing Regn.No.TN70 F8296 and that the first

respondent / Periyannan, who had driven the two-wheeler at an

uncontrollable speed, had dashed against the Tipper lorry invited the

https://www.mhc.tn.gov.in/judis C.M.A.No.1607 of 2022

accident. Hence, the driver of the second respondent is not responsible for the

accident and the appellant is not liable to pay compensation; that in any event

the compensation claimed was excessive and prayed for dismissal of claim

petition.

4. The wife of the first respondent / Periyannan examined herself as

PW1 and marked Exs.P.1 to P.11. The Disability Certificate issued by the

Medical Board was marked as Ex.C1. On the side of the Appellant /

Insurance Company, RW1 was examined and Ex.R1 to Ex.R4 were marked.

5. The Tribunal, after examining all the relevant documents and

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

driving by the driver of the lorry belonging to the second respondent and

directed the Appellant / Insurance Company to pay Rs.12,27,100/- to the first

respondent.

6. Aggrieved over the said award, the Appellant / Insurance Company

has filed the present appeal.

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7. The learned counsel for the appellant submitted that the injured had

not established that he had suffered Functional Disability to the extent of

40%. Though the injured was examined and Ex.C1 certificate was issued by

the Medical Board, the same does not indicate that the first respondent had

suffered Functional Disability. The nature of injuries suffered by the first

respondent and the treatment taken by him would show that the Functional

Disability assessed by the Tribunal is erroneous. In any event, the learned

counsel submitted that the Tribunal ought not to have adopted Multiplier 13

for awarding compensation. Hence, the learned counsel prayed for reducing

the compensation awarded by the Tribunal.

8. Per contra, the learned counsel for the first respondent submitted that

the first respondent was unable to pursue his avocation and in fact, the Claim

Petition was filed through his wife; that the Disability certificate issued by

the Medical Board was rightly accepted by the Tribunal, while awarding

compensation by adopting the Multiplier method; and that there is no reason

to interfere in the said finding of the Tribunal and hence prayed for dismissal

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of the appeal.

9. The only question involved in the instant appeal is whether the

compensation awarded by the Tribunal is just and reasonable.

10. On perusal of the records, it is seen that the first respondent has not

examined himself before the Tribunal. The wife of the first respondent was

examined as P.W.1. According to P.W.1, the first respondent was unable to

pursue the avocation after the accident. The discharge summary was marked

as Ex.P2, Wound Certificate was marked as Ex.P3 and the Disability

Certificate of the Medical Board was marked as Ex.C1. The discharge

summary reveals that the first respondent's condition improved after the

management in the hospital and he was discharged in stable condition. The

disability certificate issued by the Medical Board also confirms the fact that

the first respondent was under conservative treatment and that he was having

headache and loss of memory. From the Medical records, it cannot be

inferred that the injured had suffered Functional Disability to the extent of

40% and consequential loss of earning capacity. Ex.C1, the disability

certificate issued by the Medical Board shows that the injured had 40%

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Partial permanent disability. In the absence of any evidence, apart from the

interested testimony of P.W.1, the Tribunal erred in fixing the percentage of

disability fixed by the Medical Board as Functional Disability. However,

considering the Discharge Summary, nature of injuries mentioned in the

Wound certificate and the injuries noted by the Medical Board in Ex.C1, this

Court is of the view that it would be just and reasonable to fix the Functional

Disability at 25%. The Tribunal had fixed Rs.8,000/- as Notional income.

Considering the facts and circumstances of the case, the fixing of Notional

income cannot be faulted and hence, the same is confirmed. Thus, the first

respondent is entitled to compensation under the Head of Disability as

follows:

Rs.8,000/- x 12 x17 x25/100 = Rs.4,08,000/-

Future Prospects = 3200 X 12 X 17 X 25/100 = 1,63,200/-

11. The learned counsel for the appellant is unable to point out any

error in the award of compensation under the other heads. However, this

Court finds that the Tribunal had awarded Rs.4,200/- under the Head

Attendant Charges. Considering the nature of injury and period of treatment,

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the injured is entitled to Rs.20,000/- under the said head. Thus, the award is

modified as follows:-


                        Heads                    Compensation awarded by    the Compensation awarded by
                                                 Tribunal                       this Court
                        Disability               Rs.6,52,800.00/-              Rs.4,08,000.00/-
                        Future Prospects         Rs.2,61,120.00/-              Rs.1,63,200.00/-
                        Pain and Suffering       Rs.   40,000.00/-             Rs. 40,000.00/-
                        Extra nourishment        Rs.   10,000.00/-             Rs. 10,000.00/-
                        Transport and Hospital Rs.     10,000.00/-             Rs. 10,000.00/-
                        Damages to Clothes       Rs.    1,000.00/-             Rs.   1,000.00/-
                        Medical Expenses         Rs.2,23,000.00/-              Rs.2,23,000.00/-
                        Attendant Charges        Rs.     4,200.00/-            Rs.20,000.00/-
                        Future           Medical Rs.    10,000.00/-            Rs.10,000.00/-
                        Expenses
                        Loss of Amenities        Rs.15,000.00/-                Rs.15,000.00/-
                        Total                    Rs.12,27,120.00/-             Rs.9,00,200.00/-

12. In the result, this Civil Miscellaneous Appeal is partly allowed by

reducing the compensation awarded by the Tribunal from Rs.12,27,120/- to

Rs.9,00,200/- together with interest @ 7.5% from the date of petition till the

date of deposit. The appellant is directed to deposit the compensation

awarded by this Court along with interest and costs, less the amount already

deposited if any to the credit of MCOP.No.65 of 2019 on the file of the

Motor Accidents Claims Tribunal (Additional Sub Court), Hosur within a

period of six weeks from the date of receipt of copy of this judgment. On

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such deposit, the first respondent is permitted to withdraw the award amount

along with interest and costs after adjusting the amount if any already

withdrawn. The appellant /insurance company is permitted to withdraw the