Madras High Court

National Insurance Co. vs R.Dhatchina Murthy on 15 September, 2023

                                                                            CMA No.1585 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 15.09.2023

                                                        CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                               C.M.A.No.1585 of 2023
                                             and C.M.P. No.15918 of 2023

                  National Insurance Co., Ltd.,                   ..                    Appellant
                  Third Party Motor Cell
                  No.756, Anna Salai, Chennai – 600 002.
                                                Vs.

                  1. R.Dhatchina Murthy

                  2. S.Ramesh                                  ..                Respondents


                  PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of

                  Motor Vehicles Act, to set aside the judgment and decree dated 28.10.2022

                  and made in M.C.O.P No.3945 of 2013 on the file of the Motor Accidents

                  Claims Tribunal, Chennai (In the II Court of Small Causes, Chennai)

                                        For Appellant      : Mr.S.Vadivel

                                        For Respondent1    : Mr.Navaneetha Krishnan




                  1/10


https://www.mhc.tn.gov.in/judis
                                                                                  CMA No.1585 of 2023




                                                       JUDGMENT

The Insurance company has preferred the instant appeal aggrieved by

the quantum of compensation awarded by the Tribunal.

2. The appellant/Insurance Company is the second respondent in

MCOP.No.3945 of 2013, on the file of the Motor Accidents Claims Tribunal /

II Court of Small Causes, Chennai.

3. The 1st respondent, who is the claimant, filed the petition claiming a

sum of Rs.1,00,00,000/- as compensation stating that on 08.07.2013, at about

9.00pm, when he was riding his two wheeler and was crossing a road, the

driver of the offending vehicle came in a rash and negligent manner and

dashed against the 1st respondent vehicle as a result of which, the 1st

respondent sustained grievous head injuries and fractures.

4. The 2nd respondent remained ex-parte before the tribunal.

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5. The appellant/Insurance company filed a counter statement denying

the averments made in the claim petition and stated that the 1st

respondent/claimant was under the influence of alcohol as evidenced by the

accident register and that therefore, the accident took place only due to the

negligence of the 1st respondent/claimant; and that in any case the claim for

compensation is excessive and prayed for dismissal of the claim petition.

6. Before the Tribunal, the 1st respondent examined P.W.1 to P.W.3 and

marked Ex.P.1 to Ex.P.38. The appellant examined RW1 and marked Ex.R1 to

Ex.R3

7. The Tribunal, after taking into consideration the oral and

documentary evidence, awarded a compensation of Rs.21,60,965/- The

Tribunal had also fixed 20% contributory negligence on the 1st

respondent/claimant for riding the two wheeler under the influence of alcohol.

Thus, the appellant/ Insurance company was directed to pay a sum of

Rs.17,28,772/- to the 1st respondent/claimant.

https://www.mhc.tn.gov.in/judis CMA No.1585 of 2023

8. The learned counsel for the appellant/ Insurance company submitted

that the award of the Tribunal is excessive. The disability certificate issued by

the Medical Board marked as Ex.C-1 does not suggest that the 1 st respondent

/claimant suffered functional disability. The 1st respondent had admitted in his

cross-examination that he had not suffered any loss of income on account of

the injuries suffered during the accident. Therefore, the Tribunal erred in

adopting multiplier method for awarding compensation. The learned counsel

also submitted that the award under the other heads are also excessive.

9. The learned counsel for the 1st respondent submitted that the 1st

respondent/claimant had suffered serious head injuries. Considering the nature

of injuries and the avocation, the 1st respondent/claimant had suffered

functional disability and the Tribunal was right in adopting multiplier method

for awarding compensation. Therefore, learned counsel submitted that the

appeal may be dismissed.

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10. The only question in the instant appeal is whether the award of

compensation is just and reasonable ?

11. On perusal of the records, it is seen that the deceased had sustained

the following injuries:-

1. Multiple Head injuries.

2. Fracture in the occipital Region

3. Fracture in the right fore arm

4. Multiple abrasion all over the body

12.The Medical Board assessed the disability of the 1st

respondent/claimant as 29.5%. The Tribunal had accepted the certificate of the

Medical Board and fixed the functional disability at 29.5%. However, the

evidence discloses that the 1st respondent, who was working as a technician

had rejoined the company, which had employed him originally. Therefore, this

Court is of the view that the functional disability cannot be to the extent of

29.5%. However, considering the nature of head injuries and avocation, even

though the appellant was subsequently, this Court is of the view that the

https://www.mhc.tn.gov.in/judis CMA No.1585 of 2023

functional disability cannot be ruled out and in the facts it can be assessed at

10%. The findings of the Tribunal with regard to the fixation of income is not

under challenge. The 1st respondent/claimant, who was aged 36 years, at the

time of the accident is entitled to 50 % towards future prospects in the facts

and circumstances of this case and the multiplier applicable is '15'. Thus, by

appying multiplier 15, adding 50% towards future prospects, the

compensation under the head disability has to be as follows:-

Rs.18,674 + 9,337(18,674 X 50%) X 12 X 15 X 10/100=Rs.5,04,198/

13. The compensation awarded under the other heads are just and

reasonable and hence the same are confirmed It is also seen that the Tribunal

was right in fixing 20% contributory negligence since the 1st respondent was

under the influence of alcohol. There is no challenge to said findings. Hence,

the same is confirmed. Thus, the compensation awarded by the Tribunal is

reduced from Rs.17,28,772/- to Rs.9,22,055.2/- break-up as follows:-








https://www.mhc.tn.gov.in/judis
                                                                                  CMA No.1585 of 2023




                         Sl. Description                    Amount        Amount        Award
                         No                                awarded by   awarded by confirmed or
                                                            Tribunal  this Court (Rs) enhanced or
                                                              (Rs)                      granted
                         1.       Disability               15,12,594/-    5,04,198/-      Reduced
                         2.       Pain and Sufferings        50,000/-       50,000/-     Confirmed
                         3.       Loss of earning during     56,022/-       56,022/-     Confirmed
                                  treatment
                         4.       Medical expenses          4,12,349/-    4,12,349/-     Confirmed
                         5.       Loss of amenities          50,000/-       50,000/-     Confirmed
                         6.       Attender charges           20,000/-       20,000/-     Confirmed
                         7.       Transportation charges      30,000/-      30,000/-     Confirmed
                         8.       Extra Nourishment           30,000/-      30,000/-     Confirmed
                                               Total       21,60,965/-   11,52,569/-     Reduced
                                                                                            by
                                                                                       Rs.10,08,396/-
                                  Less:20%                  4,32,193/-    2,30,514/-
                                  contributory
                                  negligence committed
                                  by the 1st respondent.
                                  Net compensation         17,28,772/-    9,22,055/- Reduced by
                                                                                       Rs.8,06,717/-







https://www.mhc.tn.gov.in/judis
                                                                              CMA No.1585 of 2023

14. With the above modifications, this Civil Miscellaneous Appeal is

partly allowed and the compensation awarded by the Tribunal at

Rs.17,28,772/- is hereby reduced to Rs.9,22,055/- together with interest at

7.5% per annum (excluding the default period, if any) from the date of petition

till the date of deposit. The appellant/Insurance company is directed to deposit

the compensation amount now determined by this Court, along with interest

and costs, less the amount already deposited, if any, within a period of six

weeks from the date of receipt of a copy of this judgment. On such deposit, the

1st respondent/claimant shall be permitted to withdraw the compensation

amount along with interest and costs, less the amount if any, already

withdrawn. The appellant/Insurance company is permitted to withdraw the

excess amount, if the entire award amount has been deposited earlier. No costs.