Madras High Court
The Branch Manager vs N.Rajendran on 30 June, 2023
C.M.A.No.239 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.06.2023
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.No.239 of 2021
and
C.M.P.No.1537 of 2021
The Branch Manager,
Reliance General Ins. Co. Ltd.,
3rd floor, 408, Sakthi Super Market,
Perundurai road,
Erode. .. Appellant
Vs.
1.N.Rajendran
2.Herculean Gautham
3.S.Senthil Kumar .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
13.11.2019 made in M.C.O.P.No.129 of 2016 on the file of the Motor
Accidents Claims Tribunal, Sub Court, Perundurai.
For Appellant : Ms.C.Bhuvanasundari
For R1 : No appearance
1/13
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
JUDGMENT
Aggrieved by the award of the Tribunal in respect of negligence as well
as quantum, the Insurance Company has preferred this Civil Miscellaneous
Appeal against the judgment and decree passed in M.C.O.P.No.129 of 2016
dated 13.11.2019 by the Motor Accidents Claims Tribunal / Sub Court,
Perundurai.
2.The claim petition was filed under Section 166 of the Motor Vehicles
Act, 1988, claiming compensation of Rs.25,00,000/- for the injuries sustained
by him in the accident that occurred on 30.01.2016.
3.The Tribunal on hearing both sides arguments and upon
consideration of oral and documentary evidence, has granted compensation
for a sum of Rs.13,84,448/- with 7.5% interest per annum from the date of
petition till the date of deposit.
4.Despite the receipt of notice, the 1st respondent / sole claimant has
neither appeared in person nor chosen to be represented through counsel.
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
5.The learned counsel for appellant – Insurance Company would
strenuously contend that for the injuries and fractures suffered by the
claimant, the Tribunal has granted compensation both on percentage method
as well as by adopting multiplier method, which is totally unwarranted.
Considering the fractures suffered by the claimant, he is only entitled to
amount computed on percentage method. She would further state that the
amounts awarded under other heads are reasonable and needs no interference
and prayed for reducing the compensation.
6.Heard the learned counsel for the appellant and perused the entire
materials on record.
7.It is the evidence of P.W.1 / injured claimant that on 30.01.2016 at
about 04.30 P.M., while he was driving the auto bearing Registration No.TN
56 B 4793 with passengers along the Perundurai R.S. Canal road near Kongu
Engineering College, Gate No.I, was proceeding towards north, a Honda Brio
car bearing Registration No.TN 37 CC 9621, came in a rash and negligent
manner and at a great speed, dashed against the auto. Due to the impact, he
was thrown out from the auto and sustained very serious injuries and due to
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
the rash and negligent driving of the driver of the above said car is solely
responsible for the accident, is not in dispute.
8.The claimant was stated to be an Auto Driver, earning a sum of
Rs.25,000/- per month. It is the evidence of P.W.1 that on account of the
accident, he suffered fracture of right pubic ramus, fracture of D1 and
sustained liver laceration. As per Ex.P4 / wound certificate of Covai Medical
Centre, Erode, he was in hospitalization from 30.01.2016 to 19.02.2016. It
could be seen from Ex.P10 / discharge summary of Covai Medical Centre that
the claimant herein sustained head injury, fracture of left temporal bone with
underlying hematoma, fracture – right greater trochanteric, fracture transverse
process of D1 vertebra, Grade-II liver laceration and fracture of right 3rd and
4th ribs. The said discharge summary is enclosed with the details of follow up,
CT, brain reports taken on various dates. It is also relevant to observe the
treatment given to the injured, MRI brain was done – DAI (Diffusal Axonal
Injury), Grade-II liver laceration. He was treated conservatively for the pubic
ramus fracture and fracture greater trochanteric. After 19 days, the CT brain
(plain) done and showed resolving conditions.
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
9.It is pertinent to note that the Doctor who treated the injured has been
examined as P.W.3 (Doctor John Gurupatham of Covai Medical Centre,
Erode). The disability certificate issued by the Medical Board is Ex.C1, which
reflects the fact that disability was assessed as 50%. Therefore, the crucial
question is whether for the purpose of granting compensation for disability,
whether a lumpsum to be granted based on the disability suffered or
multiplier method invoked by the Tribunal is acceptable to be seen.
10.The Hon'ble Supreme Court has observed as to how the disability
details to be appreciated in Rajkumar Vs. Ajaykumar reported in [2011 (1)
SCC 343], wherein it has been stated that the Tribunal has to first decide
whether there is any permanent disability and if so the extent of such
permanent disability. This means that the tribunal should consider and decide
with reference to the evidence:
(i)Whether the disablement is permanent or temporary;
(ii)If the disablement is permanent, whether it is permanent total
disablement or permanent partial disablement;
(iii)If the disablement percentage is expressed with reference to any
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
specific limb, then the effect of such disablement of the limb on the
functioning of the entire body, that is the permanent disability suffered by the
person.
11.It is relevant to note the observations made by the Hon'ble Apex
Court in Arvind Kumar Mishra Vs. New India Assurance Company
Limited and another reported in [(2010) 10 SCC 254]. It has been observed
that we do not intend to review in detail state of authorities in relation to
assessment of all damages for personal injury. Suffice it to say that the basis
of assessment of all damages for personal injury is compensation. The whole
idea is to put the claimant in the same position as he was in so far as money
can. Perfect compensation is hardly possible but one has to keep in mind that
the victim has done no wrong; he has suffered at the hands of the wrongdoer
and the court must take care to give him full and fair compensation for that he
had suffered.
11(i).In Kerala SRTC Vs. Susamma Thomas, the Hon'ble Supreme
Court laid down the following principles which are extracted hereunder:
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
“... 13. The multiplier method involves the
ascertainment of the loss of dependency or the multiplicand
having regard to the circumstances of the case and
capitalizing the multiplicand by an appropriate multiplier.
The choice of the multiplier is determined by the age of the
deceased (or that of the claimants whichever is higher) and
by the calculation as to what capital sum, if invested at a rate
of interest appropriate to a stable economy, would yield the
multiplicand by way of annual interest. In ascertaining this,
regard should also be had to the fact that ultimately the
capital sum should also be consumed-up over the period for
which the dependency is expected to last.”
12.It is relevant to extract the observations made by the Hon'ble
Supreme Court in Yadava Kumar Vs. Divisional Manager, National
Insurance Company Limited and another, reported in [(2010) 10 SCC 341].
It has been held that The High Court and the Tribunal must realize that there
is a distinction between compensation and damage. The expression
compensation may include a claim for damage but compensation is more
comprehensive. Normally damages are given for an injury which is suffered,
whereas compensation stands on a slightly higher footing. It is given for the
atonement of injury caused and the intention behind grant of compensation is
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
to put back the injured party as far as possible in the same position, as if the
injury has not taken place, by way of grant of pecuniary relief. Thus, in the
matter of computation of compensation, the approach will be slightly more
broad based than what is done in the matter of assessment of damages. At the
same time it is true that there cannot be any rigid or mathematical precision in
the matter of determination of compensation.
13.If the Tribunal concludes that there is permanent disability, then it
will proceed to certain extent. If the Tribunal ascertains the actual extent of
permanent disability of the claimant, based on the Medical evidence, it has to
determine whether such permanent disability has affected or will affect his
earning capacity.
14.As regards the injuries and fractures sustained by the claimant has
elaborately been discussed as mentioned supra, the claimant who was aged
about 35 years, happened to be an Auto Driver, had suffered right 3, 4, 5 ribs
fracture and hip fracture apart from punctured wound in the liver. Of course,
the disability suffered is a partial permanent disability. On perusal of the
disability certificate issued by the Medical Board, it was not assessed with
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
reference to a limb and it was assessed for the whole body. There cannot be
any second opinion that the claimant could carry out his regular activities and
work difficulties on account of the partial permanent disability he suffers. As
an Auto Driver, with the above said fractures, especially head injury and other
fractures over hip, certainly he would find difficulties in sitting for long hours.
In spite of the above said partial permanent disability, though the claimant
could carry on his activities and functions, he may not be in a position to
effectively do the same as he done before. In the process of arriving at a just
and fair compensation, this Court deems fit to invoke multiplier method for
granting compensation for the disability suffered. For the purpose of
calculation, disability assessed is taken at 20%. The income of the claimant is
fixed at Rs.11,000/- per month taking into consideration the date of accident,
age and avocation.
15.As per the law laid down by the Hon'ble Supreme Court in
Tmt.Sarla Verma & others Vs. Delhi Transport Corporation & another,
reported in [2009 (2) TNMAC 1 SC Supreme Court], the corresponding
multiplier is '16'. For the purpose of loss suffered on account of the disability,
the following formula emerges.
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
Rs.11,000/- X 12 X 16 X 20/100 = Rs.4,22,400/-
16.The Tribunal has granted amounts by calculating on percentage
method and by invoking multiplier method. As the amounts is calculated by
invoking multiplier method, the amount granted by calculating by percentage
method is hereby set aside.
17.With regard to attendant charges a sum of Rs.20,000/- and for loss
of amenities, a sum of Rs.30,000/- is granted. As regards transportation is
concerned, the amount awarded by the Tribunal appears to be on the lower
side and hence, a sum of Rs.5,000/- is granted in addition to the amount
already granted by the Tribunal for transportation.
18.As regards the other heads, the amounts awarded by the Tribunal
appears to be reasonable and hence needs no interference.
19.Thus, the compensation awarded by the Tribunal is modified as
follows:
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Loss of earning capacity 10,08,000/- 4,22,400/- Reduced
2. For disability 1,50,000/- - Set aside
3. Extra nourishment 10,000/- 10,000/- Confirmed
4. Attendant charges - 20,000/- Granted
5. Pain and sufferings 25,000/- 25,000/- Confirmed
6. Medical expenses 1,81,448/- 1,81,448/- Confirmed
7. Transportation 10,000/- 15,000/- Enhanced
8. Loss of amenities - 30,000/- Granted
Total Rs.13,84,448/- Rs.7,03,848/- Reduced by
Rounded off to Rs.6,80,448/-
Rs.7,04,000/-
20.In the result,
20(i).This Civil Miscellaneous Appeal is partly allowed and the
compensation awarded by the Tribunal at Rs.13,84,448/- is hereby reduced to
Rs.7,04,000/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit.
20(ii).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 eight
weeks from the date of receipt of a copy of this judgment, to the credit of
M.C.O.P.No.129 of 2016 on the file of the Motor Accidents Claims Tribunal,
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
Sub Court, Perundurai.
20(iii).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 filing necessary cheque
application before the Tribunal.
20(iv).The appellant-Insurance Company is permitted to withdraw the
excess amount lying in the credit of M.C.O.P.No.129 of 2016, if the entire
award amount has been already deposited by them. Consequently the
connected Miscellaneous Petition is closed. No costs.
30.06.2023
krk
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
To
1.The Subordinate Judge,
Motor Accidents Claims Tribunal,
Perundurai.
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.239 of 2021
R.KALAIMATHI, J.
krk
C.M.A.No.239 of 2021
30.06.2023
https://www.mhc.tn.gov.in/judis
