Madras High Court
The Branch Manager vs Sivakumar on 22 December, 2023
Author: R.Subramanian
Bench: R.Subramanian
Civil Miscellaneous Appeal No.1430 of 2021
and Cross Objection No.80 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.12.2023
Coram
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
Civil Miscellaneous Appeal No.1430 of 2021
& C.M.P.No.7445 of 2021 &
Cross Objection No.80 of 20211
The Branch Manager,
Reliance General Insurance Co. Ltd.,
Branch Office, Shree Lakshmi Complex,
1st Floor, Omalur Main Road,
Bharathi Street, Swarnapuri,
Salem - 636 004. ... Petitioner
Vs.
1.Sivakumar
S/o.Chenappa
2.The Correspondent,
Parimala Nursery & Primary School,
Door No.2/37, Sri Krishna Nagar,
Berigai Road, Shoolagiri - 635 117.
Krishnagiri District. ... Respondents
Civil Miscellaneous Petition filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated 28.08.2019 made
in M.C.O.P.No.366 of 2017 on the file of Motor Accident Claims Tribunal,
Additional District Judge, Hosur.
1/9
https://www.mhc.tn.gov.in/judis
Civil Miscellaneous Appeal No.1430 of 2021
and Cross Objection No.80 of 2021
For Petitioner : Mr.S.Arunkumar
For Respondents : Mr.Ram Prabhu
for Mr.S.P.Yuvaraj [R1]
*****
JUDGMENT
[Made by R.SUBRAMANIAN, J]
The Insurance Company is on appeal. Challenge is to the quantum of
compensation awarded at Rs.28,45,682/- for injuries suffered by the
claimant/first respondent in a motor accident that occurred on 28.01.2017 at
about 07.30 hours.
2. According to the claimant, when he was riding his Hero Splendour
motorcycle from Paruveedhi towards his house on the left side of the road
slowly and cautiously, the driver of the bus bearing registration No.TN-90-
BT-0507 belonging to the second respondent herein drove the same in a rash
and negligent manner, without observing the traffic rules, in the opposite
direction and hit against the motorcycle resulting in very serious injuries to
the claimant. As a result of the accident, the claimant suffered a fracture on
the left femur and other injuries in the abdomen. He was admitted in the
Srinivasa Speciality Hospital at Hosur as an inpatient. A case was registered
https://www.mhc.tn.gov.in/judis
Civil Miscellaneous Appeal No.1430 of 2021
and Cross Objection No.80 of 2021
by the Shoolagiri police against the driver of the bus. Contending that the
driver of the bus was solely responsible for the accident and that the injuries
have resulted in him suffering a disability which has impacted the earning
capacity of the petitioner, the petitioner sought for compensation of
Rs.75,00,000/-. The quantum of compensation was justified by contending
that the claimant was a floriculturist and was also a small time building
contractor.
3. The owner of the offending vehicle viz., the bus remained ex parte
and the insurance company resisted the claim contending that the accident
did not occur in the manner as suggested by the claimant. It was pointed out
that the claimant has suppressed his own negligence. The claimant was also
put to strict proof of the income particulars and the disability.
4. At trial before the Tribunal, the claimant was examined as PW-1
and Exs.P1 to P12 were marked. The Accident Register copy and Temporary
Registration Certificate of the bus and the witness summons were marked as
Exs.R1 to R3. No oral evidence was let in on the side of the Insurance
https://www.mhc.tn.gov.in/judis
Civil Miscellaneous Appeal No.1430 of 2021
and Cross Objection No.80 of 2021
Company.
5. On the assessment of evidence placed before it, the Tribunal
concluded that the rash and negligent driving on the part of the bus driver
was the cause for the accident. In coming to the conclusion, the Tribunal
relied upon the First Information Report, which has been marked as Ex.P1.
The claimant himself, being an eye witness to the accident, has explained as
to how the accident took place. The absence of contra evidence on the part
of the insurance company was also cited by the Tribunal in support of its
conclusion. On the quantum, the Medical Board has assessed the disability
at 60%. The Tribunal took the entire disability as assessed as functional
disability and concluded that the claimant will be entitled to compensation
based on multiplier method since the functional disability had resulted in
loss of earning power. The Tribunal fixed the monthly income at
Rs.10,000/- and adopted the multiplier '17'. It arrived at the loss of earning
capacity at Rs.12,24,000/-. The Tribunal awarded a sum of Rs.20,000/-
towards transportation, Rs.30,000/- towards extra nutrition, Rs.40,000/-
towards attender charges, Rs.50,000/- towards pain and suffering,
Rs.10,000/- towards loss of amenities, Rs.9,62,082/- towards medical bills
https://www.mhc.tn.gov.in/judis
Civil Miscellaneous Appeal No.1430 of 2021
and Cross Objection No.80 of 2021
and Rs.20,000/- towards future medical expenses and loss of future
prospects was arrived at Rs.4,89,600/-. Thus, the total compensation worked
out to Rs.28,45,682/-.
6. Mr.S.Arunkumar, learned counsel appearing for the Insurance
Company, would vehemently contend that the Tribunal ought not to have
accepted the report of the Medical Board as it is without looking into the
fact that the claimant had only a fracture in the left femur and therefore, the
assessment of functional disability at 60% is not correct. Learned counsel
would also point out that the other injuries are not very serious.
7. Contending contra, Mr.Ram Prabhu, learned counsel appearing for
first respondent/claimant, would draw our attention to Ex. P11, discharge
summary, issued by the Srinivasa Speciality Hospital wherein it is stated
that apart from the fracture in the left femur, there is also ortho-fix insitu
and urethral stricture with post supra pubic catheter insitu. Learned counsel
would submit that the claimant is even today on assistance of catheter. The
contents of the discharge summary Ex.P11 extracted by the Tribunal would
show that the claimant had suffered a fracture of left femur with ortho-fix
https://www.mhc.tn.gov.in/judis
Civil Miscellaneous Appeal No.1430 of 2021
and Cross Objection No.80 of 2021
insitu and urethral stricture with post supra pubic catheter insitu.
Considering the said injuries, the District Medical Board has fixed the
disability at 60%.
8. Learned counsel for first respondent/claimant would highlight the
fact that the claimant is even today on assistance of catheter and therefore,
the compensation awarded is just and reasonable. In fact, the first
respondent/claimant has also filed a cross-objection seeking enhancement.
9. No doubt, a fracture of the left femur would not cause 60%
disability but if a person is put on catheter permanently, the same would
definitely amount to a functional disability as he cannot do the same work
as he was doing before the accident. We, therefore, do not see any reason to
disturb the finding of the Tribunal on the quantum. Once it is found that the
disability is 60% and that too for a person who works as a mason or
building contractor to be moving around with a catheter is a most difficult
thing to do. We are, therefore, unable to fault the Tribunal for having taken
the disability as suggested by the Medical Board as functional disability
considering the condition of the claimant.
https://www.mhc.tn.gov.in/judis
Civil Miscellaneous Appeal No.1430 of 2021
and Cross Objection No.80 of 2021
10. No doubt, the Tribunal has granted compensation of
Rs.4,89,600/- on future prospects, which according to Mr.S.Arunkumar, is
not justified. On an overall consideration of the circumstances and the
condition of the claimant, we treat the said compensation as compensation
towards loss of amenities and pain and sufferings. We, therefore, do not see
any reason to interfere with the award and reduce the quantum.
11. Arguing on the cross-objection, learned counsel for first
respondent/claimant would submit that the claimant should be awarded
some more amount for future medical expenses and attender charges.
12. The claimant is entitled to some more amount on pain and
sufferings and for future medical expenses. Since we have confirmed the
award of Rs.4,89,600/- towards future prospects, we do not see any reason
to award any amount as claimed by learned counsel for first
respondent/claimant.
13. The Civil Miscellaneous Appeal as well as the Cross Objection
https://www.mhc.tn.gov.in/judis
Civil Miscellaneous Appeal No.1430 of 2021
and Cross Objection No.80 of 2021
are dismissed confirming the award of the Tribunal. There shall be no order
as to costs in the appeal.
The Insurance Company shall deposit the award amount, less the
amount if any already deposit, with proportionate interest within a period of
twelve (12) weeks from the date of receipt of a copy of the order. On such
deposit, the claimant shall be entitled to withdraw the same. The direction to
pay and recover is confirmed. Consequently, connected miscellaneous
petition is closed.
[R.S.M., J] [N.S., J]
22.12.2023
Index: No
Speaking Order
Neutral Citation : No
gm
To
The Motor Accident Claims Tribunal,
Additional District Judge,
Hosur.
https://www.mhc.tn.gov.in/judis
Civil Miscellaneous Appeal No.1430 of 2021
and Cross Objection No.80 of 2021
R.SUBRAMANIAN, J
and
N.SENTHILKUMAR, J
gm
Civil Miscellaneous Appeal No.1430 of 2021
& C.M.P.No.7445 of 2021 &
22.12.2023
https://www.mhc.tn.gov.in/judis
