Madras High Court
The Branch Manager vs Gopal on 28 June, 2023
C.M.A.No.4653 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2023
CORAM
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
C.M.A.No.4653 of 2019
The Branch Manager,
United India Insurance Co. Ltd.,
Ulundurpet. ... Appellant
Vs.
1.Gopal
N.A.Hanifa Sahib (Deceased)
2.Waheed
3.Hakkim … Respondents
Prayer : Civil Miscellaneous Appeal filed under section 173 of Motor
Vehicle Act against the judgment and decree dated 09.12.2004 made in
MACT O.P.No.367 of 2002 on the file of the Motor Accident Claims
Tribunal, Principal Subordinate Judge, Cuddalore.
For Appellants : Mr.M.J.Vijayaraaghavan
For Respondents : No appearance
1/9
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C.M.A.No.4653 of 2019
JUDGMENT
This Civil Miscellaneous Appeal arises against the award passed by
the Motor Accident Claims Tribunal, Principal Subordinate Judge,
Cuddalore, in MACT O.P.No.367 of 2002 dated 09.12.2004.
2. The Insurance Company is the appellant herein, preferred the
above appeal challenging the award of the Motor Accident Claims Tribunal,
Principal Subordinate Judge, Cuddalore, in MACT O.P.No367 of 2002 on
the ground of quantum.
3. The factum of the accident, manner of the accident, rash and
negligent driving of the driver of the offending vehicle are not in dispute in
this appeal and hence, the finding rendered by the Tribunal in this regard are
hereby confirmed.
4. It is the case of the claim petitioner that on 01.04.2000 at about
06.00 hours, in Erumbur main road the vehicle bearing Regn.No.TN-45-Y-
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C.M.A.No.4653 of 2019
9995 belonging to the 1st respondent insured with the 2nd respondent, driver
by its driver, in a high speed, in a rash and negligent manner, dashed against
the petitioner. Hence, the accident occurred, due to which, the petitioner
sustained grievous injuries. Hence, the claim petition.
5. Before the Tribunal, on behalf of the claim petitioner, P.W.1 and
P.W.2 were examined and Ex.P1 to Ex.P9 were marked and on the side of
the Respondents R.W.1 was examined and Ex.R1 to R3 were marked.
6. On appreciation of materials before it, the Tribunal awarded
compensation as follows:
(a)Loss of income Rs. : 9,000/-
(b)Pain and suffering :
Rs. 10,000/-
(c)Extra nourishment Rs. : 2,000/-
(d)Attender charges Rs. : 3,000/-
(e)Permanent disability :
Rs. 70,000/-
(f)Loss of earning capacity :
Rs. 50,000/-
(g)Medical expenses Rs. : 183/-
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Rs. 1,44,183/-
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The said sum was directed to be paid by the respondents 2, 3 and the
appellant herein jointly or severally to the claim petitioner, along with
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C.M.A.No.4653 of 2019
interest at 9% per annum from the date of petition till the date of realization.
Aggrieved against the same, the appellant / Insurance Company came out
with the present appeal.
7. Learned counsel for the appellant / Insurance Company submitted
that the Tribunal was not justified in awarding a huge compensation for the
injuries namely fracture of 9th Rib by the 1st respondent in a road traffic
accident. The Tribunal ought to have seen that the 1st respondent admittedly
not suffered any schedule injury as contemplated under the provision of Part
I and II of Schedule I of the Workmen Compensation Act, 1923. The 1st
respondent sustained only fracture of 9th Rib, which cannot be construed as
permanent disability. The Tribunal failed to appreciate the evidence of
P.W.2 in respect of the percentage of disability assessed to the extent 35%,
which is in any event without any basis. The Tribunal failed to consider that
the 1st respondent failed to establish his age, avocation and income by
producing valid and acceptable oral and documentary evidence and fixed
the monthly income of the 1st respondent at the rate of Rs.3000/- per month,
which is unreasonable. The Tribunal mechanically awarded Rs.50,000/-
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C.M.A.No.4653 of 2019
towards loss of earning power, since the claim petitioner sustained fracture
at 9th Rib and hence, the entire amount awarded under the said head is liable
to be set aside. The compensation awarded by the Tribunal under other
heads are also highly excessive and rate of interest of 9% per annum to the
amount of Rs.1,44,183/- awarded from the date of filing claim petition by
the claims Tribunal is also liable to be scaled down to 7.5% as per the ruling
of the Apex Court reported in AIR 2005 SC 2157. In any event, the
compensation awarded by the Tribunal in all is very excessive, exorbitant
and arbitrary. Hence, the same is liable to be scaled down.
8. Heard the learned counsel for the appellant and perused the
materials available on record.
9. After going through the oral and documentary evidence, the
Tribunal awarded Rs.70,000/- towards Permanent disability and this Court,
on perusal of Ex.P7, the disability certificate issued by P.W.2 / the doctor,
inclined to fix Rs.1000/- for per percentage for 35% disability.
Accordingly, Rs.35,000/- is fixed for 35% disability. The Tribunal awarded
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C.M.A.No.4653 of 2019
Rs.50,000/- towards loss of earning capacity, since the petitioner sustained
fracture on 9th rib in his chest and this Court is inclined to award Rs.25,000/-
towards loss of earning capacity. The Tribunal awarded Rs.10,000/- towards
pain and suffering which appears to be higher side and hence, it has to be
reduced to Rs.5,000/- and the Tribunal awarded Rs.3,000/- towards attender
charges which appears to he excessive and it has to be reduced to Rs.2,000/-
. The Tribunal awarded Rs.2,000/- towards extra nourishment which is also
excessive and hence, it has to be reduced to Rs.1000/-. The Tribunal
awarded Rs.9,000/- towards loss of income and Rs.183/- towards medical
expenses which appears to be just and reasonable and same are hereby
confirmed. Insofar as the rate of interest fixed by the Tribunal is concerned,
the Tribunal fixed interest at the rate of 9% per annum for the award amount
from the date of filing the claim petition and as per decision rendered by the
Hon'ble Apex Court reported in AIR 2005 SC 2157, this Court is inclined to
fix the interest at 7.5% per annum for the award amount.
10. In the light of the above discussion, the modified award is as
follows:
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C.M.A.No.4653 of 2019
Sl.Nos. Heads Compensation
1. Disability Rs.35,000/-
2. Loss of earning power Rs.25,000/-
3. Pain and suffering Rs.5,000/-
4. Loss of income Rs.9,000/- (Rs.100x30=Rs.3000x3 months)
5. Extra nourishment Rs.1,000/-
6. Attender charges Rs.2,000/-
7. Medical expenses Rs.183/-
Total Rs.77,183/-
Accordingly, the amount awarded by the Tribunal is modified from
Rs.1,44,183/- to Rs.77,183/- together with interest at 7.5% per annum from
the date of petition till the date of deposit of compensation.
11. In fine,
(i) this Civil Miscellaneous Appeal stands partly allowed, modifying
the compensation from Rs.1,44,183/- to Rs.77,183/- with 7.5% interest per
annum to the extent indicated above. No Costs.
(ii) the Insurance Company is directed to deposit the modified award
amount, with interest and costs before the Tribunal, within a period of six
weeks from the date of receipt of a copy of this order.
(iii) on such deposit being made, claimant is entitled to get the
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C.M.A.No.4653 of 2019
modified award amount. The claim Petitioner is permitted to withdraw the
modified award amount with proportionate interest and costs, less the award
amount already withdrawn, if any, by filing necessary application before the
Tribunal.
(iv) the claim Petitioner is directed to pay the court fee, if any, for the
enhanced compensation amount and the Registry is directed to draft the
decree only after the receipt of Court fee.
28.06.2023
Index:yes/no
Internet:yes/no
ata
To
The Principal Subordinate Judge,
Motor Accident Claims Tribunal,
Cuddalore.
https://www.mhc.tn.gov.in/judis
C.M.A.No.4653 of 2019
A.A.NAKKIRAN.J.,
ata
C.M.A.No.4653 of 2019
28.06.2023
https://www.mhc.tn.gov.in/judis
