Madras High Court

The Branch Manager vs N.Sathish (Now Mentally ... on 23 August, 2023

                                                               C.M.A.Nos.1559 of 2022 and 1502 of 2023

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 23.08.2023

                                                      CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                       C.M.A. Nos. 1559 of 2022 and 1502 of 2023
                                             and C.M.P. No.11550 of 2022

                     C.M.A.No.1559 of 2022

                     The Branch Manager,
                     United India Insurance Company Ltd,
                     having its Micro Office at No. 74/A-2,
                     Sathya Medical Complex, Vaniyambadi Road,
                     Tirupattur Town and Taluk,
                     Vellore District-632 601.                                   ... Appellant

                                                            Versus


                     1.N.Sathish (Now mentally disorder)
                       Represented by his Father and natural
                       guardian C.Narayanappa.

                     2.M.Arun Kumar                                             ... Respondents

C.M.A.No.1502 of 2023

N.Sathish (Now mentally disorder) Represented by his Father and natural guardian C.Narayanappa. ... Appellant

Versus

1.M.Arunkumar

https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1559 of 2022 and 1502 of 2023

2.The Branch Manager, United India Insurance Company Ltd, having its Micro Office at No. 74/A-2, Sathya Medical Complex, Vaniyambadi Road, Tirupattur Town and Taluk, Vellore District-632 601. ... Respondents

COMMON PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 15.07.2021 passed in M.C.O.P. No.522 of 2018, by the Motor Accident Claims Tribunal, Additional District Judge, Hosur, Krishnagiri District.



                                  In C.M.A.No.1502 of 2023
                                  For Appellant               : Mr.M.Sivakumar

                                  For R1                      : Mr.S.Shakila Banu
                                  For R2                      : Mr.D.Bhaskaran

                                  In C.M.A.No.1559 of 2023

                                  For Appellant               : Mr.D.Bhaskaran

                                  For R1                      : Mr.M.Sivakumar
                                  For R2                      : Mr.S.Shakila Banu

                                                   COMMON JUDGMENT

C.M.A.No.1502 of 2023 has been filed by the appellant/claimant

challenging the contributory negligence as well as quantum of

compensation awarded by the Tribunal in M.C.O.P.No.522 of 2018,

dated 15.07.2021.

https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1559 of 2022 and 1502 of 2023

C.M.A.No.1559 of 2022 has been filed by the appellant/Insurance

Company challenging the compensation awarded by the Tribunal in

M.C.O.P.No.522 of 2018, dated 15.07.2021.

2.For the sake of convenience, parties are referred as per their rank

in the claim petition.

3.The claim petition was filed stating that on 28.11.2017, at about

09.30 p.m., when the claimant was crossing the road at Addakurukki

Village bus stop, Hosur to Krishnagiri N.H.Road from North to South, a

Bajaj Pulsar motorcycle bearing Regn No. TN 23 BX 6088, riden by its

rider one M.Rajesh from Hosur in a rash and negligent manner, dashed

against the claimant; that due the said accident, the claimant sustained

grievous injuries in his head, right foot, multiple abrasion over the face

and multiple injuries all over the body; that thus, the claimant was

entitled for compensation.

4.The 1st respondent/owner of the offending vehicle remained ex-

parte before the Tribunal.

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C.M.A.Nos.1559 of 2022 and 1502 of 2023

5.The 2nd respondent/Insurance Company filed a counter denying

all the averments made in the claim petition and stated that at the time of

accident the claimant was under the influence of alcohol and contributed

to the accident; that the rider of the motorcycle did not possess valid

driving license at the time of accident; that hence, the 2nd respondent is

not liable to pay any compensation to the claimant; that in any case, the

compensation claimed was excessive and prayed for dismissal of the

claim petition.

6.Before the Tribunal, the claimant examined one witness and

marked Ex.P.1 to Ex.P.15 on his side. On behalf of the 2nd respondent,

R.W.1 was examined and Ex.R1 and Ex.R2 were marked.

7.The Tribunal after considering the oral and documentary

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

riding by the rider of the motorcycle and fixed 15% contributory

negligence on the part of the claimant who was under the influence of

alcohol at the time of accident and directed the 2 nd respondent, being the

insurer of the 1st respondent vehicle to pay a sum of Rs.5,72,404/-, being

85% of the award amount, as compensation to the claimant. https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1559 of 2022 and 1502 of 2023

8.Aggrieved over the award passed by the Tribunal, the claimant

filed C.M.A.No.1502 of 2023, questioning the contributory negligence

fixed on him and for enhancement of compensation and the 2 nd

respondent has filed C.M.A.No.1559 of 2022, challenging the quantum

of compensation awarded by the Tribunal.

9.The learned counsel for the 2nd respondent submitted that the

Tribunal had after holding that the claimant also contributed to the

accident, fixed only 15% as contributory negligence; that the evidence

discloses that the claimant was main cause for the accident; that the

Tribunal had also ignored the evidence of RW1, who had clearly stated

that the medical bills produced by the claimant were fake and ought not

to have awarded a sum of Rs.3,91,416/- towards “medical expenses”; that

therefore, the learned counsel sought for reduction in the compensation

of amount awarded by the Tribunal.

10.The learned counsel for the claimant per contra submitted that

the Tribunal had erroneously fixed contributory negligence on the

claimant without any evidence suggesting the same. Further the injuries

suffered by the claimant would show that he is suffering from the mental https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1559 of 2022 and 1502 of 2023

disorder and he was unable to pursue any avocation; that the Tribunal

ought to have adopted multiplier method for awarding compensation to

the claimant; that RW1 had admitted that the claimant has spent a sum of

Rs.2,06,000/- towards medical expenses and hence, it cannot be said that

the claimant has produced fake bills and that the compensation awarded

under other heads are meagre and hence, sought for enhancement of

compensation.

11.Heard the learned counsel for the 1st respondent/owner of the

vehicle.

12.The questions involved in the instant appeals are:

(a) Whether the Tribunal was right in fixing 15% contributory

negligence on the claimant?

(b) Whether the compensation awarded by the Tribunal is just and

reasonable?

13.As regards the first question, it is seen that the claimant had

examined PW1-father of the claimant to prove the manner of accident.

The driver of the offending vehicle was not examined. The evidence https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1559 of 2022 and 1502 of 2023

discloses that the claimant had attempted to cross the road where there

was no pedestrian crossing. Ex.P3-discharge summary also shows that

the claimant was under the influence of alcohol. Considering the above

facts, this court is of the view that the Tribunal was right in fixing the

contributory negligence at 15% on the claimant and no interference is

called for in the said finding.

14.As regards the second question, quantum of compensation, it is

seen that the Medical Board had assessed the disability of the claimant as

60% partial permanent. Ex.P3-discharge summary shows that claimant

had sustained injuries of RTA with difuse acxonal injury, Left

hemiparesis and Left clavicle fracture. He was treated as an inpatient for

nearly 32 days. Considering the nature of injuries, the disability suffered

by the claimant and his avocation as Cable TV Operator prior to the

accident, this Court is of the view that the claimant had suffered

functional disability. In the facts, it would be reasonable to fix the

functional disability as 25%. The Tribunal had fixed notional income of

the claimant as Rs.8000/-per month. Considering the age, avocation and

the year of accident, this Court is of the view that it would be just and

reasonable to fix a sum of Rs.12,000/- per month as notional income of https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1559 of 2022 and 1502 of 2023

the claimant. In the facts, the claimant is entitled to 40% enhancement

towards “Future Prospects”. The multiplier applicable is 18. Therefore,

the award of compensation under the head disability has to be assessed as

follows.

Rs.12,000 +(12000 + 40%) X 12 X 18 X 25/100 = Rs.9,07,200/-.

As regards medical expenses, it is seen from the evidence of R.W.1 that

the claimant had paid Rs.2,06,000/- and there was balance due of

Rs.56,169/-. The compensation can be granted only for the amount paid

by the claimant. Hence, the compensation under the head medical

expenses is reduced to Rs.2,06,000/-. Further, this Court finds that the

compensation awarded by the Tribunal under the heads pain and

suffering, future medical expenses and loss of amenities are meagre. In

the facts and circumstances of the case, it would be just and reasonable to

award Rs.50,000/- each towards pain and sufferings and loss of amenities

and Rs.25,000/- towards future medical expenses. It is seen that the

claimant had taken treatment in the hospital for 32 days and hence, the

compensation under the head attender charges is enhanced to Rs.30,000/-

. Similarly, award under the head transportation is enhanced to

Rs.10,000. Since this Court adopted multiplier method for awarding

compensation, the compensation awarded by the Tribunal under the head https://www.mhc.tn.gov.in/judis

C.M.A.Nos.1559 of 2022 and 1502 of 2023

partial loss of income is set aside. The amount awarded by the Tribunal

under other heads is just and reasonable and 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. Disability 2,40,000 9,07,200 Enhanced
2. Medical Expenses 3,91,416 2,06,000 Reduced
3. Future Medical 5,000 25,000 Enhanced
Expenses
4. Pain and 5,000 50,000 Enhanced
Sufferings
5. Loss of Amenities 5,000 50,000 Enhanced
6. Extra 5,000 5,000 Confirmed
Nourishment
7. Attender Charges 5,000 20,000 Enhanced
8. Transportation 1,000 10,000 Enhanced
9. Partial Loss of 16,000 - Set aside
Income
Total 6,73,416 12,73,200 Enhanced by
Rs.5,09,816/-

15% contributory 1,01,012 1,90,980
negligence
Net compensation 5,72,404 10,82,220
payable

15.With the above modification, (i) C.M.A.No.1559 of 2022 is

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C.M.A.Nos.1559 of 2022 and 1502 of 2023

partly allowed by reducing the compensation in respect of medical

expenses and setting aside the amount awarded towards partial loss of

income. (ii) C.M.A.No.1502 of 2023 is partly allowed by enhancing the

compensation awarded by the Tribunal from Rs.5,72,404/- to

Rs.10,82,220/- together with interest at 7.5% per annum (excluding the

default period, if any) from the date of petition till the date of deposit.

(iii)The 2nd respondent/Insurance Company is directed to deposit the

award amount now determined by this Court along with interest and