Madras High Court
Sbi General Insurance Company Ltd vs Muthukumar ...1St on 19 October, 2023
C.M.A(MD)No.327 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE P.B.BALAJI
C.M.A(MD)No.327 of 2020
and
C.M.P(MD)No.4262 of 2020
SBI General Insurance Company Ltd.,
Rep. by its Regional Claims Manager,
Having its Regional Office at 3rd Floor,
Good Shepard Square,
No.82, Kodambakkam High Road,
Nungambakam, Chennai-600 034
and having its Branch Office at 2nd Floor,
Ward No.A1, Block No.15,
TSO 949-10, Door No.104,
Excellence Building, Race Course Road,
Coimbatore-641 018. ...Appellant/2nd Respondent
.vs.
1.Muthukumar ...1st Respondent/Petitioner
2.Manindar Kaur Multani ...2nd Respondent/ 1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicles Act, 1988 against the judgment and decree made in
M.C.O.P.No.3 of 2018 on the file of the Motor Accident Claims
Tribunal (Sub-Court), Thuraiyur, dated 18.09.2019.
For Appellant :Mr.S.Gokulraj
For Respondents :No appearance
1/8
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.327 of 2020
JUDGMENT
*********
[Judgment of the Court was made by RMT.TEEKAA RAMAN.,J.]
This Civil Miscellaneous Appeal is directed againt the
judgement and award made in M.C.O.P.No.3 of 2018, dated
18.09.2019, on the file of the Motor Accident Claims Tribunal (Sub-
Court), Thuraiyur.
2. Challenging the award passed in M.C.O.P.No.3 of 2018 by
the Motor Accident Claims Tribunal (Sub-Court), Thuraiyur, this
appeal has been filed by the SBI General Insurance Company Ltd.
The first respondent is the owner of the lorry. The second
respondent is the insurer of the lorry.
3. The injured, who is the claimant, has filed the above
M.C.O.P.No.3 of 2018 before the Motor Accident Claims Tribunal
(Sub-Court), Thuraiyur claiming compensation of Rs.25,00,000/- for
the functional disability happened to him due to the road transport
accident on 03.06.2015.
4. The factum of accident as narrated in the claim petition was
not disputed by the appellant/Insurance Company before the
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C.M.A(MD)No.327 of 2020
Tribunal. However, they have disputed the manner of the accident
as spoken by P.W.1.
5. To substantiate the claim petition, the injured examined
himself as P.W.1 and the cleaner, who travelled along with the
injured in the lorry, was examined as P.W.2. Ex.P1 to Ex.P14 were
marked. On the side of the respondent, R.W.1 was examined and
Ex.R1-policy of the lorry was marked.
6. On consideration of both oral and documentary evidence,
the Tribunal has come to the conclusion that the lorry insured with
appellant/Insurance Company was parked in the middle of the road
has not displayed any signal and resultantly, the lorry driven by the
injured came and dashed from the behind and sustained injury and
accordingly, held that the driver of the appellant lorry is at
negligence and both owner of the vehicle and Insurance Company
are jointly and severally liable to pay the compensation. Further,
taking into consideration the nature of the injury sustained by the
claim petitioner, the tribunal ascertained the injury at 80% and
applied the fomula and arrived at a compensation of
Rs.22,36,112/-.
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C.M.A(MD)No.327 of 2020
7. The appellant/Insurance Company would contend that
there is a contributory negligence on the part of the claim petitioner.
Further, the Tribunal has awarded a sum of Rs.18,00,000/- for
partial permanent disability and Rs.30,000/- was awarded for loss of
earning capacity. The amount awarded for loss of earning capcity is
escessive and it is double headed and hence, on the point of
quantum of compensation, the insurance company has filed the
present appeal.
8. We have given our anxious consideration to the contention
raised by the appellant/Insurance Company and the respondent
claim petitioner and also perused the evidence of P.W.1. However,
P.W.2, the cleaner, who has accompanied with P.W.1, also
corroborated the evidence of P.W.1 with regard to the manner of
accident. Admittedly, the offending standing in the second portion
of the road without any indication and therefore, the lorry driven by
P.W.1 dashed behind the parked vehicle on the left hand side of the
road and hence, we find that the finding of the tribunal that the
accident had taken place due to improper parking of the vehicle on
the part of the driver of the offending vehicle, is found to be just
and proper and does not require any interference at this appellate
stage.
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C.M.A(MD)No.327 of 2020
9. Accordingly, the plea of contributory negligence raised by
the appellant/Insurance Company stands negatived. On the point of
quantum of compensation, we have given our anxious consideration
and also various heads of compensation awarded by the tribunal
were considered. As per Ex.P9 driving licence, the injured is aged
about 40 years on the date of accident and hence, the Tribunal
applied multiplier of '15' and the Tribunal has rightly fixed the
notional income of the injured at Rs.10,000/-.Further more, based
upon the medical evidence, Ex.P11 and Ex.P5 the Tribunal has
rightly come to the conclusion that the injured being a driver has
sustained 80% disability below knee on the right leg. Accordingly,
the Tribunal held that the disability is functional disability and the
same was affecting the earning capacity of the petitioner, therefore,
the Tribunal has awarded a sum of Rs.18,00,000/- for partial
permanent disability. We find that the finding of the tribunal is just
and proper and there is no interference required in the said findings.
10. Hence, we find that the tribunal has awarded a sum of
Rs.30,000/- for loss of earning capacity and awarded a sum of
Rs.18,00,000/- for partial permanent disability. The amount of
Rs.30,000/- awarded by the Tribunal for loss of earning capacity is
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C.M.A(MD)No.327 of 2020
excessive and the same is set aside. The compensation awarded in
all other heads are just and reasonable and the same were
confirmed. Accordingly, the Civil Miscellaneous Appeal is partly
allowed.
11.The award of the Tribunal is modified as follows:
S. Description Amount Amount Award
No awarded by awarded by confirmed or
. Tribunal this Court modified or
enhanced or
granted
1. Loss of partial Rs.18,00,000 Rs.18,00,000 confirmed
permanent
disability
2. Medical Bills Rs.2,23,544 Rs.2,23,544 confirmed
3. Loss of pain Rs.80,000 Rs.80,000 confirmed
and sufferings
4. Loss of earning Rs.30,000 Set aside
capacity
5. For Nutrition Rs.20,000 Rs.20,000 confirmed
6. For Rs.42,568 Rs.42,568 confirmed
Transportation
7. For attendant Rs.20,000 Rs.20,000 Confirmed
charges
8. For future Rs.20,000 Rs.20,000 Confirmed
medical
expenses
Total Rs.22,36,112 Rs.22,06,112 reduced by
Rs.30,000
12.The Civil Miscellaneous Appeal is partly allowed reducing
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C.M.A(MD)No.327 of 2020
the compensation from Rs.22,36,112/-to Rs.22,06,112/- with
interest at the rate of 7.5% p.a.from the date of claim petition till
the date of realization. The learned counsel appearing for the
appellant insurance company would submit that the appellant has
already deposited the entire award amount. The claimant is entitled
to withdraw the reduced award amount along with proportionate
accrued interest and cost, less the amount already withdrawn, if
any, by filing necessary application before the tribunal. The Tribunal
is directed to refund the excess amount to the appellant / Insurance
company along with proportionate interest. No costs. Consequently,
connected miscellaneous petition is closed.
Index:Yes/No [T.K.R.,J.] [P.B.B.,J.]
Internet:Yes/No 19.10.2023
NCC:Yes/No
am
To
The Motor Accident Claims Tribunal (Sub-Court),
Thuraiyur.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.327 of 2020
RMT.TEEKAA RAMAN,J.
AND
P.B.BALAJI,J.
am
JUDGMENT MADE IN
C.M.A(MD)No.327 of 2020
19.10.2023
https://www.mhc.tn.gov.in/judis
