The Divisional Manager vs R.Sivakumar ..... 1St
2023 Latest Caselaw 16093 Mad

Madras High Court

The Divisional Manager vs R.Sivakumar ..... 1St on 11 December, 2023

Author: N.Seshasayee

Bench: N.Seshasayee

                                                                                  C.M.A.No.1641 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 11.12.2023

                                         CORAM : JUSTICE N.SESHASAYEE

                                                 C.M.A.No.1641 of 2022
                                               and CMP.No.12247 of 2022



                     The Divisional Manager
                     National Insurance Company Limited
                     D.O.No.110, J.N.Street
                     Puducherry - 605 001.                        ..... Appellants / 2nd Respondent


                                                                Vs


                     1.R.Sivakumar                                ..... 1st Respondent / Petitioner

                     2.R.Senthilkumar                          ..... 2nd Respondent / 1st Respondent

                     Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 praying to set aside the award that has been passed in this
                     matter by the Motor Accident Claims Tribunal (Chief Judicial Magistrate) at
                     Cuddalore, in MCOP.No.1963 of 2018, dated 27-09-2021, allow the appeal.


                                    For Appellant      : Ms.R.Sree Vidhya

                                    For Respondents : Ms.Ramya V.Rao for R1
                                                      R2 - No appearance




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                                                                                C.M.A.No.1641 of 2022




                                                    JUDGMENT

This appeal is preferred by the Insurance company challenging the award

passed by the Tribunal in MCOP.No.1963 of 2018, on the ground that the

compensation awarded is unrealistically high.

2. On 10.01.2018, the first respondent, an auto rickshaw driver suffered

serious injuries to his right leg, when he was hit by another auto rickshaw,

while he was standing on the road margin. He suffered fractures to his both

right tibia and right fibula, besides other fractures to his heel area. The

medical board had assessed his disability vide Ext.C1 at 51% . The Tribunal

had treated the same as functional disability, and determined the

compensation payable at Rs.8,99,640/- after reckoning Rs.7,000/- as his

notional monthly income. Including the compensation paid on other non-

conventional heads, the Tribunal arrived at a total compensation of

Rs.9,99,896/-. This is now under challenge.

3. The learned counsel for the appellant/insurance company submitted that

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the claimant is an auto rickshaw driver by avocation, and since the fractures

are only to his right leg, the Tribunal ought not to have treated the entire 51%

disability as functional disability.

4. Heard both sides. Since it is not disputed that the victim of the accident is

an auto rickshaw driver, and that the accident itself had taken place in 2018,

it would be reasonable to expect that he would be making atleast Rs.10,000/-

per month. And this Court also finds merit in the submissions of the counsel

for the appellant and considers that the Tribunal ought not to have treated the

disability as functional disability entirely. Therefore, this Court considers

that 25% would be appropriate towards functional disability. So far as the

conventional heads of compensation is concerned, this Court finds that the

Tribunal has not awarded for loss of amenities, and makes certain

modifications to the compensation awarded. The below table provides the

details of the Tribunal award and the revised award now granted by this

Court :

Sl.No. Heads of Compensation Award of Revised Award Tribunal (Rs.) Amount (Rs.)

1. Loss of earning power 8,99,640.00 6,30,000.00

2. Pain and suffering 40,000.00 40,000.00

3. Medical expenses 16,256.00 16,256.00

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Sl.No. Heads of Compensation Award of Revised Award Tribunal (Rs.) Amount (Rs.)

4. Nourishment 5,000.00 5,000.00

5. Damage to clothing 2,000.00 2,000.00

6. Transportation 5,000.00 5,000.00

7. Attendant charges 32,000.00 32,000.00

8. Loss of amenities NIL 25,000.00 Total : 7,55,256.00 Rounded off to : Rs.7,55,250/-

5. To conclude, the appeal is partly allowed, and the award of the Tribunal is

modified to an extent and reduced from Rs.9,99,896/-. to Rs.7,55,250/-. The

appellant is now directed to pay the said sum of Rs.7,55,250/- to the first

respondent/claimant with interest at the rate of 7.5% less any amount which

has been already deposited within a period of six weeks from the date of

receipt of a copy of this order. No costs. Consequently, connected

miscellaneous petition is closed.

11.12.2023

Index : Yes / No Internet : Yes / No Speaking order / Non-speaking order ds

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To:

1. The Chief Judicial Magistrate Motor Accident Claims Tribunal Cuddalore.

2.The Section Officer VR Section High Court, Madras.

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N.SESHASAYEE.J.,

ds

11.12.2023

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