Madras High Court
United India Insurance Company ... vs Vadivel on 19 June, 2023
C.M.A.No.1755 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.06.2023
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.No.1755 of 2020
and
C.M.P.No.12888 of 2020
United India Insurance Company Limited,
No.19/2, Navrang Plaza,
IInd Floor, Opp. LGB Petrol Bunk,
Karur – 639 002. .. Appellant
Vs.
1.Vadivel
2.Mogan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
13.02.2020 made in M.C.O.P.No.374 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Dharmapuri.
For Appellant : Mr.C.Paranthaman
For R1 : Mr.D.Ramesh Kumar
For R2 : No appearance
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C.M.A.No.1755 of 2020
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the Insurance
Company against the award dated 13.02.2020 made in M.C.O.P.No.374 of
2017 on the file of the Motor Accidents Claims Tribunal, Special Sub Court,
Dharmapuri, challenging the liability and quantum.
2.The appellant herein is the 2nd respondent in M.C.O.P.No.374 of
2017 on the file of the Motor Accidents Claims Tribunal, Special Sub Court,
Dharmapuri. The 1st respondent herein filed the said claim petition, claiming
a sum of Rs.10,00,000/- as compensation for the injuries sustained by him in
the road accident that occurred on 29.04.2017.
3.The Tribunal considering the oral and documentary evidence, held
that the accident occurred due to rash and negligent driving by the driver-
cum-owner of the Tata Ace, the 2nd respondent herein and directed the
appellant-Insurance Company to pay a sum of Rs.3,30,033/- as compensation
to the 1st respondent.
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C.M.A.No.1755 of 2020
4.The learned counsel for the appellant/Insurance Company would
contend that at the time of accident, the insured vehicle bearing Registration
No.TN 47 Z 1482 had no valid fitness certificate and the driver of the vehicle
had plied the same without valid fitness certificate and therefore, the
appellant is not liable to pay any compensation to 1st respondent. The 1st
respondent also contributed to the accident since, he has not marked the
driving license and insurance particulars and the FIR registered against the
driver of the insured vehicle was closed as mistake of fact as per the evidence
of police official based on the final report. The Tribunal accepted the
disability certificate issued by the Medical Board and awarded compensation
for 10% disability by adopting multiplier method. In addition to awarding
compensation for disability by adopting multiplier method, the Tribunal also
has awarded compensation for loss of earning capacity, for which the 1st
respondent is not entitled to. The compensation awarded under other heads
are exaggerated and prayed for setting aside the award of the Tribunal.
5.The learned counsel for the 1st respondent / claimant would contend
that the accident has occurred only due to negligent driving by the driver of
the insured vehicle and the Tribunal considering the same, rightly held that
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C.M.A.No.1755 of 2020
the accident occurred only due to rash and negligent driving by the driver-
cum-owner of the Tata Ace vehicle. The Medical Board, Dharmapuri
examined the 1st respondent and certified that the 1st respondent suffered 10%
permanent disability and the Tribunal considering the same, has awarded
compensation for disability by adopting multiplier method and the same is
not excessive. The 1st respondent has taken treatment at two different
hospitals, due to which, he has not attended his work for the said period and
hence, the compensation awarded by the Tribunal for loss of earning is
reasonable. The Tribunal considering the nature of injuries sustained,
disability suffered and period of treatment taken by the 1st respondent has
awarded a sum of Rs.3,30,033/- as compensation to the 1 st respondent which
is not excessive and prayed for dismissal of the appeal.
6.Though notice has been served on 2nd respondent and his name is
printed in the cause list, there is no representation for him.
7.Heard Mr.C.Paranthaman, learned counsel for appellant and
Mr.D.Ramesh Kumar, learned counsel for 1st respondent and perused the
materials on record.
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C.M.A.No.1755 of 2020
8.From the materials on record, it is seen that it is the contention of the
learned counsel for appellant that on the date of accident, the insured vehicle
plied without valid fitness certificate and hence, the appellant-Insurance
Company is not liable to pay compensation.
9.The appellant – Insurance Company, being the insurer of the Tata
Ace vehicle belonging to 2nd respondent is not entitled to raise new grounds
in the appeal without any pleadings in the counter statement.
10.It is well accepted principle of law that a party to the proceeding is
not permitted to raise new ground in the appeal without there being any
pleading. Therefore, the above said ground raised by the appellant that on the
date of accident, the insured vehicle plied without valid fitness certificate is
not acceptable.
11.It is the further case of the appellant that the 1st respondent also
contributed to the accident since, he has not marked the driving license and
insurance particulars and the FIR registered against the driver of the insured
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C.M.A.No.1755 of 2020
vehicle was closed as mistake of fact as per the evidence of police official
based on the final report. As far as this contention is concerned, the 1st
respondent has lodged a complaint against the 2nd respondent, based on which
FIR was registered against the 2nd respondent, which was marked as Ex.P1
and also the 1st respondent appeared before the Tribunal and deposed as
P.W.1. Further, the 2nd respondent has not appeared before the Tribunal, but
remained exparte. The Tribunal considering the said facts, held that the
accident has occurred only due to rash and negligent driving by 2 nd
respondent and the said finding does not need any interference by this Court.
12.From the available materials, it is seen that in the accident, the 1 st
respondent sustained fracture at right leg knee, grievous injury inside chest
and fracture of right hip bone. For the injuries sustained by the 1st respondent
in the accident, he has taken treatment in the Ganga Medical Center Hospital,
Coimbatore and also at DNV Ortho Care Hospital, Dharmapuri and produced
Exs.P2 & P6 / discharge summaries to that effect. The Medical Board,
Dharmapuri examined the 1st respondent and certified that the 1st respondent
suffered 10% permanent physical disability and issued disability certificate,
which was marked as Ex.C1. At the time of accident, the 1st respondent was
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C.M.A.No.1755 of 2020
aged 35 years and was said to be working as Mason. On clinical examination
of the 1st respondent, the Medical Board found that the 1st respondent would
find difficulty in walking, to sit cross legged. The Tribunal considering Ex.C1
/ disability certificate and the findings of the Medical Board, adopted
multiplier method and awarded compensation for disability. For application
of multiplier method in injury cases, the relevant judgments are as follows:
13.In Rajkumar Vs. Ajaykumar reported in [2011 (1) SCC 343],
wherein the Hon'ble Apex Court has held that disability refers to any
restriction or lack of ability to perform an activity in the manner considered
normal for a human-being. Permanent disability refers to the residuary
incapacity or loss of use of some part of the body, found existing at the end of
the period of treatment and recuperation, after achieving the maximum bodily
improvement or recovery which is likely to remain for the remainder life of
the injured. Temporary disability refers to the incapacity or loss of use of
some part of the body on account of the injury, which will cease to exist at
the end of the period of treatment and recuperation. Permanent disability can
be either partial or total. Partial permanent disability refers to a person's
inability to perform all the duties and bodily functions that he could perform
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C.M.A.No.1755 of 2020
before the accident, though he is able to perform some of them and is still
able to engage in some gainful activity. Total permanent disability refers to a
person's inability to perform any avocation or employment related activities
as a result of the accident. The permanent disabilities that may arise from
motor accidents injuries, are of a much wider range when compared to the
physical disabilities which are enumerated in the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
(`Disabilities Act' for short). But if any of the disabilities enumerated in
section 2(i) of the Disabilities Act are the result of injuries sustained in a
motor accident, they can be permanent disabilities for the purpose of claiming
compensation.
14.In Civil Appeal No.7223 of 2010, [Yadava Kumar Vs. The
Divisional Manager, National Ins. Co. Ltd., and another], wherein the
Hon'ble Apex Court held that in this case, the appellant has sustained a
fracture of distal end of left radius with fracture of left ulnar styloid process
and fracture distal end of right radius with mild diastosis and soft tissues
swelling around wrist joint. The doctor has assessed the disability at 33% in
respect of the right upper limb and 21% towards left upper limb and 20% in
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C.M.A.No.1755 of 2020
respect of the whole body, which prevents the appellant from painting in view
of multiple injuries sustained by him.
14(i).The Hon'ble High Court while granting compensation refused to
award any amount towards loss of future earning. Though that point was
specifically urged before the Hon'ble High Court, the Hon'ble High Court
refused any compensation towards loss of future earning by, inter alia,
holding that: "We are of the view that, the said submission has no force for
the reason that, the appellant has not produced an iota of document to
substantiate his stand."
14(ii).While assessing compensation in accident cases, the High Court
or the Tribunal must take a reasonably compassionate view of things. It
cannot be disputed that the appellant being a painter has to earn his livelihood
by virtue of physical work. The nature of injuries which he admittedly
suffered, and about which the evidence of PW-2 is quite adequate, amply
demonstrates that carrying those injuries he is bound to suffer loss of earning
capacity as a painter and a consequential loss of income is the natural
outcome.
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C.M.A.No.1755 of 2020
14(iii).It goes without saying that in matters of determination of
compensation both the Tribunal and the Court are statutorily charged with a
responsibility of fixing a `just compensation'. It is obviously true that
determination of a just compensation cannot be equated to a bonanza. At the
same time the concept of `just compensation' obviously suggests application
of fair and equitable principles and a reasonable approach on the part of the
Tribunals and Courts. This reasonableness on the part of the Tribunal and
Court must be on a large peripheral field. Both the Courts and Tribunals in
the matter of this exercise should be guided by principles of good conscience
so that the ultimate result become just and equitable.
15.From a perusal of the observations of the Hon'ble Apex Court, if a
person suffers from permanent disability either partial or total, after the
period of treatment and recuperation and if it affects his performance to
attend to his duties and bodily functions, depending upon the age, work or
avocation and the impact and effect of the disability, etc., the Tribunal / Court
is justified in invoking multiplier method while calculating compensation.
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C.M.A.No.1755 of 2020
16.This Court is also conscious of the fact that the object of the fact
namely ordering of just compensation. In the course of said exercise, the
compensation should neither be bonanza nor should it be pittance (or)
modicum.
17.It is also pertinent to note that as Mason, due to the post effects of
the fracture, the injured would have difficulties in bending and lifting of
objects and while doing his work by climbing on ladder. Therefore, one
cannot deny the fact that the injured will not be in a position to do the work
as he did before. Hence, adoption of multiplier method by the Tribunal
appears to te proper and acceptable.
18.Further, it is seen from the award of the Tribunal that in addition to
awarding compensation by adopting multiplier method, the Tribunal also
awarded compensation for loss of earning for four months at the rate of
Rs.6,000/- per month and the same is not certainly not correct. When
compensation is awarded for disability by adopting multiplier method, the
compensation for loss of earning did not arise. Therefore, the compensation
awarded by the Tribunal for loss of earning is hereby set aside. Further, the
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C.M.A.No.1755 of 2020
compensation awarded by the Tribunal towards extra nourishment also seems
to be on the higher side and hence, the same is reduced to Rs.20,000/-. The
amounts awarded by the Tribunal under other heads appears to be reasonable
and hence, they do not need any interference by this Court. Thus, the
compensation awarded by the Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability 1,15,200/- 1,15,200/- Confirmed
2. Loss of earning 24,000/- - Set aside
3. Pain and sufferings 35,000/- 35,000/- Confirmed
4. Extra nourishment 30,000/- 20,000/- Reduced
5. Attendant charges 10,000/- 10,000/- Confirmed
6. Medical expenses 1,04,833/- 1,04,833/- Confirmed
7. Transportation 10,000/- 10,000/- Confirmed
8. Damages to clothes 1,000/- 1,000/- Confirmed
Total Rs.3,30,033/- Rs.2,96,033/- Reduced by
Rs.34,000/-
19.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.3,30,033/- is hereby reduced
to Rs.2,96,033/- 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
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C.M.A.No.1755 of 2020
along with interest and costs, less the amount already deposited, if any, within
a period of eight weeks from the date of receipt of a copy of this judgment, to
the credit of M.C.O.P.No.374 of 2017 on the file of the Motor Accidents
Claims Tribunal, Special Sub Court, Dharmapuri. On such deposit, the 1st
respondent is permitted to withdraw the award amount now determined by
this Court along with interest and costs, less the amount if any already
withdrawn by making necessary cheque application before the Tribunal. The
appellant-Insurance Company is permitted to withdraw the excess amount
lying in the credit of M.C.O.P.No.374 of 2017, if the entire award amount has
been already deposited by them. Consequently the connected Miscellaneous
Petition is closed. No costs.
19.06.2023
krk
Index : Yes / No
Internet : Yes / No
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C.M.A.No.1755 of 2020
R.KALAIMATHI, J.
krk
To
1.The Special Subordinate Judge,
Motor Accidents Claims Tribunal,
Dharmapuri.
2.The Section Officer,
VR Section, High Court,
Madras.
C.M.A.No.1755 of 2020
19.06.2023
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