Madras High Court
Shriram General Insurance Co. Ltd vs Ramani on 6 July, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.07.2023
Coram
The Honourable Mr.Justice KRISHNAN RAMASAMY
C.M.A.No.3052 of 2019
and Cross Objection No.53 of 2019
and C.M.P.No.16712 of 2019
C.M.A.No.3052 of 2019:
Shriram General Insurance Co. Ltd.,
having its Branch Office at
VCTV Main Road, Sathy Road,
Erode – 638 003.
...Appellant
Versus
1.Ramani
2.S.Revathi
...Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 praying to set aside the decree and judgment
dated 23.10.2017 made in M.C.O.P.No.224 of 2015 on the file of Motor
Accident Claims Tribunal (Special Sub Court), Erode.
For Appellant : Mr.S.Dhakshanamoorthy
For Respondent – 1 : Mr.S.P.Yuvaraj
For Respondent – 2 : No Appearance
Cross Objection No.53 of 2019:
Ramani ...Cross Objector
Versus
https://www.mhc.tn.gov.in/judis
1.Shriram General Insurance Co. Ltd.,
having its Branch Office at
VCTV Main Road, Sathy Road,
Erode – 638 003.
2.S.Revathi
...Respondents
This Cross Objection is filed under Order 41 Rule 22 of C.P.C
praying to enhance the compensation amount awarded in the judgment and
decree dated 23.10.2017 made in M.C.O.P.No.224 of 2015 on the file of the
Motor Accident Claims Tribunal/Special Sub Court, Erode by allowing this
cross appeal in C.M.A.No.3052 of 2019 on the file of this Court.
For Cross Objector : Mr.S.P.Yuvaraj
For Respondent – 1 : Mr.S.Dhakshanamoorthy
COMMON JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company questioning the liability fixed and quantum of
compensation awarded by the Motor Accident Claims Tribunal (Special Sub
Court), Erode, vide decree and judgment dated 23.10.2017 in
M.C.O.P.No.224 of 2015. Subsequent to the filing of this appeal, the first
respondent/claimant has filed a Cross Objection No.53 of 2019 seeking to
enhance the compensation amount awarded by the Tribunal vide its decree
and judgment dated 23.10.2017 made in M.C.O.P.No.224 of 2015.
https://www.mhc.tn.gov.in/judis
2. The brief facts of the case are as follows:
On 13.01.2015 at about 8.50 a.m, when the first respondent was
travelling as pillion rider in Honda Activa moped bearing Registration
No.TN 33 BE 9657 which was riding by the second respondent on
Chennimalai to Erode Main Road from West to East direction, near Erode
Goods shed, in front of Public Toilet, one School Van came behind the
moped blew horn. So, the second respondent suddenly came down from
Thar Road to Mud Road and due to uncontrollable speed, she could not
control the moped and thereby fell down with moped. Due to the accident,
the first respondent had sustained grievous injuries and bone fracture on
head. Hence, the first respondent had filed a Claim Petition in
M.C.O.P.No.224 of 2015 against the second respondent and
appellant/Insurance Company, claiming a sum of Rs.5,00,000/- as
compensation for the injuries sustained by her in the accident.
3. The appellant/Insurance Company had filed its counter statement
in M.C.O.P.No.224 of 2015 denying all the averments made by the first
respondent/claimant in the claim petition.
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4. Before the Tribunal, in order to prove the averments in the claim
petition, the first respondent/claimant examined herself as P.W.1 and apart
from her, three other witnesses were examined as P.W.2, P.W.3 & P.W.4
and 21 documents were marked as Exs.P1 to P21. On the side of the second
respondent and appellant/Insurance Company, no witnesses were examined
and no exhibits were marked.
5. On appreciation of the oral and documentary evidence, the
Tribunal arrived at the finding that the accident occurred due to the second
respondent who drove the two wheeler in a rash and negligent manner and
the Tribunal also held that being the insurer of the offending vehicle viz.,
two wheeler driven and owned by the second respondent, the
appellant/Insurance Company is liable to pay the compensation to the first
respondent/claimant. By arriving at such a conclusion, the Tribunal had
allowed the M.C.O.P.No.224 of 2015 and directed the appellant/Insurance
Company to pay a sum of Rs.3,20,300/- (Rupees Three Lakhs Twenty
Thousand and Three Hundred only) to the first respondent/claimant. The
break-up details of the compensation awarded by the Tribunal are as
follows:
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(i) Loss of Income - Rs. 19,500/-
(ii) Transport Expenses - Rs. 4,000/-
(iii) Extra Nourishment - Rs. 9,000/-
(iv) Damages for clothes and Articles - Rs. 500/-
(v) Medical Expenses - Rs. 66,900/-
(vi) Pain and Sufferings - Rs. 40,000/-
(vii) Disability - Rs. 40,000/-
(viii) Loss of Earning Power - Rs.1,40,400/-
___________________
Total - Rs.3,19,300/-
___________________
The total compensation was rounded off to Rs.3,20,300/-.
6. Aggrieved over the liability fixed and quantum of compensation
awarded by the Tribunal, the appellant/Insurance Company has filed the
present Appeal before this Court.
7. Mr.S.Dhakshanamoorthy, learned counsel for the
appellant/Insurance Company submitted that when the second respondent
was driving her two wheeler, a driver who was driving an unknown School
Van behind her two wheeler suddenly blew horn, as a result of which, the
second respondent lost her balance and fell down with two wheeler, thereby,
the accident occurred. Hence, there was no negligence on the part of the
second respondent.
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7.1. In fact, in the First Information Report (Ex.P1), it has been
clearly stated that the accident had occurred only due to the driver of an
unknown School Van who blew horn suddenly. Since the first
respondent/claimant had filed a claim petition under Section 166 of the
Motor Vehicles Act, 1988, she ought to have proved that the negligence is
on the part of the second respondent who drove the two wheeler, but, none
of the documents marked on the side of the first respondent/claimant had
not proved that the accident had occurred due to the negligent driving of the
second respondent. However, without considering all these aspects, the
Tribunal fastened the negligence on the second respondent. The Tribunal
had observed in its findings that the school van which came behind the two
wheeler driven by the second respondent not dashed behind the two
wheeler, but, only about to dash the two wheeler and after hearing the horn
sound of the school van, the first respondent driven away the two wheeler
from Thar Road to Mud Road and she could not control the speed of the two
wheeler and fell down, thereby the accident had occurred. It also observed
that if the second respondent rode the two wheeler in a careful manner, the
accident would not had been occurred. Ultimately, the Tribunal arrived at a
conclusion that the accident had happened due to the rash and negligent
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driving of the second respondent who drove the two wheeler and being the
insurer of the two wheeler, the appellant/Insurance Company is liable to pay
the compensation to the first respondent/claimant.
7.2. The learned counsel further submitted that so far as quantum of
compensation is concerned, the Tribunal had awarded Rs.40,000/- towards
Disability and Rs.1,40,400/- towards Loss of Earning Power, which are on
the higher side.
7.3. In the present case, Dr.Periyasamy (P.W.2) who examined the
first respondent/claimant assessed that the first respondent/claimant is
suffered from 46% of partial permanent disability. The disability certificate
issued by P.W.2 was marked as Ex.P16. However, considering the medical
reports of the first respondent/claimant, the Tribunal took the functional
disability of the first respondent/claimant as 20% and awarded a sum of
Rs.40,000/- towards Disability. That apart, considering the age, monthly
income and functional disability, the Tribunal awarded a sum of
Rs.1,40,400/- towards Loss of Earning Power respondent/claimant. The
Tribunal ought not to have considered the disability of the first
respondent/claimant twice while awarding compensation towards Disability
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and while awarding compensation towards Loss of Earning Power. Further,
the Tribunal ought not to have applied the multiplier method while
awarding compensation towards Loss of Earning Power because it already
awarded Rs.40,000/- towards Disability by taking the functional disability
as 20%.
7.4. The amount awarded towards Loss of Earning Power is on the
higher side. Therefore, the learned counsel prayed this Court to re-
determine the amount awarded towards Loss of Earning Power without
applying the multiplier method. Further, he suggested this Court to take the
percentage of Functional Disability of the first respondent/claimant as 30%
and also, to enhance the amount for 1% disability as Rs.4,000/-.
8. Mr.S.P.Yuvaraj, learned counsel appearing for the first respondent
submitted that at the time of accident, the first respondent/claimant was
working as a House Maid and she was earning Rs.10,000/- per month. The
first respondent/claimant is the only earning member in her family. Due to
the accident, the first respondent/claimant sustained severe injuries all over
her body and she is suffered from permanent disability. Though P.W.2 had
assessed the disability of the first respondent/claimant as 46%, the Tribunal
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took the disability of the first respondent/claimant as 20%. However,
without considering all these aspects, the Tribunal awarded a very meager
amount as compensation. Therefore, the learned counsel prayed this Court
to enhance the compensation awarded by the Tribunal and dismiss the
appeal filed by the appellant/Insurance Company.
9. Heard the learned counsel for the appellant/Insurance Company
and the learned counsel appearing for the first respondent/claimant and
perused the materials placed before this Court.
10. In the present case, the appellant/Insurance Company has
preferred this appeal questioning the liability fixed and compensation
awarded by the Tribunal. On the other hand, the first respondent/claimant
has filed a Cross Objection, for enhancement of compensation awarded by
the Tribunal.
11. As far as negligence and liability are concerned, the Tribunal had
rightly fixed the negligence on the shoulder of the second respondent and
liability on the appellant/Insurance Company. Hence, this Court confirms
the finding of the Tribunal in respect of fixation of negligence and liability.
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12. So far as quantum of compensation awarded by the Tribunal is
concerned, this Court accepts the submission made by the learned counsel
for the appellant/Insurance Company that the Tribunal ought not to have
considered the disability of the first respondent/claimant twice while
awarding compensation towards Disability and while awarding
compensation towards Loss of Earning Power. Hence, this Court feels that
it would be just and appropriate to award compensation under a single head,
'Loss of Earning Power due to Disability' instead of re-determining the
amount awarded under the heads viz., Disability and Loss of Earning
Power. Further, as prayed by the learned counsel for the
appellant/Insurance Company, this Court takes the percentage of Functional
Disability of the first respondent/claimant as 30% and enhances the amount
for 1% disability as Rs.4,000/-.
13. Accordingly, the two heads viz., Disability and Loss of Earning
Power and the amounts awarded by the Tribunal therein are deleted and a
sum of Rs.1,20,000/- (30 x Rs.4,000/-) is awarded under the head, 'Loss of
Earning Power due to Disability'. The amount awarded by the Tribunal
towards all other heads viz., Loss of Income, Transport Expenses, Extra
https://www.mhc.tn.gov.in/judis
Nourishment, Damages for clothes and Articles, Medical Expenses, Pain
and Suffering are just and fair and therefore, the same are not enhanced or
reduced. The break-up details of the re-determined compensation awarded
by this Court are as follows:
(i) Loss of Income - Rs. 19,500/-
(ii) Transport Expenses - Rs. 4,000/-
(iii) Extra Nourishment - Rs. 9,000/-
(iv) Damages for clothes and Articles - Rs. 500/-
(v) Medical Expenses - Rs. 66,900/-
(vi) Pain and Sufferings - Rs. 40,000/-
(vii) Loss of Earning Power
due to Disability (30 x Rs.4,000/-) - Rs.1,20,000/-
___________________
Total - Rs.2,59,900/-
___________________
The total compensation is rounded off to Rs.2,60,000/-.
14. In the result, this Civil Miscellaneous Appeal is partly allowed
and the Cross Objection filed by the first respondent/claimant is dismissed.
A sum of Rs.3,20,300/- (Rupees Three Lakhs Twenty Thousand and Three
Hundred only) awarded by the Tribunal in M.C.O.P.No.224 of 2015 is re-
determined to a sum of Rs.2,59,900/- which is rounded off as Rs.2,60,000/-
(Rupees Two Lakhs and Sixty Thousand only) by this Court. The
appellant/Insurance Company is directed to deposit the said re-determined
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award amount, after deducting the amount(s), if any, already deposited,
along with interest at 7.5% per annum from the date of petition till the date
of deposit, to the credit of M.C.O.P.No.224 of 2015, within a period of six
weeks from the date of receipt of a copy of this judgment. On such deposit
being made, the Tribunal is directed to transfer the said award amount
directly to the bank account of the first respondent/claimant, through RTGS,
within a period of three weeks thereafter. No costs. Consequently,
connected miscellaneous petition is closed.
06.07.2023
mrr
Index : Yes/No
Speaking Order (or) Non-Speaking Order
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KRISHNAN RAMASAMY, J.
mrr
C.M.A.No.3052 of 2019
and Cross Objection No.53 of 2019
06.07.2023
https://www.mhc.tn.gov.in/judis
