Madras High Court
The Manager vs Madhu on 11 September, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
CMA.No.1165 of 2022
and C.M.P.No.8439 of 2022
The Manager,
M/s.Iffco Tokio General Insurance Company Limited,
GSN Arcade, 2nd Floor,
Near Vemala Kaluanamandapam,
Bye pass Road, Hosur,
Krishnagiri District. ... Appellant
Vs.
1.Madhu
2.P.Madesh ... Respondents
Prayer: The Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
05.02.2019 and made in MCOP.No.413 of 2017 on the file of the
Motor Accident Claims Tribunal, Special Subordinate Court,
Krishnagiri.
For Appellant : Ms.C.Harini
for M/s.M.B.Gopalan Associates
1/10
https://www.mhc.tn.gov.in/judis
For Respondents : Mr.S.Murugan for R1
Notice dispensed with for R2
JUDGMENT
The Insurance Company has filed this instant appeal challenging
the quantum of compensation.
2. The first respondent/claimant filed the claim petition
stating that on 07.08.2016, at about 22.00 hours, while he was
proceeding in his cycle rickshaw, a Honda Scooter bearing Registration
No.TN-24-AE-7616 belonging to the second respondent herein, ridden
by its rider in a rash and negligent manner dashed against the first
respondent's rickshaw, as a result of which the first respondent
sustained grevious injuries.
3. The second respondent, owner of the offending vehicle
remained ex-parte before the Tribunal.
4. The appellant/Insurance Company resisted the claim
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petition stating that the accident took place only due to the rash and
negligent riding of the cycle-rickshaw by the first respondent herein
and hence, the appellant/Insurance Company is not liable to pay the
compensation.
5. The first respondent examined himself as P.W.1 and
marked six documents as Exs.P1 to P6. On the side of the appellant/
Insurance Company neither oral nor documentary evidence was
adduced.. The Disability Certificate issued by the Medical Board is
marked as Ex.C-1.
6. The Tribunal after considering the oral and documentary
evidence, awarded compensation of sum of Rs.6,90,000/- to the first
respondent.
7. The learned counsel for the appellant/Insurance Company
submitted that though the Medical Board has assessed the disability at
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20% partial permanent, the Tribunal had assessed the functional
disability at 40% erroneously. Further, during the examination of the
first respondent before the Tribunal, the learned Judge had observed
that there is no visible signs of any fracture in the right hand or in the
neck of the first respondent. The learned counsel therefore submitted
that the tribunal erred in fixing 40% functional disability and had also
taken into consideration the future prospects and hence, prayed for
reduction of compensation amount.
8. Per contra, the learned counsel for the first respondent
submitted that the compensation awarded by the Tribunal is just and
reasonable and therefore, does not call for any interference. Hence, the
learned counsel prayed for dismissal of the appeal.
9. Learned counsel for the appellant/Insurance Company
submitted that the second respondent remained ex-parte before the
Tribunal and therefore, requested this Court to dispense with the notice
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to the second respondent and had also made an endorsement to that
effect in the Court bundle. Hence, notice to the second respondent is
dispensed with.
10. Heard the learned counsel appearing for the
appellant/Insurance Company as well as the learned counsel appearing
for the first respondent and perused all the materials available on record
before this Court.
11. On perusal of records, it is seen that the Medical Board
had assessed the disability of the first respondent at 20% partial
permanent. The first respondent had suffered a fracture in the right
shoulder. It is also seen that the Tribunal during the examination of the
first respondent had observed that, on appearance of the first
respondent, he did not suffer any inconvenience either in the right hand
or in the neck.
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12. Considering the above facts, this Court is of the view that
the finding of the Tribunal fixing the functional disability at 40% may
not be appropriate. However, since, the avocation of the first
respondent involves physical labour, this Court is of the view that it
would be just and reasonable to fix the functional disability at 20%. In
the facts and circumstances of the case, the first respondent would not
be entitled to addition towards the future prospects. However, this
Court is of the view that the notional income can be fixed as Rs.7,500/-
per month. Thus, the compensation under the head “Loss of earning
power” has to Rs.7,500/- x 12 x 16 x 20/100 = Rs.2,88,000/-. The
award of the Tribunal under the other heads are just and reasonable and
is confirmed.
13. Thus the award of compensation awarded by the Tribunal
is modified as follows:-
S.No Description Amount Amount Award
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awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted or
reduced
1. Loss of 6,24,000 2,88,000 Reduced
earning power
2. Transport, 15,000 15,000 Confirmed
nutrition and
attender
charges
3. Pain and 25,000 25,000 Confirmed
sufferings
4. Loss of 25,000 25,000 Confirmed
amenities and
enjoyment of
life
5. Damages to 1,000 1,000 Confirmed
clothing and
articles
Total Rs.6,90,000/- Rs.3,54,000 Reduced by
Rs.3,36,000/-
14. With the above modification, the Civil Miscellaneous
Appeal is partly allowed. The compensation of Rs.6,90,000/- awarded
by the Tribunal is hereby reduced to Rs.3,54,000/- together with
interest at the rate of 7.5% per annum from the date of petition till the
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date of deposit (excluding the default period, if any). 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 four weeks
from the date of receipt of a copy of this judgment. On such deposit, the
first respondent is permitted to withdraw the modified award amount
now determined by this Court, along with interest and costs, after
adjusting the amount if any, already withdrawn. The
appellant/Insurance Company is permitted to withdraw the excess
amount lying in the deposit to the credit of M.C.O.P.No.413 of 2017 on
the file of Motor Accident Claims Tribunal, Special Subordinate Court,
Krishnagiri, if the entire award amount has already been deposited by
them. Consequently, connected Miscellaneous Petition is closed. No
costs.
11.09.2023
Index: Yes/No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis
Speaking order: Yes/ No
gba
To
1. The Special Subordinate Court,
Motor Accident Claims Tribunal,
Krishnagiri.
2.The Section Officer, VR Section
High Court of Madras,
Chennai – 600 104.
SUNDER MOHAN,J.
gba
C.M.A.No.1165 of 2022
and C.M.P. No.8439 of 2022
https://www.mhc.tn.gov.in/judis
11.09.2023
https://www.mhc.tn.gov.in/judis
