Madras High Court

United India Insurance Company ... vs S.Senthilprabu on 12 July, 2023

                                                                                  C.M.A.No.14 of 2022



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    Dated: 12.07.2023

                                                 CORAM:
                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                                   C.M.A.No.14 of 2022


                United India Insurance Company Limited,
                Door No.178, Dr.Najappa Road,
                Gandhipuram,
                Coimbatore 641 009.                                                ...Appellant


                                                           Vs.


                1.S.Senthilprabu
                2.S.Rajan
                3.R.Manimegalai                                                    ...Respondents


                PRAYER : The Civil Miscellaneous Appeal is filed under Section 173 of
                Motor Vehicles Act, 1988, against the judgment and decree dated 26.04.2021 in
                M.C.O.P.No.2048 of 2018 on the file of the Motor Accident Claims Tribunal,
                Special Sub Judge, Coimbatore.


                                   For Appellant     : Mr.D.Bhaskaran
                                   For Respondents : Mr.R.Navaneethakrishnan for R1
                                                      No appearance for R2 & R3




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                                                                               C.M.A.No.14 of 2022



                                                  JUDGMENT

This Civil Miscellaneous Appeal is filed by the Insurance Company

challenging the award dated 26.04.2021 made in M.C.O.P.No.2048 of 2018 on

the file of the Motor Accident Claims Tribunal, Special Sub Judge, Coimbatore.

2. The appellant/Insurance Company is the third respondent in

M.C.O.P.No.2048 of 2018 on the file of the Motor Accident Claims Tribunal,

Special Sub Judge, Coimbatore. The first respondent filed the said claim

petition claiming a sum of Rs.20,00,000/- as compensation for the injuries

sustained by him in the accident that took place on 10.11.2018.

3. According to the first respondent, on the date of accident i.e., on

10.11.2018 at about 03.30 hours, while he was riding his two wheeler bearing

registration No.TN 99 A 5258 on Marakadai – Sukkiravarpettai R.G. Junction

from East to West direction, a tata indica car bearing registration No.TN 66 C

9191, came on the same road from North to South direction in a rash and

negligent manner, dashed against the two wheeler and caused the accident, as a

result of which, he suffered grievous injuries. Therefore, he was entitled to a

claim of Rs.20 lakhs.

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C.M.A.No.14 of 2022

4. The respondents 2 and 3, who are the driver and owner of the

offending vehicle remained ex-parte before the Tribunal.

5.The appellant/ Insurance Company filed counter statement denying the

averments made in the claim petition and also stated that the accident had taken

place only due to the rash and negligent riding by the first respondent. In any

event, the compensation claimed by the 1st respondent is excessive and prayed

for dismissal of the claim petition.

6.Before the Tribunal, the first respondent examined three witnesses as

P.W.1 to P.W.3 and marked twenty documents as Exs.P1 to P20. The

appellant/Insurance Company did not let in any oral and documentary evidence.

The authorisation letter received from the P.S.G. Hospital, Coimbatore was

marked as Court document Ex.C1. The Disability Certificate of the first

respondent was marked as Court document Ex.C2.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident has occurred only due to the rash and negligent

driving by the second respondent belonging to the third respondent and

directed the appellant being insurer of the offending vehicle to pay a sum of

Rs.13,26,100/- as compensation to the first respondent. https://www.mhc.tn.gov.in/judis

C.M.A.No.14 of 2022

8.The learned counsel for the appellant submitted that the evidence

disclosed that the first respondent has also contributed to the accident and

hence, the Tribunal ought to have fixed atleast 50% contributory negligence on

the first respondent. The learned counsel relied upon the documents such as

Rough Sketch/Ex.P2, Final Report/Ex.P5 and other evidence in support of his

submissions. The learned counsel further submitted that in any case, the

compensation awarded under the heads pain and suffering at Rs.2,50,000/-, loss

of amenities at Rs.2,00,000/- and loss of income at Rs.2,50,000/- are excessive.

The learned counsel submitted that even according to the claim petition, the

first respondent was earning a sum of Rs.18,000/- per month, but the Tribunal

has fixed the notional income at Rs.25,000/- per month and the same is

erroneous. Hence, he prayed for allowing the appeal and setting aside the award

of the Tribunal.

9. Per contra,the learned counsel for the first respondent submitted that

the Tribunal has awarded just compensation under all the heads. The Tribunal

has taken into consideration that the first respondent has suffered five grievous

injuries and had taken treatment as in-patient in P.S.G. Hospital, Coimbatore

from 10.11.2018 to 19.11.2018 and from 18.10.2019 to 22.10.2019, on two

spells, for 14 days, awarded Rs.2,50,000/- towards pain and suffering. The

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C.M.A.No.14 of 2022

Tribunal also taking into consideration the fact that the first respondent had lost

his front four teeth and hence, the compensation awarded under the head loss of

amenities is justified.

10. As regards the income, the learned counsel for the first respondent

submitted that P.W.2, who was the employer of the first respondent had

categorically stated that the first respondent was earning a sum of Rs.25,000/-

per month and hence, the Tribunal has rightly fixed the income at Rs.25,000/-

per month and awarded Rs.2,50,000/- (Rs25,000/- X 10 months) towards loss

of income for a period of 10 months. Hence, he prayed for dismissal of the

appeal.

11. This Court on perusal of the records and on hearing the submissions

made by the learned counsel on either side finds that the Tribunal has

considered the evidence of P.W.1, wherein, he had stated clearly about the

manner in which the accident took place. The appellant has not let in any contra

evidence to disbelieve the evidence of P.W.1/first respondent. Further, it is seen

that on the complaint given by the first respondent, a case in Crime No.324 of

2018 was registered on the file of Kovai West Traffic Police Station for the

offence under Section 279 and 337 IPC. The Police had on investigation filed

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C.M.A.No.14 of 2022

the final report before the Judicial Magistrate No.VIII, Coimbatore. The

Tribunal also considered Ex.P6/which is the judgment of the learned Judicial

Magistrate in S.T.C.No.165 of 2019 convicting the first respondent for the

aforesaid offences on his plea of guilt. This Court on perusal of Ex.P1/FIR,

P5/final report and P6/Judgment of the learned Judicial Magistrate, Coimbatore

and evidence of P.W.1, finds that the accident took place only on account of the

rash and negligent driving of the driver of the car belonging to the third

respondent and the Tribunal was justified in fixing the negligence on the part of

the driver of the vehicle and the same cannot be faulted.

12. As regards the quantum, this Court finds that the disability assessed

by the Doctor was 44% and the Tribunal had rightly fixed Rs.5,000/- per

percentage of disability and awarded Rs.2,20,000/- under the said head. As

regards the compensation under the head loss of income, it is seen that in the

claim petition that the first respondent had stated that he was earning a sum of

Rs.18,000/- per month at the time of accident. However the Tribunal has taken

into consideration the evidence of P.W.2/employer of the first respondent,

Exs.P17/payslips and P18/Salary Certificate, to fix the income at Rs.25,000/-.

This Court is of the view that the income shown in the salary certificate/Ex.P18

is contrary to the claim petition itself. It is highly improbable for the first

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C.M.A.No.14 of 2022

respondent to state a lesser income than his actual income in the claim petition.

In such circumstances, Ex.P17/Payslips and P18/salary certificate cannot be

believed. From the nature of injuries and the period of treatment, this Court is

of the view that the number of months taken for calculating the loss of income

at 10 months is disproportionate. This Court is of the view that considering the

period of hospitalization of 14 days altogether in the years 2018 and 2019 and

the subsequent rest period after surgery, the loss of income can only be for six

months. Hence, the compensation under the head loss of income is reduced

from Rs.2,50,000/- to Rs.1,08,000/- (Rs.18,000/- x 6months).

13. As regards pain and suffering, this Court is of the view that

considering the nature of injuries, treatment taken by the first respondent and

period of hospitalization and also of the fact that the first respondent was

entitled to compensation under the head of disability, the compensation under

this head Rs.2,50,000/- is excessive. The compensation awarded by the

Tribunal towards loss of pain and suffering is reduced from Rs.2,50,000/- to

Rs.1,00,000/-, which would be just and proper.

14. The first respondent has taken treatment as an in-patient in P.S.G.

Hospital, Coimbatore from 10.11.2018 to 19.11.2018 and from 18.10.2019 to

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C.M.A.No.14 of 2022

22.10.2019, on two spells, for 14 days. The Tribunal considering the period of

hospitalisation for 14 days, awarded Rs.20,000/- towards attendant charges.

Apart from that, the Tribunal has awarded an excessive sum of Rs.2,00,000/-

towards loss of amenities, which is not justified and therefore, the same is

reduced to Rs.50,000/-. The amount of compensation awarded by the Tribunal

under all other heads are just and reasonable and hence, the same are hereby

confirmed. Thus the compensation awarded by the Tribunal is modified as

follows:

                   S.No           Description    Amount       Amount awarded       Award
                                                awarded by     by this Court    confirmed or
                                                 Tribunal          (Rs)         enhanced or
                                                   (Rs)                          granted or
                                                                                  reduced
                  1.        Pain and               2,50,000          1,00,000 Reduced
                            sufferings
                  2.        Loss of amenities      2,00,000           50,000 Reduced
                  3.        Extra nouishment         20,000           20,000 Confirmed
                  4.        Transportation           10,000           10,000 Confirmed
                  5.        Attendant charges        20,000           20,000 Confirmed
                  6.        Medical expenses       3,53,100          3,53,100 Confirmed
                  7.        Damage to clothes         3,000            3,000 Confirmed
                  8.        Loss of income         2,50,000          1,08,000 Reduced
                  9.        Disability             2,20,000          2,20,000 Confirmed
                            Total                 13,26,100          8,84,100 Reduced by
                                                                              Rs.4,42,000/-

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                                                                                C.M.A.No.14 of 2022

15.With the above modification, the Civil Miscellaneous Appeal is partly

allowed. The compensation of Rs.13,26,100/- awarded by the Tribunal is

hereby reduced to Rs.8,84,100/- together with interest at the rate of 7.5% per

annum from the date of petition till the date of deposit. The appellant/Insurance

Company is directed to deposit the modified award amount now determined by

this Court along with interest and costs, less the amount already deposited if

any, within a period of six weeks from the date of receipt of a copy of this

judgment. On such deposit, the first respondent is permitted to withdraw the

modified award amount now determined by this Court, along with

proportionate interest and costs, after adjusting the amount if any, already

withdrawn. The appellant/Insurance Company is permitted to withdraw the

excess amount, if any lying in the deposit to the credit of M.C.O.P.No.2048 of