Madras High Court

M/S.United India Insurance vs G.Senthilkumar on 14 August, 2023

                                                                                  C.M.A.No.841 of 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 14.08.2023

                                                         CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                                    C.M.A.No.841 of 2022
                                                  and C.M.P.No.6082 of 2022

                     M/s.United India Insurance
                     Company Ltd.,
                     Divisional Office No.1,
                     NK Complex, Hubli – 580 023
                     Karnataka State,
                     Branch Office,
                     No.2, Dr.Sankaran Road,
                     Namakkal District.                                        ... Appellant

                                                           Versus
                     1.G.Senthilkumar

                     2.M/s.The Managing Director,
                       VRL Logistics Ltd.,
                       Regd. And Admn. Office,
                       NH-4, Bengaloru Road,
                       Varur, Hubli – 581 207,
                       Karnataka State.                                         ... Respondents
                     PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, against the judgment and decree dated 27.09.2021
                     passed in M.C.O.P.No.1310 of 2016, by the Motor Accident Claims
                     Tribunal, Chief Judicial Magistrate, Namakkal.
                                  For Appellant          : Mrs.R.Sree Vidhya
                                  For R1                 : Mr.C.Thanga Raja
                                  For R2                 : Mr.L.Rajasekar

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                                                                                  C.M.A.No.841 of 2022

                                                          JUDGMENT

This appeal has been filed by the appellant/claimant challenging

the compensation awarded by the Tribunal in M.C.O.P.No.1310 of 2016

dated 27.09.2021 .

2.The claim petition was filed stating that on 27.07.2015 at about

3.00 p.m., the 1st respondent was standing in front of the Truck bearing

Reg No. MH 12 HB 3350 for giving signal and while the said Truck was

about to turn, another Truck bearing Registration No.KA 24 B 8030

driven by its driver in a rash and negligent manner, dashed against the 1st

respondent and caused the accident. Due to the said accident, the 1st

respondent sustained grievous injuries all over his body and admitted in

hospital for more than 30 days and he spent more than Rs.10,00,000/-.

Thus, he was entitled for compensation.

3.The appellant/Insurance Company filed a counter denying all the

averments made in the claim petition and stated that the version of

accident narrated by the 1st respondent is unbelievable; that the driver of

the truck bearing Regn. No. KA 25 B 8030 is not impleaded as party to

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

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C.M.A.No.841 of 2022

necessary parties. Thus, they prayed for dismissal of the claim petition.

4.The 2nd respondent remained ex-parte before the Tribunal.

5.Before the Tribunal, the 1st respondent examined three witnesses

on his side and marked Ex.P1 to P31. On behalf of the

appellant/Insurance Company no witness was examined. The Disability

certificate issued by the District Medical Board is marked as Ex.C1.

6.The Tribunal after considering the oral and documentary

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

driving by the driver of the Truck bearing Registration No. KA 25 B

8030 and being the insurer of the offending vehicle, directed the

appellant/Insurance Company to pay a sum of Rs.27,77,249/- to the 1 st

respondent.

7.Aggrieved over the award passed by the Tribunal, the

appellant/Insurance Company has filed the present appeal challenging

the quantum of compensation.

8.Learned counsel for the appellant/Insurance Company submitted https://www.mhc.tn.gov.in/judis

C.M.A.No.841 of 2022

that the Tribunal had awarded excessive compensation. Though the 1st

respondent had not established his income, the Tribunal fixed the

notional income at Rs.20,000/- per month. The Tribunal had erroneously

accepted the income shown in the claim petition without any basis.

Further, Ex.C1-disability certificate issued by the Medical Board would

show that the respondent suffered 60% partial permanent disability. The

Tribunal has not assessed the functional disability for the purpose of

adopting multiplier method. The nature of injuries and the disability

certificate would show that the functional disability and consequential

loss of income could not have been 60%. Therefore, learned counsel

prayed for reduction of compensation awarded by the Tribunal.

9.Per contra, learned counsel appearing for the 1st respondent

submitted that the 1st respondent was working as driver. His employers

were examined as P.W.2 and P.W.3. Ex.P.23 - salary slip and other

documents were marked to show that he was earning Rs.950/- per day.

Therefore, the Tribunal was right in fixing notional income at

Rs.20,000/- per month. Learned counsel further submitted that

considering the avocation of the 1st respondent and the nature of injuries,

the functional disability assessed by the Tribunal is just and reasonable https://www.mhc.tn.gov.in/judis

C.M.A.No.841 of 2022

and there is no reason to interfere with the same and prayed for dismissal

of the appeal.

10.The question involved in the instant appeal is whether the

Tribunal had awarded just and reasonable compensation.

11.The appellant/Insurance Company had not challenged the

finding with regard to negligence. The accident took place on

27.07.2015. The 1st respondent had marked Ex.P29-statement of

accounts, Ex.P23-salary slip issued by his employer and had examined

P.W.3-The Manager of firm in which he was employed, to prove his

income. P.W.3 in his evidence has deposed that the 1 st respondent was

not earning a regular income. His evidence would show that in the month

of May 2015, the 1st respondent has earned Rs.150/-, similarly in June -

Rs.9,586, in July – Rs.21,250/- and in the same month on 08.07.2015 –

Rs.2,182/- and on 15.07.2015 – Rs. 4,770/-. Therefore, in the absence of

acceptable evidence to prove the income of the 1 st respondent, the

Tribunal had to fix a notional income. However, it is seen that the

notional income fixed by the Tribunal is excessive. The accident took

place in the year 2015. Considering the age, avocation of the deceased, https://www.mhc.tn.gov.in/judis

C.M.A.No.841 of 2022

the year of accident and the evidence on record, this Court is of the view

that it would be just and reasonable to fix the notional income as

Rs.15,000/- per month.

12.The 1st respondent suffered injuries on both legs. He was

working as a driver. Considering the avocation and the injuries suffered

there cannot be any doubt that he suffered functional disability.

Therefore, the adoption of multiplier method cannot be faulted. The

Tribunal had accepted Ex.C1-disability certificate issued by the Medical

Board. The Medical Board has assessed disability at 60%. However, the

functional disability of the 1st respondent was not assessed by the

Medical Board. The report of the Medical Board had suggested that the

1st respondent had not suffered total disability or functional disability to

the extent of 60%. The Medical Board had stated that he can perform

work by pulling and pushing, manipulating by fingers, lifting and by

kneeling and crouching.

13.Considering the nature of injuries, avocation of the respondent

and the disability certificate issued by the Medical Board, this Court is of

the view that it would be just and reasonable to fix the functional https://www.mhc.tn.gov.in/judis

C.M.A.No.841 of 2022

disability at 45%. The multiplier method adopted by the Tribunal is just

and reasonable and the same is confirmed. Thus, the award of

compensation under the head pecuniary loss is computed as follows:

Rs.21,000/- (Rs.15,000/- + 40%) X 17 X 12 X 45/100 =

Rs.19,27,800/-.

The amount awarded by the Tribunal under other heads is just and

reasonable and hence, the same are confirmed. Thus, the compensation

awarded by the Tribunal is modified as follows:

                        S.         Description         Amount           Amount            Award
                        No                            awarded by      awarded by       confirmed or
                                                       Tribunal        this Court      enhanced or
                                                         (Rs)             (Rs)           granted
                        1.         Pecuniary Loss         24,48,000      19,27,800       Reduced
                        2.         Pain and                  50,000        50,000       Confirmed
                                   Suffering
                        3.         Medical Expenses        2,57,249       2,57,249      Confirmed
                        4.         Transportation             7,000         7,000        Confirmed
                        5.         Nutrition                 10,000        10,000       Confirmed
                        6.         Loss of Clothing           5,000         5,000       Confirmed
                                   and Ornaments
                                   Total                  27,77,249      22,57,049      Reduced by
                                                                                       Rs.5,20,200/-

14.With the above modification, this Civil Miscellaneous Appeal

is partly allowed and the compensation awarded by the Tribunal at

Rs.27,77,249/- is hereby reduced to Rs.22,57,049/- together with interest

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C.M.A.No.841 of 2022

at 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 modified award amount now determined by this

Court along with interest and costs, less the amount already deposited, if

any, within a period of four (4) weeks from the date of a receipt of copy

of this Judgment. On such deposit the 1st respondent/claimant is

permitted to withdraw the entire award amount, along with interest and