Madras High Court

Icici Lambard General Insurance Co vs K.Senthil Kumar on 3 January, 2024

                                                                              C.M.A.(MD)No.138 of 2012

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                      Dated: 03.01.2024
                                                          CORAM:
                                          THE HON'BLE MR.JUSTICE P. DHANABAL
                                                 C.M.A.(MD)No.138 of 2012
                                                           and
                                                  C.M.P(MD) No.1 of 2012

                    ICICI Lambard General Insurance Co.,Ltd.,
                    Rep. by its Branch Manager,
                    1st Floor, Sakthi Road,
                    Erode                                                              ... Appellant/
                                                                                      2 Respondent
                                                                                       nd



                                                        Vs.

                    1. K.Senthil Kumar                                               ... Respondent/
                                                                                           Petitioner

                    2.V.P.Shanmuga Sundaram                                           ... Respondent/
                                                                                          Respondent


                    Prayer : This Civil Miscellaneous Appeal filed under Section 173 of the Motor
                    Vehicles Act, to set aside the fair and decreetal order dated 22.11.2010 made
                    in M.C.O.P.No.53 of 2010 on the file of the Motor Accident Claims
                    Tribunal( Chief Judicial Magistrate, Karur) and allow this Civil Miscellaneous
                    Appeal.


                                      For Appellant     : Mr.S.Srinivasa Raghavan
                                      For R1            : Mr.D.Nallathambi

                                      For R2            : No appearance




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                                                                               C.M.A.(MD)No.138 of 2012


                                                          JUDGMENT

This Civil Miscellaneous Appeal has been filed as against the order

passed in M.C.O.P.No.53 of 2010 on the file of the Motor Accident Claims

Tribunal( Chief Judicial Magistrate, Karur), wherein the first respondent herein

filed a petition for granting compensation as against the second respondent

and the petitioner herein.

2. The Tribunal has awarded a sum of Rs.12,17,500/- towards

compensation @7.5% interest . As against the award passed by the Tribunal,

the present appeal has been preferred by the second respondent/Insurance

company.

3. For the sake of convenience and brevity, the parties herein after will

be referred to as per their status/ranking in the Tribunal.

4. The brief facts of the petition averments are:

The petitioner was working as contract labour and was earning a sum

of Rs.8000/- per month. On 15.02.2008 the petitioner along with his owner

and co-worker while returning near Karur- Erode main road in a two wheeler

bearing Reg. No. TN 47 H 7468 at about 10.45 pm., near Veluchamypuram

Bazar at that time one Tata Indica car bearing Reg.No. TN 33 AF 0301 came in

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the opposite direction driven by the driver in a rash and negligent manner and

dashed against the to wheeler of the petitioner. Due to that accident the

petitioner sustained injuries all over the body and got fracture. The petitioner

incured expenses to the tune of Rs.70,000 /- towards medical expenses and he

suffered permanent disability, thereby claimed a sum of Rs.15lakhs towards

compensation. Hence she filed this petition for awarding compensation.

5. The brief facts and counter filed by the second respondent:

The driver of the first respondent has no valid driving licence and

badge at the time of alleged accident. The age of the petitioner and income of

the petitioner are all denied. The accident occurred only due to the negligence

on the part of the petitioner and the petitioner is not entitled to get

compensation of Rs.15,00,000/- as claimed n the petition and hence the

petition is liable to be dismissed.

6. In order to prove the case of the petitioner , the petitioner has

examined P.W.1 and P.W.2 and marked exhibits Exs.P.1 to Ex.P.19 and on the

side of the respondent R.W.1 and R.W.2 were examined and Exs.R.1 to Ex.R.7

were marked.

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7. After evaluating the oral and documentary evidence adduced on

either side, the Tribunal has awarded a sum of Rs.12,17,500/- towards

compensation with interest of 7.5 % per annum with a cost of Rs.30,895/-.

8. As against the award passed by the Tribunal the second

respondent/Insurance company has preferred this present appeal on various

grounds.

9. The learned counsel appearing for appellant/second respondent

would contend that the Tribunal has not followed the procedure and

erroneously applied multiplier theory and there is no functional disability. As

per the medical records the petitioner sustained injuries and fracture injuries

and thereby the petitioner is entitled to Rs.3000/- per 1 % disability and not

entitled to the amount of Rs.12,17,500/- There is no amputation on leg to the

petitioner. The partial permanent disability of 70% was not calculated

according to law. Therefore the order passed by the Tribunal are liable to be set

aside by allowing this appeal.

10. The learned counsel appearing for the first respondent/petitioner

would contend that the petitioner sustained only fracture injuries on his leg

and below the knee was completely damaged and also sustained multiple

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fracture injuries all over the body and also severe injury in the head. The

petitioner is unable to do his regular day to day work and thereby his disability

is functional disability. The Tribunal after taking into consideration all the facts

and circumstances correctly awarded multiplier and awarded reasonable

compensation. Therefore, the appeal is liable to be dismissed.

11. This Court after hearing both sides and upon perusing the

documents including the order of the Tribunal the point for determination in

this appeal is:

i)whether the appeal is liable to be allowed or not?

12. In this case there is no dispute with regard to the negligence

on the part of the driver of the first respondent and the petition has been filed

only on the ground of quantum of amount. According to the appellant there is

no functional disability. Inspite of that the Tribunal has adopted multiplier

method and awarded a sum of Rs. 12,17,500/- towards compensation.

According to the respondent/claimant he sustained fracture injuries and his left

leg below the knee was crushed and fixed artificial leg. Inorder to prove the

disability, the petitioner has examined P.W.2/Doctor who treated him and he

categorically deposed about the injuries sustained by the petitioner and also

issued Disability Certificate/Ex.P.9.

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13. On perusal of Ex.P.9 it is revealed that the petitioner sustained

injuries and his disability is 70 %. The Tribunal in the order categorically

discussed about the disability and fairly came to conclusion that the petitioner

sustained injuries on his left leg and without any support he is unable to walk

and also fixed artificial leg in the knee, due to that surgery the petitioner is

unable to do routine work and thereby adopted multiplied method and by

following Rs.3000/- as notional income awarded compensation. The above said

Rs.3000/- of notional income is reasonable. Tribunal has awarded the

compensation as follows:

1. Loss of Income Rs.6,48,000/-

2. Transport Expenses Rs.5,000/-

3. Extra Nourishment Rs.2,500/-

4. Future Medical Expenses Rs.1,00,000/-

5. Pain and sufferings Rs.50,000/-

6. Medical Expenses Rs.3,12,000/-

7. Attendar Rs.1,00,000/-

Total Rs.12,17,500/-

14. The learned counsel appearing for the appellant relied on the

judgment of the Hon'ble Apex Court in the case of Rajkumar .vs. Ajay

Kumar and another reported in (2011) 1Supreme Court Cases 343. On

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careful perusal of the above said judgement it will not be applicable to the

present facts of the case. In this case the petitioner sustained functional

disability. Therefore the said case law is no way applicable to the present facts

of the case.

15. Considering the nature of injuries sustained by the petitioner

and also considering the disability the award passed by the Tribunal is a

reasonable one and there is no infirmity or perverse in the order passed by the

Tribunal. Therefore this Court find no warrant to interfere with the order passed

by the Tribunal

16. In view of the above discussions this Court finds no merits in the

appeal and it deserves to be dismissed. Accordingly this Civil Miscellaneous

Appeal is dismissed and the impugned award dated 22.11.2010 passed in

M.C.O.P.No.53 of 2010 on the file of the Motor Accident Claims Tribunal( Chief

Judicial Magistrate, Karur), is confirmed. As per the order of this Court 50% of

the amount was already deposited by the second respondent/Insurance

Company. The appellant/insurance company is directed to deposit the entire

award amount after deducting the amount already deposited with interest and

costs, within period of two months from the date of receipt of this judgment.

On such deposit being made, the first respondent/claimant is permitted to

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withdraw the amount together with interest and costs by filing application

before the Tribunal. Consequently connected miscellaneous petition is closed.

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