Madras High Court
Reliance General Insurance Co. ... vs Rajavel on 22 August, 2023
C.M.A.No.1932 of 2023
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.08.2023
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS JUSTICE R.KALAIMATHI
C.M.A.No.1932 of 2023
and
C.M.P.No.18742 of 2023
Reliance General Insurance Co. Ltd.,
Reliance Towers, 6th Floor,
Haddows Road, Chennai. ...Appellant
Vs.
1.Rajavel
2.Vignesh ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the decree and judgment dated 29th November
2022 passed in MCOP.No.933 of 2017, by the learned Motor Accident
Claims Tribunal, II Additional Sub-Court, Cuddalore.
For Appellant : Mrs.C.Bhuvanasundari
*******
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.1932 of 2023
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
The challenge in this appeal is to the grant of compensation of a
sum of Rs.17,89,133/- for the permanent disability suffered by the claimant,
as a result of the injuries in a motor accident that occurred on 20.09.2016.
2. According to the claimant, when he was riding as a pillion rider
in a two wheeler from Cuddalore-Thirukoviloor bypass road, the car bearing
Registration No.TN-19-L-8211 driven in a rash and negligent manner came
from behind and hit against the two wheeler, resulting in the claimant
suffering serious injuries in his right leg. After taking initial treatment in the
Government Medical College Hospital, Mundiyampakkam, he was admitted
in JIPMER Hospital, Puducherry and treated as in-patient between
02.10.2016 and 19.10.2016,. Despite proper treatment given, the right leg of
the claimant was amputated below the knee. Claiming that the petitioner,
who was aged about 46 years at the time of accident, was earning
Rs.10,000/- by working as an agricultural labourer, he sought for a
compensation of Rs.50,00,000/-.
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C.M.A.No.1932 of 2023
3. The claim was resisted by the Insurance Company contending
that the accident did not occur in the manner suggested by the claimant. It
was contended that there were three persons travelling in the two wheeler
and therefore claimant has also contributed to the accident. It is the further
contention of the Insurance Company that the disability claimed is on the
higher side and the compensation claimed is excessive.
4. At trial, the injured claimant was examined as PW1 and Exs.A1
to A11 were marked. The Insurance Company did not chose to let in any
evidence and the owner of the car remained absent.
5. The disability certificate issued by the Medical Board was
marked as Ex.C1. On a consideration of the evidence on record, the
Tribunal held that the accident occurred due to the rash and negligent
driving of the car. It drew support from the First Information Report that
was marked as Ex.P1 and the evidence of PW1.
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C.M.A.No.1932 of 2023
6. On the quantum, the Tribunal found that the disability caused
due to the amputation was 85% as certified by the Medical Board. The
Tribunal took into account the fact that the claimant was an agricultural
labourer and the amputation of one leg below the knee would have very
serious impact on his avocation.
7. The Tribunal took the monthly income at Rs.9,000/-, added
25% towards future prospects, applied the multiplier '14' and arrived at the
total loss of earning capacity at Rs.16,06,500/-. The Tribunal added a sum
of Rs.60,000/- towards pain and sufferings, Rs.30,000/- towards loss of
amenities, Rs.20,000/- towards extra nourishment, Rs.20,000/- towards
attendant charges, Rs.20,000/- towards transport to hospital, Rs.17,633/-
towards medical bill and Rs.15,000/- towards future medical expenses.
Thus, the total compensation awarded by the Tribunal worked out to
Rs.17,89,133/-. Aggrieved the Insurance Company is on appeal.
8. We have heard Mrs.C.Bhuvanasundari, learned counsel
appearing for the appellant/ Insurance Company.
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C.M.A.No.1932 of 2023
9. Mrs.C.Bhuvanasundari, learned counsel appearing for the
appellant would vehemently contend that the Tribunal should have deducted
certain percentage towards contributory negligence in as much as three
people were travelling in the motorcycle at the time of the accident.
10. We are unable to accept the said submission of the learned
counsel in the absence of evidence on the side of Insurance Company. The
very fact that three people travelled in a motor cycle will not be a cause for
attributing negligence. The contributory negligence is after all a question of
fact which has to be proved as any other fact. If the Insurance Company
wants to raise a plea contributory negligence it must let in evidence on the
manner in which the accident had occurred.
11. PW1, the injured claimant himself has spoken about the
manner in which the accident occurred and there is no cross-examination of
him on the aspect of three people travelling in the motor cycle. We are
therefore unable to conclude that there was contributory negligence on the
part of the claimant himself.
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C.M.A.No.1932 of 2023
12. On the quantum, the learned counsel would vehemently
contend that the injury suffered, being amputation below the knee, the
Tribunal was not right in fixing the quantum of disability at 85% instead of
50%. She would seek to rely upon the percentage of disability fixed under
the Employees Compensation Act. We do not think we could adopt that as a
safe method for fixing the quantum of disability. Each injury may result in
different percentage of disability depending upon the avocation of the
person. If he is a skilled worker, even loss of a thumb or few fingers in the
right hand would result in 100% disability. For an unskilled labourer, loss
of one leg below the knee will have a massive effect on his avocation and
his earning power would be substantially reduced. For a Computer
professional or a Lawyer, loss of a limb may not have any effect on their
earning power. Therefore, we cannot go by the fixed quantum of disability
depending on the injury or loss of limb suffered by the injured. The same
will vary in accordance with the avocation of the injured.
13. Adverting to the case on hand, the injured claimant was an
agricultural labourer and loss of right leg below the knee would definitely
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C.M.A.No.1932 of 2023
have a serious impact. We are therefore unable to fault the Tribunal for
having fixed the percentage of disability at 85%. Adoption of income at
Rs.9,000/- per month cannot be considered to be too high. The
compensation on the other heads is also reasonable.
14. We therefore do not find any ground to interfere with the
award of the Tribunal. The appeal therefore fails and it is accordingly
dismissed. No costs. Consequently, the connected miscellaneous petition is
closed.
(R.S.M.,J.) (R.K.M.,J.)
dsa 22.08.2023
Index :Yes/No
Internet :Yes/No
Neutral Citation :Yes/No
Speaking order /Non-Speaking order
To
The Motor Accident Claims Tribunal,
II Additional Sub-Court, Cuddalore.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1932 of 2023
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
dsa
C.M.A.No.1932 of 2023
22.08.2023
https://www.mhc.tn.gov.in/judis
