Madras High Court

The Branch Manager vs M.Karthik ...1St on 23 March, 2023

                                                                                     C.M.A.(MD)No.529 of 2022


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 23.03.2023

                                                        CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                                 C.M.A.(MD)No.529 of 2022


                The Branch Manager,
                ICICI Lombard General Insurance Company Limited.,
                Office at Second and Third Floor,
                Chottabhai Centre, Nungambakkam High Road,
                Chennai.                                    ...Appellant/2nd respondent


                                                          Vs.
                1.M.Karthik                                     ...1st Respondent/Petitioner (Claimant)
                2.Krishnamurthy                                 ...2nd Respondent/1st Respondent


                PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
                Motor Vehicles Act, 1988, to call for the records pertaining to the fair and
                decreetal order passed by the Motor Accident Claims Tribunal Chief Judicial
                Magistrate, Karur in M.C.O.P.No.73 of 2019 dated 08.12.2021, set aside the same
                by allowing the appeal.


                                        For Appellant    : Mr.P.Pethu Rajesh
                                        For R1           : J.Madhan
                                        For R2           : No Appearance



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https://www.mhc.tn.gov.in/judis
                                                                                        C.M.A.(MD)No.529 of 2022


                                                          JUDGMENT

Challenging the award passed by the Motor Accident Claims

Tribunal/Chief Judicial Magistrate, Karur in M.C.O.P.No.73 of 2019 dated

08.12.2021, the present Civil Miscellaneous Appeal is filed.

2.For the sake of convenience, the parties are referred to herein, as per

their rank before the Trial Court.

3.The brief facts, leading to the filing of this Civil Miscellaneous

Appeal, are as follows:-

(i)on 30.01.2019, when the injured claimant was proceeding in the

Karur-Coimbatore main road in a TVS Moped as a pillion rider along with the

rider namely, Venugopal in a slow and steady manner by keeping extreme left side

of the road, a Maruti Alto 800 Car bearing Registration No.TN-37-CV-6673 came

in the opposite direction in a rash and negligent manner and in a high speed

without observing the traffic rules, dashed against the moped and as a result, the

rider and the pillion rider were thrown out from the vehicle and sustained injuries.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.529 of 2022

(iii)The claimant was working as a labour and earning a sum of

Rs.25,000/- per month. The claimant also spent a sum of Rs.2,00,000/- towards

treatment. Hence, the claim petition was filed by the claimant seeking

compensation.

(iv)The second respondent before the tribunal has filed a counter

affidavit stating that the rider of the two wheeler who drove the vehicle was only

negligent in driving the vehicle. While he was trying to cross the road all of a

sudden, he lost the control and invited the accident. Further, the rider of the two

wheeler did not have any valid license at the relevant point of time. He also

denied the medical expenses for the alleged injuries.

4. Before the Tribunal, on the side of the claimant P.W.1 to P.W.3 were

examined and Ex.P1 and Ex.P31 were marked. On the side of the respondents no

oral and documentary evidence had been marked.

5.The tribunal on appreciation of entire evidence available on record had

fixed the negligence on the part of the driver of the car and awarded the

compensation as follows:



https://www.mhc.tn.gov.in/judis
                                                                                          C.M.A.(MD)No.529 of 2022




                        S.No.           Description                      Amount
                        1.              Permanent disability             Rs.7,09,632/-
                        2.              Pain and suffering               Rs. 50,000/-
                        3.              Transport Expenses               Rs. 10,000/-
                        4.              Attendant Charges                Rs. 10,000/-
                        5.              Nutrition                        Rs. 10,000/-
                        6.              Medical Bills                    Rs.1,11,906/-
                        7.              Loss of Amenities                Rs. 10,000/-
                        8.              Loss of damage to clothes        Rs.    2,000/-
                        9.              Future Treatment                 Rs.   40,000/-
                                                                    Total Rs.9,53,538/-

Challenging the same, the present Civil Miscellaneous Appeal has been filed by

the Insurance Company.

6.I have heard the learned counsel appearing on either side and also

perused the materials available on record.

7.The learned counsel appearing for the appellant would submit that the

claimant has not established the permanent disability. He was not subjected to

medical board, whereas he was examined by a private doctor. The Tribunal has

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.529 of 2022

rightly disbelieved the permanent disability calculated by P.W.3. However, the

Tribunal had erred in applying the multiplier method in the absence of any

evidence to show that the injuries sustained by the claimant in the accident

incapacitated the claimant from doing any other work.

8.Despite service of notice, none appeared on behalf of the second

respondent.

9.In view of the above submission, now the point arises for consideration

in this appeal is:

(1) Whether the Tribunal is right in adopting the multiplier method in

the absence of any evidence to prove the loss of total earning capacity?

10.It the case of the claimant that the claimant was admitted as an

inpatient from 30.01.2019 to 12.02.2019. Though P.W.3 was examined in this

regard and Ex.P28 was filed to show that the claimant had suffered serious

injuries, it is to be noted that P.W.3 has not treated the claimant at the time when

he was admitted as an inpatient. He has just given an opinion on the basis of some

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.529 of 2022

x-rays taken after two yeas of the accident and the scars in the body of the

claimant. In the cross examination, P.W.3 himself admitted that he has not treated

the claimant at any point of time and he is not an expert.

11.The claimant was treated as an inpatient only for 15 days. Further, he

has not subjected himself to medical board to assess the disability. Hence, the

evidence given by P.W.3 merely on the basis of some x-rays taken after two years

cannot be certain and the trial Court had rightly rejected the disability calculated

by P.W.3 and fixed the permanent disability at 22%. However, the Tribunal had

wrongly adopted the multiplier method. In the absence of any evidence to show

that there was total permanent disability, which incapacitated the person from

doing any other work, the multiplier method cannot be applied automatically. The

multiplier method has to be calculated only when the total earning capacity is

obstructed and the person is obstructed from doing any other work due to the

injuries sustained in the accident. In no other cases, the multiplier method can be

adopted. Such view of the matter, this Court is of the view that the multiplier

method adopted by the Tribunal for the disability said to have been suffered by the

claimant is not correct. Accordingly, the same is set aside. Considering the

disability sustained by the claimant Rs.5,000/- (Rupees Five Thousand only) per

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.529 of 2022

percentage is awarded by this Court.

12.In the result, the Civil Miscellaneous Appeal is allowed and the

compensation awarded by the Tribunal is reduced as given below:

                        S.No.           Description                      Amount
                        1.              Permanent disability             Rs.1,10,000/-
                        2.              Pain and suffering               Rs. 50,000/-
                        3.              Transport Expenses               Rs. 10,000/-
                        4.              Attendant Charges                Rs. 10,000/-
                        5.              Nutrition                        Rs. 10,000/-
                        6.              Medical Bills                    Rs.1,11,906/-
                        7.              Loss of Amenities                Rs. 10,000/-
                        8.              Loss of damage to clothes        Rs.    2,000/-
                        9.              Future Treatment                 Rs.   50,000/-
                                                                    Total Rs.3,63,906/-

13.The appellant is directed to deposit the compensation amount

i.e., Rs.3,63,906/- (Rupees Three Lakhs Sixty Three Thousand Nine Hundred and

Six only) as modified by this Court with interest at the rate of 7.5% per annum

from the date of petition till the date of realization to the credit of M.C.O.P.No.73

of 20119, on the file of the Motor Accident Claims Tribunal/Chief Judicial

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.529 of 2022

Magistrate Court, Karur within a period of one month from the date of receipt of a

copy of this judgment, less the amount, if any already deposited. On such deposit,

the claimant is permitted to withdraw the said amount, less the amount if any

already withdrawn, by making necessary application before the Tribunal. No

costs.

23.03.2023 NCC : Yes/No Index : Yes/No Internet : Yes/No ta