Madras High Court
The Regional Manager vs Balasubramanian .... 1St on 23 March, 2023
C.M.A.(MD).No.754 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.754 of 2017
and
C.M.P(MD) No.8071 of 2017
The Regional Manager
M/s.United India Insurance Company Ltd.,
South Raja Veethi,
Thanjavur Town and Munsif,
Thanjavur District. ..... Appellant/ 2nd Respondent
-vs-
1. Balasubramanian .... 1st Respondent /Claimant
2. Veeraselvam ... 2nd Respondent/ 1st Respondent
(The 2nd respondent remained ex-parte before the
Tribunal, Hence, notice is given up)
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the fair and decretal order, dated 05.01.2016 made
in M.C.O.P.No.582 of 2013, on the file of the Motor Accident Claims
Tribunal (Special District Court) Thanjavur.
For Appellant : Mr.B.Rajesh Saravanan
For Respondents : Mr.R.Sivasubramanian – For R1
: Given up – For R2
1/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.754 of 2017
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the Insurance
Company challenging the negligence and the quantum of Award.
2. According to the injured claim petitioner, he was driving a two
wheeler on 20.02.2012. A vehicle belonging to the first respondent came in
the opposite direction and hit which has resulted in an accident and the
petitioner/claimant as well as the pillion rider sustained injuries.
3. According to the claimant, there were three fractures in right leg and
he has undergone seven operations and he was an inpatient for 280 days in
the Government Hospital at Thanjavur.
4. According to him, he is an agriculturist and running goat farms and
is also a part time driver. Hence, he prayed for a sum of Rs.32,02,500/-
(Rupees Thirty Two Lakhs Two Thousand and Five Hundred only) towards
compensation.
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C.M.A.(MD).No.754 of 2017
5. The Insurance Company had filed a detailed counter disputing the
liability and contending that the injured claimant alone was negligent in
driving his vehicle. They have further contended that the injured claimant was
not having a driving license at the time of accident. They have further
contended that the FIR and Charge Sheet were laid as against the injured
claimant and the injured claimant as admitted before the criminal Court and
paid the fine. Therefore, negligence on the part of the injured claimant stands
proved. They have further disputed the quantum of compensation that was
prayed for by the injured claimant.
6. The Tribunal, after considering the oral and documentary evidence,
arrived at a finding that the judgment of the criminal Court is not binding
upon the Tribunal. The Insurance Company has not let in any contra evidence
on the side of the claimants. Therefore, the Tribunal was pleased to hold that
the first respondent alone was driving the vehicle in a rash and negligent
manner, which has resulted in the said accident.
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C.M.A.(MD).No.754 of 2017
7. The Tribunal further found that the injured claimant was not having
valid driving license at the relevant point of time and decided to fix the
negligence on his part the rate of 10%.
8. The Tribunal further found that the claimant has incurred 15%
permanent disability and 30% of partial permanent disability. As far as the
said 15% permanent disability, the Tribunal has awarded a sum of
Rs.2,16,000/- (Rupees Two Lakhs Sixteen Thousand only) following the
multiplier method. For partial disability, the Tribunal has awarded a sum of
Rs.90,000/- (Rupees Ninety Thousand only) at the rate of Rs.3,000/- (Rupees
Three Thousand) per percentage of the disability. For pain and sufferings, a
sum of Rs.50,000/- (Rupees Fifty Thousand only) has been awarded and for
loss of amenities, another sum of Rs.50,000/- (Rupees Fifty Thousand only)
has been awarded and a sum of Rs.56,000/- (Rupees Fifty Six Thousand only)
has been awarded by the Tribunal as attender charges. Another sum of
Rs.18,000/- (Rupees Eighteen Thousand only) has been awarded by the
Tribunal for having assistance after he was discharged from the hospital. A
sum of Rs.5,000/- (Rupees Five Thousand only) has been awarded for loss of
estate and sum of Rs.20,000/- (Rupees Twenty Thousand only) has been
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C.M.A.(MD).No.754 of 2017
awarded for Transport expenses and another sum of Rs.20,000/- (Rupees
Twenty Thousand only) has been awarded as extra nourishment. Since the
injured claimant was in hospital for 280 days, a sum of Rs.70,000/- (Rupees
Seventy Thousand only) has been awarded for loss of income at the relevant
point of time. This award is under challenge in the present appeal.
9. The learned counsel appearing for the appellant/Insurance Company
has contended that the injured claimant admitted before the Criminal Court
and therefore, he cannot contend that the offending vehicle viz., the vehicle
belonging to the first respondent is responsible for the accident. When the
negligence is upon the injured claimant himself, the Insurance Company is
not liable to pay any compensation. He further contended that the claimants
have not established any functional disability. The Tribunal ought not to have
adopted the multiplier method for arriving at a compensation for 15%
permanent disability. He further contended that the rate of interest ought not
to have been awarded at the rate of 9%. He further pointed out that when the
injured claimant was not having a valid driving license at the time of the
accident, the Tribunal ought to have deducted 50% from the compensation
and mere deduction of 10% is not legally sustainable. In the above said
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C.M.A.(MD).No.754 of 2017
grounds, the learned counsel appearing for the appellant/ Insurance Company
sought for interference of this Court in the Appeal.
10. Per contra, the learned counsel appearing for the first respondent
had contended that the Insurance Company has not let in any evidence
whatsoever to fix the liability upon the injured claimant. The order passed by
the Criminal Court is not binding upon the Tribunal and therefore,
independent evidence has to be let in before the Tribunal to establish that the
claimant himself was responsible for the accident. He further contended that
being an agriculturist, he would not be in a position to continue his work any
further, in view of the disability and therefore, the Tribunal was right in
adopting the multiplier method. Therefore, he prayed for sustaining the award
passed by the Tribunal.
11. I have carefully considered the submissions made by the learned
counsel on either side.
12. As far as the main ground of the learned counsel appearing for the
appellant relating to the negligence on the part of the claimant is concerned,
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C.M.A.(MD).No.754 of 2017
he primarily relied upon the judgment of the criminal Court, in which, the
injured claimant is said to have paid fine. However, document has not been
marked. That apart, the judgment of the criminal Court is not binding upon
the Tribunal and if the Insurance Company wants to establish that the injured
claimant himself was responsible for the accident, they should have let in
independent evidence before the Tribunal. In the present case, the Insurance
Company has not marked any document or examined anyone on their side to
establish that the injured claimant himself was responsible for the accident.
Therefore, this Court is constrained to confirm the finding of the Tribunal that
the offending vehicle belonging to the first respondent is alone responsible
for the said accident.
13. The learned counsel appearing for the appellant has pointed out that
when there is no plea relating to functional disability, the Tribunal ought not
to have adopted the multiplier method. It is seen from the nature of injuries
and the avocation of the claimant, this Court is of the view that the Tribunal
was not correct in adopting the multiplier method. Therefore, in view of the
fact that the Tribunal has fixed the permanent disability at 45%, the total loss
of income for the permanent disability arising out of the said disability can be
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C.M.A.(MD).No.754 of 2017
fixed at Rs.1,35,000/- (Rupees One Lakh and Thirty Five Thousand only)
(45%x 3000). Therefore, the amount awarded by the Tribunal under the head
of permanent disability and the partial permanent disability are hereby set
aside and in the said place, this Court is inclined to award a sum of
Rs.1,35,000/- (Rupees One Lakh Thirty Five Thousand only). As far as the
other heads are concerned, considering the fact that the injured claimant has
been in hospital for 280 days, this Court is not inclined to interfere in anyone
of the other heads.
14. The learned counsel appearing for the appellant had contended that
the injured claimant was not having any valid driving licence at the relevant
point of time and hence, more percentage ought to have been deducted from
the award amount. In the present case, the entire negligence has been fixed
upon the vehicle belonging to the first respondent herein. The Tribunal has
already deducted 10% towards not holding of the driving license. Therefore,
this Court is of the view that the said 10% deduction would be suffice and no
interference is called for from this Court for the said deduction. In view of the
above said facts the award is modified to the following effect.
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C.M.A.(MD).No.754 of 2017
15. The Tribunal has, however, fixed the rate of interest at the rate of
9% for the said relevant period. This Court is of the view that it is on the
higher side and the rate of interest is fixed only to 7.5% per annum.
16. In view of the above said deliberations, the quantum of the award
can be classified as follows:
(i) The permanent disability of 45%x3000 = Rs.1,35,000/-
(ii) Pain and sufferings : Rs.50,000/-
(iii) Loss of amenities : Rs.50,000/-
(iv) Attender Charges : Rs.56,000/-
(v) Additional Attender Charges
(3 months after discharge) : Rs.18,000/-
(vi) Loss of estate : Rs.5,000/-
(vii) Transport Expenses : Rs.20,000/-
(viii) Extra Nourishment : Rs.20,000/-
(ix) Loss of income while the claimant
was in hospital at the rate of Rs.250 per day: Rs.70,000/-
Total : Rs.4,24,000/-
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C.M.A.(MD).No.754 of 2017
17. Out of Rs.4,24,000/- (Rupees Four Lakhs and Twenty Four
Thousand only), 10% deduction should be made towards not holding of
driving license. Therefore, the total compensation amount would come to
Rs.3,81,600/- (Rupees Three Lakhs Eighty One Thousand and Six Hundred
only). The said amount will carry interest at the rate of Rs.7.5% per annum
from 03.06.2013 onwards. In view of the above said modification of the
award the Tribunal is directed to refund the excess amount along with the
accrued interest to the Insurance Company.
18. In view of the above said facts, this Civil Miscellaneous Appeal is
partly allowed. There shall be no order as to costs. Consequently connected
Miscellaneous Petition is closed.
23.03.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.754 of 2017
To
1. The Motor Accident Claims Tribunal
(Special District Court)
Thanjavur.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.754 of 2017
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.754 of 2017
23.03.2023
https://www.mhc.tn.gov.in/judis
