Madras High Court
The Branch Manager vs Karthikeyan : 1St on 8 September, 2020
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan, P.Rajamanickam
C.M.A.(MD).No.25 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE ON WHICH RESERVED : 08.09.2020
DATE ON WHICH PRONOUNCED : 09.11.2020
CORAM:
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
and
THE HONOURABLE MR.JUSTICE P.RAJAMANICKAM
C.M.A.(MD).No.25 of 2019
in
CMP(MD)No.358 of 2019
The Branch Manager,
The Oriental Insurance Company Limited,
No.11, 12-30, D.S.P. Complex,
Karur Main Road,
Velayuthampalayam,
Karur – 639 117. : Appellant /3rd Respondent
Vs.
1.Karthikeyan : 1st Respondent/Petitioner
2.K.Ravichandran : 2nd Respondent/1st Respondent
3.Natesan : 3rd Respondent/2nd Respondent
(2nd & 3rd Respondents remained ex-parte
before the Tribunal)
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C.M.A.(MD).No.25 of 2019
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Order/Award passed in M.C.O.P.No.5 of 2015,
dated 02.01.2018, on the file of the Motor Accident Claims Tribunal (Sub-
Judge), Srivilliputtur.
For Appellant : Mr.K.Baskaran
For R1 : Mr.M.Ashok Kumar
For R2 & R3 : No Appearance
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JUDGMENT
(Judgment of the Court was delivered by P.RAJAMANICKAM, J.) This Civil Miscellaneous appeal has been filed by the 3rd respondent/Insurance Company against the order/award passed by the Motor Accident Claims Tribunal (Sub-Judge), Srivilliputtur, in M.C.O.P.No.5 of 2015 dated 02.01.2018.
2. The first respondent herein has filed a claim petition in M.C.O.P.No.5 of 2015 on the file of the Motor Accident Claims Tribunal (Sub- Judge), Sirvilliputtur, under Sections 166 and 140 of the Motor Vehicles Act, http://www.judis.nic.in 2/14 C.M.A.(MD).No.25 of 2019 1988, claiming a sum of Rs.40,00,000/- as compensation for the injuries sustained by him in a Motor accident. The learned Tribunal by the order/award dated 02.01.2018, has partly allowed the said claim petition and directed the 3rd respondent/Insurance Company to pay a sum of Rs.35,02,243/- with interest at the rate of 7.5% from the date of filing of the petition. Feeling aggrieved, the 3rd respondent/Insurance Company has filed the present Civil Miscellaneous Appeal.
3. For the sake of convenience, the parties are referred to as described before the Tribunal.
4. The averments made in the claim petition are in brief as follows:-
(i) The petitioner was working as Office Assistant in Kalasalingam University, Srivilliputtur and he was earning monthly salary of Rs.11,667/-. On 13.08.2014, at about 11.15 a.m, when the petitioner was riding his by-cycle on Rajapalayam–Tenkasi road, near Nanayam Super Market in Srivilliputtur Town, the driver of a lorry bearing Registration No.27-F-1845, belonging to the 2nd respondent namely the first respondent drove the said lorry on the same direction behind the petitioner in a rash and negligent manner and dashed against the petitioner's by-cycle, consequently, the petitioner fell down and http://www.judis.nic.in 3/14 C.M.A.(MD).No.25 of 2019 sustained grievous injuries on the hip, right eyebrow and nose. Immediately, the petitioner was taken to the Government Hospital, Rajapalayam and after taking initial treatment, he was shifted to Apollo Speciality Hospital, Madurai. The petitioner took treatment from 13.08.2014 to 02.09.2014 as inpatient and thereafter, he was discharged, but till today he is taking treatment as outpatient.
The petitioner has undergone surgery for three times. The petitioner is not able to walk and he is lying in bed.
(ii) With regard to the aforesaid accident, a complaint was lodged before the South Police Station, Rajapalayam, and based on the same, First Information Report has been registered in Crime No.500/2014 under Sections 279 and 338 IPC against the driver of the 2 nd respondent namely 1st respondent and after investigation, a charge sheet has been filed and the case is pending before the Judicial Magistrate, Rajapalayam.
(iii) At the time of accident, the petitioner was hale and healthy and he was aged about 25 years and he was working as Office Assistant in Kalasalingam University, Srivilliputtur, and was getting monthly salary of Rs.11,667/- and he spent the entire income to his family. Due to the said accident, the petitioner is not able to go to job and he is not able to attend his http://www.judis.nic.in 4/14 C.M.A.(MD).No.25 of 2019 regular activities and hence, the petitioner claimed Rs.40,00,000/- as compensation.
(iv) At the time of accident, the lorry belonging to the second respondent was driving by the first respondent and the said lorry was duly insured with the third respondent and hence, the respondents 1 to 3 are jointly and severally liable to pay compensation.
5. The respondents 1 and 2 remained ex-parte before the Tribunal. The third respondent/Insurance Company alone contested the claim petition by filing counter statement.
6. The averments made in the counter filed by the 3rd respondent/Insurance Company are in brief as follows:-
(i) The petitioner has suppressed the real facts regarding the manner in which the accident occurred. It is not admitted that at the time of accident, the 2nd respondent's lorry was insured with the 3rd respondent. It is also not admitted that the accident was due to the rash and negligent act of the 2nd respondent's driver (1st respondent). The 2nd respondent's lorry was not involved in the accident. The age and income of the petitioner are denied. The petitioner http://www.judis.nic.in 5/14 C.M.A.(MD).No.25 of 2019 sustained only simple injury and the same was already healed. So, the petitioner has not sustained any loss of income or permanent disability.
(ii) Further, the 2nd respondent's driver namely the first respondent was not having valid and effective driving license to drive the vehicle and hence, the 3rd respondent/Insurance Company is not liable to pay compensation.
In any event, the amount of compensation claimed by the petitioner is highly excessive and therefore, the 3rd respondent/Insurance Company prayed to dismiss the claim petition.
7. During enquiry before the Tribunal, on the side of the petitioner, the petitioner examined himself as P.W.1 and also examined two more witnesses as P.W.2 & P.W.3. He has marked Exs.P.1 to P.20 as exhibits. On the side of the respondents neither oral nor documentary evidence has been adduced.
8. The learned Tribunal, after considering the materials placed before it, found that the accident took place due to the rash and negligent driving of the lorry by the 1st respondent. Further, after taking into consideration the petitioner's job, his salary and nature of injuries sustained by him and the percentage of the disability, the Tribunal has allowed the claim petition partly http://www.judis.nic.in 6/14 C.M.A.(MD).No.25 of 2019 and directed the 3rd respondent/Insurance Company to pay a sum of Rs.35,02,243/- with interest at the rate of 7.5% from the date of petition. Feeling aggrieved, the 3rd respondent/Insurance Company has filed the present Civil Miscellaneous Appeal.
9. Heard Mr.K.Baskaran, the learned counsel for the appellant/Insurance Company and Mr.M.Ashok Kumar, the learned counsel for the 1st respondent/petitioner.
10. The learned counsel for the appellant has submitted that the learned Tribunal erred in coming to the conclusion that the petitioner has lost 60% earning capacity. He further submitted that as per the disability certificate issued by the Medical Board, the petitioner has suffered only 60% of the disability and that being so, he can earn something by doing certain works. He further submitted that the Tribunal has awarded a sum of Rs.18,90,108/- towards loss of Income, Rs.1,50,000/- towards pain and sufferings, Rs. 3,00,000/- towards loss of amenities, Rs.2,00,000/-towards Future Medical Expenses, Rs.30,000/- towards Attender Charges and Rs.40,000/- towards Transport Expenses and the same are highly excessive and therefore, he prayed to modify the same.
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11. Per contra, the learned counsel for the first respondent/petitioner supported the order/award of the learned Tribunal.
12. This Court has carefully considered the rival submissions made on either side and the materials produced by both the parties and the order/award passed by the learned Tribunal.
13. The learned Tribunal taking into consideration the evidence of the petitioner and also the fact that the first respondent has admitted the case before the criminal Court and no evidence has been adduced on the side of the respondents to controvert the evidence of the petitioner, has held that the accident took place due to the rash and negligent driving of the lorry by the first respondent. The learned counsel for the appellant also has not challenged the aforesaid findings of the Tribunal. He challenged only the quantum of the compensation awarded by the Tribunal. So, the only point to be considered in this appeal is whether the compensation amount awarded by the Tribunal is excessive? If so what is the just compensation to be awarded.?
14.Point:- The learned Tribunal, relying upon the salary certificate (Ex.P.17), has held that the petitioner was working as Office Assistant in http://www.judis.nic.in 8/14 C.M.A.(MD).No.25 of 2019 Kalasalingam University, Srivilliputtur and he was getting monthly salary of Rs. 11,667/-. Further, taking into consideration the age mentioned in the salary certificate, the learned Tribunal has fixed the age of the petitioner as 39 years at the time of accident. Further, the Tribunal, relying upon the Discharge Summary (Ex.P9) issued by the Apollo Hospital, Madurai, disability certificate (Ex.P.20) issued by the Medical Board, and the oral evidence of PW3, has held that the petitioner has sustained injuries on the hip and Kidney has been damaged and he is on catheter care and the same has to be changed once in a week. Further, it has held that the petitioner has sustained fracture in the pelvis, crush injury in the right thigh and petitioner cannot stand and sit and he sustained 60% permanent disability and he cannot do his regular works as he has done before the accident and hence, he has lost 60% of earning capacity. Further, the learned Tribunal added 50% towards Future prospects and calculated the monthly income as Rs.17,501/- (Rs.11,667/- + 5834/-). Further, considering the age of the deceased at the time of accident ( 39 years), the Tribunal has applied the multiplier of 15 and calculated the loss of income as Rs.18,90,108/- (17501 x 12 x 15 x 60/100) and finally the Tribunal has awarded a sum of Rs.35,02,243/- (Rupees Thirty Five Lakhs Two Thousand Two Hundred and Forty Three Only) as compensation under the following heads:-
http://www.judis.nic.in 9/14 C.M.A.(MD).No.25 of 2019 Sl.No Description Awarded amount
1. Medical Bills – Ex.P.11 Rs. 7,81,135/-
2. Physiotherapy Expenses – Ex.P.14 Rs. 50,000/-
3. Future Medical Expenses – Ex.P.19 Rs. 2,00,000/-
4. Loss of Income Rs. 18,90,108/-
5. Pain and Suffering Rs. 1,50,000/-
6. Loss of Amenities Rs. 3,00,000/-
7. Attender Charges Rs. 30,000/-
8. Nutrition Rs. 25,000/-
9. Transport Expenses Rs. 40,000/-
10. Loss of Expectation of life Rs. 35,000/-
11. Loss of cloths Rs. 1,000/-
Total Rs. 35,02,243/-
15. This Court does not find any infirmity in the award passed by the learned Tribunal under the various heads except under the heads of Loss of Amenities and Loss of expectation of life.
16. In sofar as awarding of compensation under the heads of loss of amenities and loss of expectation of life is concerned it would be relevant to refer to the decision in Rajkumar Vs Ajaykumar and another (2011) 1 SCC 343, wherein, the Hon'ble Superme Court in para-15 has held as follows:-
http://www.judis.nic.in 10/14 C.M.A.(MD).No.25 of 2019 “15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation . Be that as it may.”
17. In this case, the learned Tribunal has awarded compensation by treating the loss of future earning capacity as 60% which is more than 50%.
Hence, in the light of the aforesaid decision of the Hon'ble Supreme Court only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life. Therefore, the compensation awarded by the Tribunal under the heads of loss of amenities and loss of expectation of life are reduced to Rs.10,000/- each. Accordingly, this point is answered. http://www.judis.nic.in 11/14 C.M.A.(MD).No.25 of 2019
18.The modified award amount is tabulated hereunder:-
Sl.No Description Modified amount
1. Medical Bills - Ex.P.11 Rs. 7,81,135/-
2. Physiotherapy Expenses – Ex.P.14 Rs. 50,000/-
3. Future Medical Expenses – Ex.P.19 Rs. 2,00,000/-
4. Loss of Income Rs. 18,90,108/-
5. Pain and Suffering Rs. 1,50,000/-
6. Loss of Amenities Rs. 10,000/-
7. Attender Charges Rs. 30,000/-
8. Nutrition Rs. 25,000/-
9. Transport Expenses Rs. 40,000/-
10. Loss of Expectation of life Rs. 10,000/-
11. Loss of cloths Rs. 1,000/-
Total Rs. 31,87,243/-
19. In the result, the Civil Miscellaneous Appeal is partly allowed and the award passed by the Tribunal to the tune of Rs.35,02,243/- (Rupees Thirty Five Lakhs Two Thousand Two Hundred and Forty Three Only) is reduced to Rs.31,87,243/- (Rupees Thirty one Lakhs Eighty Seven Thousand and Two Hundred and Forty Three Only). There is no order as to costs. Consequently, connected miscellaneous petition is closed. The appellant / Insurance Company Ltd., is directed to deposit the aforesaid amount along with interest at the rate of 7.5% p.a. from the date of petition till the date of deposit and also the proportionate cost of the petitioner before the Tribunal within a period of eight http://www.judis.nic.in 12/14 C.M.A.(MD).No.25 of 2019 weeks from the date of receipt of a copy of this judgment, less the amount already deposited if any. On such deposit, the Tribunal is directed to transfer the award amount to the 1st respondent/claimant's account by way of RTGS, within a period of three weeks thereafter.
(M.S.N.J.,) (P.R.M.J.,)
09.11.2020
Index :yes
Internet :yes
Speaking order/Non-Speaking Order
dss
To
1. The Motor Accidents Claims Tribunal cum Sub Judge, Srivilliputtur.
2. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.
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dss Judgment made in C.M.A.(MD).No.25 of 2019 in CMP(MD)No.358 of 2019 09.11.2020 http://www.judis.nic.in 14/14