Madras High Court

Reliance General Ins.Co.Ltd vs M.G.Shaju on 12 February, 2025

                                                                          CMA No.2655 of 2021 and
                                                                           Cross obj.No.101 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Dated 12.02.2025

                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                            CMA No.2655 of 2021 and
                                           Cross Obj.No.101 of 2021 and
                                              CMP No.15176 of 2021

                       CMA No.2655 of 2021

                       Reliance General Ins.Co.Ltd.,
                       No.141/71, first floor, Gee Jay Arcade,
                       Thiruvenkataswamy Road West,
                       R.S.Puram, Coimbatore 641 002.                             ... Appellant

                                                         Vs.

                       1. M.G.Shaju
                       2. A.Chikkanthar Basha
                       3. M.Jeyachandran
                       4. N.Kartik Kamal
                       5. The New India Assurance Co. Ltd.,
                          City Divisional Office, door No.435,
                          D.B.Road, R.S.Puram, Coimbatore 641 002.             ... Respondent

                       Cross obj. No.101 of 2021

                       M.G.Shaju                                           ... Cross objector

                                                         Vs.



                       Page 1 of 15
https://www.mhc.tn.gov.in/judis
                                                                             CMA No.2655 of 2021 and
                                                                              Cross obj.No.101 of 2021

                       1.Reliance General Ins. Co. Ltd.,
                         No.141/71, first floor, Gee Jay Arcade,
                         Thiruvenkataswamy Road West,
                         R.S.Puram, Coimbatore 641 002.

                       2. A.Chikkanthar Basha
                       3. M.Jeyachandran
                       4. N.Kartik Kamal

                       5. The New India Assurance Co. Ltd.,
                          City Divisional Office, door No.435,
                          D.B.Road, R.S.Puram, Coimbatore 641 002              ... Respondents

                       Prayer in CMA No.2655 of 2021: Civil Miscellaneous Appeal filed
                       under Section 173 of Motor Vehicles Act 1988 to set aside the decree
                       and judgment dated 19.06.2018 passed in MCOP No.170 of 2013 by
                       the Chief Judicial Magistrate, Motor Accident Claims Tribunal,
                       Coimbatore.


                       Prayer in Cross Obj.No.101 of 2021: Cross objection filed under
                       Order XLI Rule 22 of CPC against the decree and judgment dated
                       19.06.2018 passed in MCOP No.170 of 2013 by the Chief Judicial
                       Magistrate, Motor Accident Claims Tribunal, Coimbatore.


                                                  In CMA No.2655 of 2021
                                  For appellant     : Mr.C.Bhuvanasundari
                                  For Respondents : Mr.V.Nicholas for first respondent
                                                     Mr.S.Dhakshnamoorthy for R5

                       Page 2 of 15
https://www.mhc.tn.gov.in/judis
                                                                              CMA No.2655 of 2021 and
                                                                               Cross obj.No.101 of 2021

                                                In Cross obj.No.101 of 2021
                                  For Cross objector : Mr.V.Nicholas
                                  For Respondents : Mr.C.Bhuvanasundari for first respondent
                                                     Mr.S.Dhakshnamoorthy for R5


                                                 COMMON JUDGMENT

Aggrieved by the Award passed by the Motor Accident Claims

Tribunal, the insurance company has filed CMA No.2655 of 2021.

2. Not satisfied with the quantum of compensation awarded by

the Tribunal, the claimant has filed the Cross Obj.No.101 of 2021.

3. Both the civil miscellaneous appeal and the cross objection

have been filed as against the compensation awarded by the Tribunal

in MCOP No.170 of 2013, dated 19.06.2018.

4. According to the first respondent/ claimant, on 05.01.2011,

when he was travelling as a pillion rider in his Hero Honda Motor

cycle bearing registration No.TN 37 AH 1936, driven by his friend

https://www.mhc.tn.gov.in/judis CMA No.2655 of 2021 and

N.Karthik Kamal, the fourth respondent herein, a Bajaj Pulsar motor

cycle bearing registration No. TN 37 AE 4394, driven by the first

respondent came in the opposite direction in a rash and negligent

manner and hit the motorcycle of the claimant. As a result of which,

the claimant suffered head injury. The claimant filed a claim petition

seeking compensation of Rs.25,00,000/- before the Tribunal.

5. The driver and owner of the offending vehicle remained

exparte. The appellant herein/ insurance company, insurer of the

offending vehicle filed counter and contested the claim petition, by

denying the manner of accident as narrated in the claim petition. The

appellant also denied the income, age and earning capacity of the

claimant.

6. Before Tribunal, the claimant was examined as PW1 and his

employer was examined as PW2. The Doctor, who issued disability

certificate to the claimant was examined as PW3 and the owner of the

offending vehicle was examined as RW1. On behalf of the claimant,

https://www.mhc.tn.gov.in/judis CMA No.2655 of 2021 and

18 documents were marked as Ex.P1 to E.P18 and on behalf of the

insurance company, no document was marked.

7. The Tribunal, based on the available records, came to the

conclusion that the accident had occurred due to the rash and negligent

driving of the Bajaj pulsar motorcycle belonging to the second

respondent herein and hence, the appellant herein/ insurer of the

vehicle is liable to pay compensation. The Tribunal fixed quantum of

compensation and also fixed 15% contributory negligence on the part

of the claimant, as he failed to wear helmet at the time of accident.

Accordingly, after deducting 15% towards contributory negligence,

the insurance company was directed to pay a sum of Rs.8,02,438/- as

compensation to the claimant. Aggrieved by the said award, the

insurance company preferred the appeal, whereas, the claimant has

preferred the cross objection seeking enhancement of compensation.

8. The learned counsel for the appellant/ insurance company

would submit that the claimant failed to lead any independent evidence

https://www.mhc.tn.gov.in/judis CMA No.2655 of 2021 and

to prove the negligence on the part of the driver of the vehicle, insured

with the appellant and hence the Tribunal committed error in fixing

85% contributory negligence on the part of the driver of the vehicle,

insured with the appellant.

9. The learned counsel for the claimant/cross objector by taking

this court to the evidence of PW1, Ex.P1 FIR would submit that the

Tribunal has rightly fixed the contributory negligence on the part of the

driver of the vehicle, insured with the appellant. He would further

submit that the Tribunal ought not have fixed 15% contributory

negligence on the part of the claimant/cross objector. On the question

of quantum, learned counsel further submits that as per the direction

issued by the Tribunal, the claimant appeared before it and it was

recorded by the Tribunal that the claimant could not lead his normal

life without help of an attender. Therefore, the Tribunal committed

error by not applying the multiplier method, while calculating the

compensation.

https://www.mhc.tn.gov.in/judis CMA No.2655 of 2021 and

10. In order to prove the averments made in the claim petition

that the negligence is on the part of the driver of the vehicle insured

with the appellant, the claimant was examined as PW1 and deposed in

line with the averments contained in the claim petition. The evidence

of PW1 is very well corroborated with the averments contained in the

FIR, marked as Ex.P1. In the absence of any contra evidence on the

part of the appellant/insurance company, the Tribunal has rightly came

to the conclusion that the accident occurred due to the rash and

negligent driving of the driver of the vehicle insured with the

appellant/ insurance company. Therefore, the said finding of the

Tribunal need not be interfered with.

11. Admittedly, at the time of accident, the claimant did not wear

a helmet and he received head injury. Therefore, the Tribunal was

justified in fixing contributory negligence at 15% on the part of the

claimant/ cross objector and this court does not see anything to

interfere with the fixation of contributory negligence on the part of the

claimant at 15%.

https://www.mhc.tn.gov.in/judis CMA No.2655 of 2021 and

12. In order to prove the nature of disability suffered by the

claimant, Dr.Keshavamurthy, working in KMCH Hospital, Coimbatore

wherein the claimant had taken treatment, was examined as PW3. He

clearly deposed that the right leg and hand of the claimant got affected

and he could not lead his normal life without the help of an attender.

The Ex.P9 is the disability certificate issued by PW3. A perusal of

Ex.P9 would suggest that the claimant has got mild slurring in speech

and he could not move his right upper and lower limbs. It is seen from

the order passed by the Tribunal that the claimant appeared before the

Tribunal as per its direction and his locomotor movement was very

slow at the relevant point of time. The Tribunal clearly recorded that

the claimant was guided by his wife during his appearance before the

court and the Tribunal recorded its opinion that the claimant could not

lead his normal life without any support of an attender. Taking into

consideration the evidence of PW1, disability certificate Ex.P9 and the

recording made by the Tribunal with regard to the extent of disability

suffered by the claimant, this court feels that the Tribunal should have

adopted multiplier method while calculating the compensation under

https://www.mhc.tn.gov.in/judis CMA No.2655 of 2021 and

the head disability.

13.Though the disability percentage was mentioned as 61% in

Ex.P9 issued by the PW3, this court is not convinced to accept the

disability of 61%, having regard to the disability and the difficulties

noted in the disability certificate, namely, 1. mild slurring in speech,

2. weakness of right upper and lower limbs. The claimant failed to

get disability certificate from the Medical Board and only the Doctor,

who treated the claimant was examined as PW3. Further, in his cross

examination, the PW3 admitted that in the discharge summary issued to

the claimant, it was not mentioned that he could move around only

with the help of an attender in future. However, the claimant appeared

before the Tribunal and it was noted by the Tribunal that the claimant

could not move around without the help of an attender for the rest of

his life. Taking into consideration all the above aspects, this court feels

that it would be appropriate to fix disability at 50%.

https://www.mhc.tn.gov.in/judis CMA No.2655 of 2021 and

14. The employer of the claimant was examined as PW2 and

through him, salary certificate was marked as Ex.P13. As per the

salary certificate, the claimant received a sum of Rs.6,500/- per month.

Therefore, this court has no hesitation to fix the income of the

claimant at Rs.6,500/- per month. At the time of accident, the claimant

was aged about 33 years. Therefore, as per the law laid down by the

Honourable Supreme Court in National Insurance Company

Limited Vs. Pranay Sethi and others reported in AIR 2017 SC 5157(

Special Leave Petition (Civil) No.25590 of 2014 dated 31.10.2017),

the claimant is entitled to the enhancement of 40% of income towards

Future Prospects. Accordingly, the income of the claimant is fixed at

Rs.9,100/- (6500 + 2600) and by adopting proper multiplier '16', the

compensation for permanent disability suffered by the claimant/cross

objector is fixed at Rs.8,73,600/-. (9,100 x 12x16 x 50/100=8,73,600).

Therefore, an amount of Rs.1,83,000/- fixed by the Tribunal towards

permanent partial disability on percentage basis is enhanced to

Rs.8,73,600/-. Since compensation is awarded towards disability by

https://www.mhc.tn.gov.in/judis CMA No.2655 of 2021 and

adopting multiplier method, a separate sum of Rs.1,00,000/- awarded

towards dependency and a sum of Rs.39,000/- towards loss of earning

power by the Tribunal are set aside. However, the claimant is entitled

to Rs.20,000/- towards loss of amenities in life, as he cannot lead

normal life as before. The amount awarded under the head damage to

clothing is also set aside.

15. As far as the other compensation awarded under various

other conventional heads are concerned, the same are confirmed. As

already discussed, 15% contributory negligence is fixed on the

claimant. Therefore, from the total compensation awarded, 15% has to

be deducted towards contributory negligence on the part of the

claimant.

https://www.mhc.tn.gov.in/judis CMA No.2655 of 2021 and

16. Accordingly, the revised compensation awarded by this Court

is tabulated as under:

                              Sl. Description                Amount      Amount       Award
                              No                            awarded by awarded by confirmed
                                                             Tribunal   this Court or enhanced
                                                               (Rs)        (Rs)     or granted
                              1. Pain and suffering           50,000         50,000          confirmed
                              2. Extra nourishment            15,000         15,000          confirmed
                              3. Transportation               2,000           2,000          confirmed
                                 charges
                              4. Medical expenses as         5,53,545       5,53,545         confirmed
                                 per bills
                              5. Permanent disability        1,83,000       8,73,600          enhanced
                              6. loss of earning              39,000            --            set aside
                                 capacity
                              7. damage to clothing           1,500             --            set aside
                              8     Towards dependency       1,00,000           --            set aside
                              9     Loss of amenities            -           20,000            granted
                                     Total                   9,44,045       15,14,145         enhanced
                                    Less 15% contributory   1,41,606.75    2,27,121.75         ordered
                                    negligence

                                                             8,02,439      12,87,023.25       enhanced
                                                                          rounded off to
                                                                            12,87,025





https://www.mhc.tn.gov.in/judis
                                                                             CMA No.2655 of 2021 and





                                  In the result:

17. The Cross objection No.101 of 2021 is partly allowed and

the compensation awarded by the Tribunal at Rs.8,02,439/- is hereby

enhanced to Rs.12,87,025/- together with interest at 7.5% per annum

(excluding the default period, if any) from the date of claim petition till

the date of deposit.

18. 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 cross objector/claimant shall be permitted to

withdraw the compensation amount along with interest and costs, less

the amount if any, already withdrawn by making formal application