Madras High Court
M/S.New India Assurance Company ... vs K.Palanisamy on 5 June, 2023
C.M.A(MD)No.345 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.345 of 2020
and
Cros.Obj(MD)No.3 of 2021
and
C.M.P(MD)No.2753 of 2022
C.M.A(MD)No.345 of 2020:
M/s.New India Assurance Company Limited,
Represented by its Branch Manager,
BSNL Buildings, 70 Feet Road,
Ellis Nagar,
Madurai District. ... Appellant/2nd Respondent
Vs.
1.K.Palanisamy ... Respondent/Petitioner
2.R.Balaji ... Respondent/1st Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, to set aside the judgment and decree in
M.C.O.P.No.445 of 2017, dated 09.01.2020 on the file of the Motor
Accidents Claims Tribunal, Special Subordinate Court, Madurai and
allow the appeal with costs.
For Appellant : Mr.J.S.Murali
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C.M.A(MD)No.345 of 2020
For R1 : Mr.K.Mahendran
For R2 : No Appearance
Cros.Obj(MD)No.3 of 2021:
K.Palanisamy ... Cross Objector/1st Respondent/
Petitioner
Vs.
1.New India Assurance Private Limited,
Represented by its Branch Manager,
BSNL Buildings, 70 Feet Road,
Ellis Nagar,
Madurai District. ... Respondent/Appellant/
2nd Respondent
2.R.Balaji ... Respondent/2nd Respondent/
1st Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Order 41, Rule 22
of Code of Civil Procedure, to set aside the judgment and decree, dated
09.01.2020 in M.C.O.P.No.445 of 2017 on the file of the learned Motor
Accidents Claims Tribunal, Special Subordinate Court, Madurai.
For Appellant : Mr.K.Mahendran
For R1 : Mr.J.S.Murali
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C.M.A(MD)No.345 of 2020
JUDGMENT
The present appeal has been filed by the insurance company
challenging the award passed by the Motor Accident Claims Tribunal,
Madurai in M.C.O.P.No.445 of 2017 challenging quantum and liability.
2. The injured claimant was a building contractor who sustained
grievous injuries in an accident that has taken place on 19.07.2016. The
disability certificate has been issued as per Exhibits C.1 and C.2. As per
the disability certificate, the claimant had sustained disability at 38%.
The tribunal has awarded a sum of Rs.3,500/- per percentage and arrived
at a compensation of Rs.1,33,000/- towards partial permanent disability.
The tribunal has further awarded a sum of Rs.30,000/- towards pain and
suffering, a sum of Rs.5,000/- towards extra nourishment, a sum of
Rs.20,000/- towards attender charges, a sum of Rs.60,000/- towards loss
of income during treatment, a sum of Rs.2,000/- towards loss of estate, a
sum of Rs.15,000/- towards transport expenses and a sum of
Rs.7,35,000/- towards medical expenses based upon various medical
bills, totalling a sum of Rs.10,00,000/- has been awarded. Challenging
the said award, the present appeal has been filed by the insurance
company.
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C.M.A(MD)No.345 of 2020
3. The learned counsel appearing for the insurance company had
contended that the injured claimant was riding a bike and a car which
was coming from the opposite direction had dashed against the bike and
the claimant had sustained grievous injuries. The car was owned by the
1st respondent in the claim petition and the driver of the car was not
having any valid and effective driving license at the relevant point of
time. Therefore, there was a clear violation of policy conditions and the
tribunal ought to have awarded pay and recovery.
4. A perusal of Exhibit X.2 which is annexed to page 19 of typed
set of papers clearly indicates that the driver of the offending vehicle had
taken LMV license only on 28.06.2017. Therefore, it is clear that on the
date of accident, the car was driven by a driver who was only having a
two wheeler license. Therefore, this Court is inclined to accept the
contentions of the learned counsel for the appellant that there is a
violation of policy conditions and the tribunal ought to have awarded pay
and recovery.
5. The claimant has filed Cross Objection(MD)No.3 of 2021
seeking enhancement of compensation. Along with the cross objection,
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C.M.A(MD)No.345 of 2020
the claimant had filed C.M.P(MD)No.2753 of 2022 to receive certain
medical bills and discharge summary so as to indicate that he has
undergone further treatment in consequence of the injury sustained by
him at the time of accident. This Court was pleased to pass an order on
31.03.2022 directing the Motor Accident Claims Tribunal to verify the
genuineness of the medical bills and discharge summary after cross-
examination of the claimant and submit a report. The Motor Accident
Claims Tribunal was pleased to receive all medical bills and discharge
summary and after conducting cross-examination of the claimant, has
filed a report before this Court on 24.06.2022 to the effect that medical
bills that is Exhibit X.2 to X.4 are relevant, admissible and genuine and
the claimant is entitled for the treatment expenditures covered under
those documents that is for a sum of Rs.2,45,900/-. Therefore, this Court
is of the view that additional evidence has been properly adduced and the
documents have been properly marked before the tribunal and the
tribunal has also arrived at a finding after cross-examination of the
claimant to the extent that the claimant is entitled to an additional amount
of Rs.2,45,900/-. Therefore, this Court has no hesitation to accept the
said report and add the said amount to the medical expenses incurred by
the claimant.
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C.M.A(MD)No.345 of 2020
6. The learned counsel appearing for the cross-objector has
contended that the claimant has incurred grievous injuries which would
affect his professional career and therefore, multiplier method ought to
have adopted by the tribunal in view of the fact that there is functional
disability. This Court is not in a position to accept the same in view of
the report of the medical board under Exhibit C.1 and C.2. A perusal of
the report indicates that the claimant has not sustained any permanent
disability whatsoever.
7. In view of the fact that the claimant has undergone another
surgery after the delivery of the judgment by the tribunal, this Court is
inclined to enhance the award amount from Rs.30,000/- to Rs.50,000/-
towards pain and suffering. The award of Rs.5,000/- towards extra
nourishment is enhanced to Rs.10,000/-. The award of Rs.20,000/-
towards attender charges is enhanced to Rs.25,000/-.
8. Considering the fact that the claimant was again admitted in the
hospital for a week time and has undergone another surgery, a sum of
Rs.60,00/- towards loss of income during the period of treatment can be
enhanced to Rs.80,000/-. A sum of Rs.15,000/- awarded towards
transportation charges can be enhanced to Rs.25,000/-. The medical
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C.M.A(MD)No.345 of 2020
expenses that were awarded as Rs.7,35,000/- shall be increased to
Rs.9,80,900/- (adding a sum of Rs.2,45,900/- which was incurred by the
claimant after the delivery of the judgment).
9. In view of the above said deliberations, the award of the tribunal
is modified as follows:
Permanent disability 38x3,500 : Rs.1,33,000/-
Pain and suffering : Rs. 50,000/-
Extra nourishment : Rs. 10,000/-
Attender charges : Rs. 25,000/-
Loss of income during treatment : Rs. 80,000/-
Damage to articles : Rs. 2,000/-
Transportation expenses : Rs. 25,000/-
Medical expenses : Rs.9,80,900/-
--------------------
Total : Rs.13,05,900/-
The award of the tribunal is modified from Rs.10,00,000/- to
Rs.13,05,900/-. The enhanced amount will carry interest 7.5% from the
date of claim petition.
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C.M.A(MD)No.345 of 2020
10. C.M.A(MD)No.345 of 2020 is allowed and the award of the
tribunal is modified to the extent that the appellant insurance company
shall satisfy the award and thereafter, recover the same from the 1st
respondent in the claim petition following 2004 (1) TN MAC (SC) 211
(Oriental Insurance Co.Ltd., Vs. Shri Nanjappan & Others). On such
payment, the claimants shall be entitled to withdraw the amount.
11. Cros.Obj(MD)No.3 of 2021 stands allowed to the extent as
stated above enhancing the compensation amount from Rs.10,00,000/- to
Rs.13,05,900/-. C.M.P(MD)No.2753 of 2022 stands allowed.
12. C.M.A(MD)No.345 of 2020, Cros.Obj(MD)No.3 of 2021 and
C.M.P(MD)No.2753 of 2022 stand allowed to the extent as stated above.
No costs.
05.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
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Note : Registry is directed to return Exhibits X.1
to X.4 that are subject matter of the report of the
Special Subordinate Judge, Madurai for M.C.O.P
cases, dated 16.06.2022 along with other E.B
records.
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C.M.A(MD)No.345 of 2020
To
1.The Motor Accidents Claims Tribunal,
Special Subordinate Court,
Madurai.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.345 of 2020
R.VIJAYAKUMAR,J.
gbg
Judgment made in
C.M.A(MD)No.345 of 2020
05.06.2023
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