Madras High Court
United India Insurance Company Limited vs Ponraj on 28 April, 2025
CMA.Nos.3201, 3204, 3211, 3221 and 3223 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:28.04.2025
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CMA.Nos.3201, 3204, 3211, 3221 and 3223 of 2021
and CMP.Nos.18280, 18304, 18324, 18378 and 18382 of 2021
CMA.No.3201 of 2021:
United India Insurance Company Limited,
139, C.G.Complex, 3rd Floor,
Kumaran Road, Tirupur – 641 601.
... Appellant
Vs.
1.Ponraj
2.Shankaramoorthi
3.Abdul Khadhar
4.Azees
5.New India Assurance Company Limited,
T.P.Hub, Obbli Towers, O.B.Road,
R.S.Puram, Coimbatore. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, against the award and decree dated 28.03.2018 made in
MCOP.No.1650 of 2014 on the file of the Motor Accident Claims Tribunal,
II Additional District Judge, Tirupur.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.A.Immanuel for R1
Mr.A.Salomi for R5
No Appearance for R2 and R4
R3-notice returned
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CMA.Nos.3201, 3204, 3211, 3221 and 3223 of 2021
CMA.No.3204 of 2021:
United India Insurance Company Limited,
139, C.G.Complex, 3rd Floor,
Kumaran Road, Tirupur – 641 601.
... Appellant
Vs.
1.Jaya Rubi
2.Shankaramoorthi
3.Abdul Khadhar
4.Azees
5.New India Assurance Company Limited,
T.P.Hub, Obbli Towers, O.B.Road,
R.S.Puram, Coimbatore. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, against the award and decree dated 28.03.2018 made in
MCOP.No.1649 of 2014 on the file of the Motor Accident Claims Tribunal,
II Additional District Judge, Tirupur.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.A.Immanuel for R1
Mr.A.Salomi for R5
No Appearance for R2 and R4
R3-notice returned
CMA.No.3211 of 2021:
United India Insurance Company Limited,
139, C.G.Complex, 3rd Floor,
Kumaran Road, Tirupur – 641 601.
... Appellant
Vs.
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1.Rosilin
2.Shankaramoorthi
3.Abdul Khadhar
4.Azees
5.New India Assurance Company Limited,
T.P.Hub, Obbli Towers, O.B.Road,
R.S.Puram, Coimbatore. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, against the award and decree dated 28.03.2018 made in
MCOP.No.1638 of 2014 on the file of the Motor Accident Claims Tribunal,
II Additional District Judge, Tirupur.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.A.Immanuel for R1
Mr.A.Salomi for R5
No Appearance for R2 and R4
R3-notice returned
CMA.No.3221 of 2021:
United India Insurance Company Limited,
139, C.G.Complex, 3rd Floor,
Kumaran Road, Tirupur – 641 601.
... Appellant
Vs.
1.Mohanraj
2.Shankaramoorthi
3.Abdul Khadhar
4.Azees
5.New India Assurance Company Limited,
T.P.Hub, Obbli Towers, O.B.Road,
R.S.Puram, Coimbatore. ... Respondents
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Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, against the award and decree dated 28.03.2018 made in
MCOP.No.1646 of 2014 on the file of the Motor Accident Claims Tribunal,
II Additional District Judge, Tirupur.
CMA.No.3223 of 2021:
United India Insurance Company Limited,
139, C.G.Complex, 3rd Floor,
Kumaran Road, Tirupur – 641 601.
... Appellant
Vs.
1.Joshva
2.Shankaramoorthi
3.Abdul Khadhar
4.Azees
5.New India Assurance Company Limited,
T.P.Hub, Obbli Towers, O.B.Road,
R.S.Puram, Coimbatore. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, against the award and decree dated 28.03.2018 made in
MCOP.No.1642 of 2014 on the file of the Motor Accident Claims Tribunal,
II Additional District Judge, Tirupur.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.A.Immanuel for R1
Mr.A.Salomi for R5
No Appearance for R2 and R4
R3-notice returned
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CMA.Nos.3201, 3204, 3211, 3221 and 3223 of 2021
COMMONJUDGMENT
These Appeals are filed by the insurer of Mini Bus involved in
a road accident that had occurred on 22.10.2014.
2. The first respondent in all these appeals is the claimant in
the respective claim petitions. The second respondent in all these appeals is
the owner of the Mini bus involved in the accident, in which the claimants
travelled as passengers. The appellant herein is the insurer of the Mini Bus
involved in the accident. The 3rd respondent is the registered owner of the
lorry/another vehicle involved in the accident. The 4th respondent is the
policy holder of the lorry. The 5th respondent is the insurer of the lorry.
3. It is the case of the claimant/first respondent in all the
appeals that they travelled in a Mini Bus belonged to the second respondent
and the said vehicle was driven by its driver in a rash and negligent manner
and dashed against the lorry belonged to the 3rd respondent insured with the
5th respondent. As a result of the accident, the claimant in all the cases
sustained grievous injuries. The claim petitions were filed by them seeking
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compensation against the owner and insurer of the Mini Bus as well as
owner and insurer of the lorry involved in the accident.
4. The claim petitions were resisted by the appellant/insurer of
the Mini Bus by denying the age, occupation and monthly income of the
respective claimants. The appellant also denied the manner of accident as
described in the claim petitions and sought for dismissal of the original
petitions.
5. The respondents 4 and 5 insured and insurer of the lorry
filed counter and opposed the claim petitions on the ground that the accident
had not occurred due to the negligence on the part of the driver of the lorry.
The claim petitions were also resisted by denying the age, income and
nature of injury as mentioned in the claim petitions.
6. Before the Tribunal, totally ten claim petitions were filed by
the passengers injured in the very same accident, who travelled in the Mini
Bus and all the claim petitions were tried together as they were connected
with each other. Before the Tribunal, the respective claimants were
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examined as PW.1 to PW.10. The claimants also examined five other
witnesses as PW.11 to PW.15, including a Doctor, who was examined as
PW.12. On behalf of the claimants, 54 documents were marked in support
of their claim. On behalf of the respondents, official of the appellant and
the 5th respondent/Insurance Company were examined as RW.1 and RW.2
and two documents were marked as Exs.R1 and R2.
7. The Tribunal based on the evidence available on record
came to the conclusion that both the drivers of the Mini Bus and lorry
contributed to the accident and fixed 75% negligence on the part of the
driver of the Mini Bus and 25% negligence on the part of the driver of the
lorry. The amount payable to the respective claimants in the above appeals
were quantified at Rs.13,25,000/-, Rs.9,00,000/-, Rs.9,10,000/-,
Rs.17,00,000/- and Rs.10,00,000/- respectively. Aggrieved by the same,
the insurer of the Mini Bus has filed these appeals.
8. The learned counsel appearing for the appellant would
submit that the Tribunal committed an error in fixing 75% negligence on the
part of the driver of the Mini Bus without properly appreciating the
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evidence available on record. He further submitted that in the absence of
any evidence to show that the injury suffered by the claimants would
interfere with their respective avocation, the Tribunal committed an error in
adopting multiplier method in all these cases.
9. The learned counsel appearing for the first
respondent/claimants in all the appeals tried to sustain the award by
submitting that on proper appreciation of oral and documentary evidence,
the Tribunal came to the conclusion that the contributory negligence was on
the part of the driver of the Mini Bus and hence fixed 75% negligence on
him. He further submitted that all the claimants in the respective Original
Petitions sustained grievous injuries which would directly affect their
avocation and therefore, the Tribunal was justified in adopting multiplier
method in calculating the compensation.
10. It is seen from the evidence let in before the Tribunal, the
lorry insured with the 5th respondent was parked on the edge of the road and
Mini Bus dashed against the parked vehicle. All the claimants who were
examined as PW.1 to PW.10 uniformly deposed that Mini Bus was driven
by its driver in a rash and negligent manner and dashed against the lorry.
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11. It is seen from Ex.P1-First Information Report, the
criminal case was registered only against the driver of the Mini Bus. The
Deputy Manager of the 5th respondent/Insurance Company, insurer of the
lorry, who was examined as RW.2, clearly admitted that the lorry was
parked in the road portion. Therefore, the Tribunal observed that parking
lorry in the road portion of the National Highway, without parking it in the
area ear-marked for parking vehicle per se would amount to negligence on
the part of the driver of the lorry and hence he had also contributed to the
accident. Even, if the vehicle is parked on the road portion, had the driver
of the Mini Bus driven the vehicle slowly and steadily, he could have
avoided the accident. Having regard to the fact, the Mini Bus was dashed
against parked lorry, this Court comes to the conclusion that negligence on
the part of the driver of the Mini Bus is much more than the negligence on
the part of the driver of the lorry. On careful consideration of the evidence
of PW.1 to PW.10, contents of FIR and the evidence of RW.2, this Court
comes to the conclusion that the Tribunal was justified in fixing 75%
negligence on the part of the Mini Bus and 25% negligence on the part of
the driver of the lorry.
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12. In order to prove the nature of injury and disability, the
claimants examined PW.12-Doctor. In order to prove the avocation, the
claimants examined PW.13 who was representative of the employer of the
claimants. It is also seen that PW.12 did not treat the claimants and he
issued disability certificate only by examining the claimants after sometime.
Insofar as the claimant in CMA.No.3201 of 2021 is concerned,
PW.12-Doctor issued disability certificate and the same was marked as
Ex.P53. He issued disability certificate fixing disability at 53.1%. A
perusal of the medical documents and disability certificate would indicate
that the claimant in CMA.No.3201 of 2021 suffered fracture in left femur
bone. PW.13, in his evidence deposed that the claimant in CMA.No.3201
of 2021 was working as a Manager in A.P.R Traders and was earning
Rs.20,000/- per month. The responsibility of the Manager is supervisory in
nature and there is no necessity for him to do any manual work. In these
circumstances, admittedly, there is nothing on record to suggest that the
claimant in CMA.No.3201 of 2021 suffered disability which would
interfere with his occupation. In the absence of concrete evidence to
suggest that the injury suffered by the claimant interfered with his
occupation, the Tribunal without giving any reason proceeded to adopt
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multiplier method, therefore, the same is liable to be set aside. Since the
claimants suffered 53.1% of disability, this Court proceeds to grant
compensation on percentage basis. The accident had occurred in the year
2014, following the judgment of the Division Bench in Future General
India Insurance Company Limited Vs. Manivannan in CMA.No.3334 of
2021, dated 15.06.2022, this Court decides to grant Rs.4,000/- per
percentage of disability. Therefore, the claimant in CMA.No.3201 of 2021
is entitled to Rs.2,12,040/- (53.1xRs.4,000) under the head disability. The
amount awarded by the Tribunal under the head medical expenses is based
on the documents and hence, the same is affirmed. The amount awarded by
the Tribunal under various other heads like pain and suffering, extra
nourishment, attender charges and transport expenses are reasonable and
hence they are affirmed. This Court feels it would be appropriate to grant a
sum of Rs.40,000/- under the head loss of amenities. Taking into
consideration the nature of injury suffered by the claimant, he would have
been kept out of work for atleast three months. Therefore, Rs.36,000/-
(Rs.12,000x3) is granted under the head loss of income during treatment
period. In all, the claimant is entitled to Rs.5,86,200/-.
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13. In view of the discussions made earlier, the common award
passed by the Tribunal, out of which, CMA.No.3201 of 2021 is modified as
follows:
S.No Description Amount Amount
awarded by awarded by this
Tribunal Court
(Rs) (Rs)
1. Disability/Loss of earning Rs.10,41,768/- Rs.2,12,400/-
capacity
2. Medical expenses Rs.1,67,800/- Rs.1,67,800/-
3. Pain and suffering Rs.50,000/- Rs.50,000/-
4. Extra Nourishment Rs.40,000/- Rs.40,000/-
5. Attender charges Rs.25,000/- Rs.25,000/-
6. Transport expenses Rs.15,000/- Rs.15,000/-
7. Loss of amenities - Rs.40,000/-
8. Loss of income during - Rs.36,000/-
treatment period for three
months
Total Rs.13,39,568/- Rs.5,86,200/-
14. In view of the discussions made earlier, the claimant is
entitled to reduced sum of Rs.5,86,200/- with interest at the rate of 7.5%
per annum on the reduced award.
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15. Accordingly, this Civil Miscellaneous Appeal
[CMA.No.3201 of 2021] is partly allowed, the award amount is reduced to
Rs.5,86,200/-. Out of the above said amount, the appellant is liable to pay
Rs.4,39,650/- towards 75% of the contributory negligence and the 5th
respondent is liable to pay Rs.1,46,550/- towards 25% of the contributory
negligence.
16. As far as, the CMA.No.3204 of 2021 is concerned, PW.13
in his evidence had stated that claimant was working as a Manager, APR
Traders, Tirupur. In the disability certificate issued by PW.12-Doctor
which was marked as Ex.P51, the disability was fixed at 36.6%. The
medical documents produced by the claimant would indicate that he
suffered fracture in the right hand. Since the claimant is working in a
Managerial Job, she is not expected to do any manual work. Therefore,
there is no evidence on record to suggest that the fracture injury suffered by
the claimant would interfere with her avocation, therefore, the Tribunal
committed an error in applying multiplier method, in the absence of any
evidence to suggest that the disability suffered would interfere with her
avocation. Therefore, this Court decides to calculate the compensation
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under the head disability on percentage basis and fix the same at
Rs.1,46,400/- (Rs.4,000x36.6%). The amount awarded by the Tribunal
under various other heads namely pain and suffering, transport expenses are
reasonable and hence they are affirmed. This Court feels it would be
appropriate to grant a sum of Rs.40,000/- under the head loss of amenities.
Taking into consideration the nature of injury suffered by the claimant, she
would have been kept out of her work for atleast three months. Therefore,
she is entitled to Rs.36,000/- (Rs.12,000x3) under the head loss of income
during treatment period and the same is granted. In all, the claimant is
entitled to Rs.4,01,200/- .
17. In view of the discussions made earlier, the award passed
by the Tribunal, out of which, CMA.No.3204 of 2021 arises is modified as
follows:
S.No Description Amount Amount
awarded by awarded by this
Tribunal Court
(Rs) (Rs)
1. Disability/Loss of earning Rs.7,25,760/- Rs.1,46,400/-
capacity
2. Medical expenses Rs.48,800/- Rs.48,800/-
3. Pain and suffering Rs.50,000/- Rs.50,000/-
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4. Extra Nourishment Rs.40,000/- Rs.40,000/-
5. Attender charges Rs.25,000/- Rs.25,000/-
6. Transport expenses Rs.15,000/- Rs.15,000/-
7. Loss of amenities - Rs.40,000/-
8. Loss of income during - Rs.36,000/-
treatment period for three
months
Total Rs.9,04,560/- Rs.4,01,200/-
18. Therefore, the claimant is entitled to reduced sum of
Rs.4,01,200/- with interest at the rate of 7.5% per annum on the reduced
award.
19. Accordingly, this Civil Miscellaneous Appeal is partly
allowed, the award amount is reduced to Rs.4,01,200/-. Out of the above
said amount, the appellant is liable to pay Rs.3,00,900/- towards 75% of the
contributory negligence and the 5th respondent is liable to pay Rs.1,00,300/-
towards 25% of the contributory negligence.
20. As far as CMA.No.3211 of 2021 is concerned, PW.12-
Doctor issued disability certificate fixing disability at 37%. The claimant
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who was examined as PW.5 in her evidence deposed that she was employed
as a helper in D.I.Tex, Tiruppur. The medical document, disability
certificate etc., produced by the claimant and the evidence of PW.12 would
indicate that the claimant suffered fracture of right femur bone and she was
treated with internal plate fixation. However, there is no concrete evidence
to suggest that the disability suffered by her interfered with her occupation.
When there is no evidence available on record to suggest that the disability
affected the occupation of the claimant, the Tribunal ought not have applied
multiplier method. Therefore, this Court proceeds to grant Rs.4,000/- per
percentage of disability and quantify the compensation accordingly. The
claimant is entitled to Rs.1,48,000/- (Rs.4,000/-x37) under the head
disability. The amount of Rs.90,300/- awarded by the Tribunal under the
head medical expenses is based on medical bills produced by the claimant
and hence the same is confirmed. The amount awarded by the Tribunal
under the head pain and suffering, extra nourishment, attender charges and
transport expenses are reasonable and hence they are affirmed. Having
regard to the nature of the injury suffered by the claimant, this Court feels it
would be appropriate to grant a sum of Rs.40,000/- under the head loss of
amenities. The claimant would have been kept out of her work for atleast
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three months. Therefore, Rs.36,000/- (Rs.12,000x3) is granted under the
head loss of income during treatment period. In all, the claimant is entitled
to Rs.4,44,300/-.
21. In view of the discussions made earlier, the award passed
by the Tribunal, out of which, CMA.No.3211 of 2021 is modified as
follows:
S.No Description Amount Amount
awarded by awarded by this
Tribunal Court
(Rs) (Rs)
1. Disability/earning capacity Rs.6,99,300/- Rs.1,48,000/-
2. Medical expenses Rs.90,300/- Rs.90,300/-
3. Pain and suffering Rs.50,000/- Rs.50,000/-
4. Extra Nourishment Rs.40,000/- Rs.40,000/-
5. Attender charges Rs.25,000/- Rs.25,000/-
6. Transport expenses Rs.15,000/- Rs.15,000/-
7. Loss of amenities - Rs.40,000/-
8. Loss of income during - Rs.36,000/-
treatment period
Total Rs.9,19,600/- Rs.4,44,300/-
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22. In view of the discussions made earlier, the claimant is
entitled to reduced sum of Rs.4,44,300/- with interest at the rate of 7.5%
per annum on the reduced award.
23. Accordingly, this Civil Miscellaneous Appeal is partly
allowed, the award amount is reduced to Rs.4,44,300/-/-. Out of the above
said amount, the appellant is liable to pay Rs.3,33,225/- towards 75% of the
contributory negligence and the 5th respondent is liable to pay Rs.1,11,075/-
towards 25% of the contributory negligence.
24. As far as CMA.No.3221 of 2021 is concerned, as per the
medical evidence and disability certificate issued to the claimant, he
suffered fracture in right femur bone and tibia. He underwent surgery and
his fracture was treated by internal fixation. PW.12-Doctor, who examined
the claimant issued Ex.P49-disability certificate fixing the disability at
47.7%. The claimant, who was examined as PW.7 deposed that he was
working as a Senior Merchandiser, Geena Garments, Tirupur. Therefore, it
is clear that the nature of claimant's job is supervisory and he will not
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engage in any manual work. Further, there is no other evidence available
on record to suggest that the nature of injury suffered by claimant interfered
with his avocation in any way. In these circumstances, the Tribunal
committed an error in applying multiplier method without any discussions
and the same has to be interfered with. Taking into consideration the nature
of the injury and the avocation of the claimant, this Court proceeds to fix
compensation under the head disability on percentage basis. Accordingly,
the claimant is entitled to Rs.1,90,800/- (Rs.4000x47.7) under the head
disability. The Tribunal awarded a sum of Rs.1,68,500/- under the head
medical expenses and the same is based on medical documents produced by
the claimant. The amount awarded by the Tribunal under various other
heads namely pain and suffering, extra nourishment, attender charges and
transport expenses etc., are reasonable and hence affirmed. Having regard
to the nature of the injury suffered by the claimant, this Court decides to
grant Rs.40,000/- under the head loss of amenities. The claimant would
have been kept out of work for atleast three months. Therefore, a sum of
Rs.36,000/- (Rs.12,000x3) is fixed under the head loss of income during
treatment period. Therefore, in all, the claimant is entitled to Rs.5,65,300/-
.
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25. In view of the discussions made earlier, the common award
passed by the Tribunal, out of which, CMA.No.3221 of 2021 is modified as
follows:
S.No Description Amount Amount
awarded by awarded by this
Tribunal Court
(Rs) (Rs)
1. Disability/earning capacity Rs.14,29,740/- Rs.1,90,800/-
2. Medical expenses Rs.1,68,500/- Rs.1,68,500/-
3. Pain and suffering Rs.50,000/- Rs.50,000/-
4. Extra Nourishment Rs.40,000/- Rs.40,000/-
5. Attender charges Rs.25,000/- Rs.25,000/-
6. Transport expenses Rs.15,000/- Rs.15,000/-
7. Loss of amenities - Rs.40,000/-
8. Loss of income during - Rs.36,000/-
treatment period
Total Rs.17,28,240/- Rs.5,65,300/-
26. In view of the discussions made earlier, the claimant is
entitled to reduced sum of Rs.5,65,300/- with interest at the rate of 7.5%
per annum on the reduced award.
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27. Accordingly, this Civil Miscellaneous Appeal is partly
allowed, the award amount is reduced to Rs.5,65,300/-. Out of the above
said amount, the appellant is liable to pay Rs.4,23,975/- towards 75% of the
contributory negligence and the 5th respondent is liable to pay Rs.1,41,325/-
towards 25% of the contributory negligence.
28. In CMA.No.3223 of 2021, the claimant suffered fracture in
the right maxilla bone, it is stated that since there is mal-union of the bone,
he has got pain in his jaw. The medical witness PW.12, who examined the
claimant issued disability certificate Ex.P45 fixing the disability at 25%.
The claimant in his evidence deposed that he was engaged in self business
under the name and style of Tiruppur A.I.Traders and he was earning
Rs.20,000/- per month. From his evidence, it is clear that he is not doing
any manual job and fracture injury suffered by him in his face would not
interfere with his avocation. Therefore, the Tribunal ought not have applied
multiplier method without any evidence to show that the injury suffered by
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the claimant interfered with his avocation. Hence, the same is set aside.
Having regard to the nature of the injury suffered by the claimant, this Court
decides to grant compensation under the head disability on percentage basis.
The claimant is entitled to Rs.1,00,000/- under the head disability
(Rs.4,000/- x25%). The Tribunal awarded a sum of Rs.89,490/- under the
head medical expenses based on the medical bills produced by the
claimant, therefore, it is affirmed. The amount awarded by the Tribunal
under the head pain and suffering, extra nourishment, attender charges and
transport expenses are reasonable and hence they are affirmed. Having
regard to the nature of the injury suffered by the claimant, this Court is
inclined to award a sum of Rs.40,000/- under the head loss of amenities.
The claimant would have been kept out of work for atleast three months.
Therefore, Rs.36,000/- (Rs.12,000x3) is fixed under the head loss of earning
capacity. In all, the claimant is entitled to Rs.3,95,490/-.
29. In view of the discussions made earlier, the common award
passed by the Tribunal, out of which, CMA.No.3223 of 2021 is modified as
follows:
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S.No Description Amount Amount
awarded by awarded by this
Tribunal Court
(Rs) (Rs)
1. Disability/earning capacity Rs.8,19,000/- Rs.1,00,000/-
2. Medical expenses Rs.89,490/- Rs.89,490/-
3. Pain and suffering Rs.50,000/- Rs.50,000/-
4. Extra Nourishment Rs.40,000/- Rs.40,000/-
5. Attender charges Rs.25,000/- Rs.25,000/-
6. Transport expenses Rs.15,000/- Rs.15,000/-
7. Loss of amenities - Rs.40,000/-
8. Loss of income during - Rs.36,000/-
treatment period
Total Rs.10,38,490/- Rs.3,95,490/-
30. In view of the discussions made earlier, the claimant is
entitled to reduced sum of Rs.3,95,490/- with interest at the rate of 7.5%
per annum on the reduced award.
31. Accordingly, this Civil Miscellaneous Appeal is partly
allowed, the award amount is reduced to Rs.3,95,490/-. Out of the above
said amount, the appellant is liable to pay Rs.2,96,618/- towards 75% of the
contributory negligence and the 5th respondent is liable to pay Rs.98,872/-
towards 25% of the contributory negligence.
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32. It is submitted by the learned counsel for the appellant and
learned counsel appearing for the first respondent that the 5th respondent
insurer has not challenged the award fixing multiplier method and hence
25% of the award passed against the 5th respondent has attained finality.
Therefore, after recovering 25% share of the 5th respondent from the original
award, if any amount is payable by the appellant towards its share as
determined under this appeal only is recoverable from the appellant. Now,
in the appeal filed by the insurer of the Mini Bus/appellant herein, this
Court came to the conclusion that the Tribunal erroneously adopted
multiplier method, when there was no evidence available on record to come
to the conclusion that injury suffered by respective claimants interfered with
their avocation. When the decision of the Tribunal to apply multiplier
method is interfered with in the appeal filed by the insurer of the Mini Bus,
the said findings of the Tribunal, insofar as the share of the 5th respondent is
concerned, cannot be allowed to stand. The conclusion arrived at by this
Court, with regard to the adoption of percentage basis for calculating
compensation under the head disability cannot be reconciled with the
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finding of the Tribunal, insofar as unchallenged portion of the award.
Exactly in the situation like this, this Court is entitled to exercise its power
under Order 41 Rule 33 of CPC and modify the decree insofar as the
unchallenged portion is concerned. In this regard reference may be had to
Choudhary Sahu v. State of Bihar reported in 1982 (1) SCC 232. The
relevant observation of the Apex Court reads as follows:
"9. Reliance has been placed on Nirmala Bala Ghose v. Balai
Chand Ghose [AIR 1965 SC 1874 : (1965) 3 SCR 550] . This
Court dealing with the scope of Order 41 Rule 33, observed as
follows:
“The rule is undoubtedly expressed in terms which are wide, but
it has to be applied with discretion, and to cases where
interference in favour of the appellant necessitates interference
also with a decree which has by acceptance or acquiescence
become final so as to enable the Court to adjust the rights of the
parties. Where in an appeal the Court reaches a conclusion
which is inconsistent with the opinion of the Court appealed from
and in adjusting the right claimed by the appellant it is necessary
to grant relief to a person who has not appealed, the power
conferred by Order 41 Rule 33 may properly be invoked. The
rule, however, does not confer an unrestricted right to re-open
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decrees which have become final merely because the appellate
Court does not agree with the opinion of the Court appealed
from”.
10. In the case cited above, there were two sets of defendants in
the suit and in substance two decrees, though corelated, were
passed. One of the decrees could stand apart from the other. One
set of defendants were two deities. The suit was decreed against
them. They did not go up in appeal nor did they take part in the
proceedings either before the High Court or before the Supreme
Court, although they were impleaded as respondents. The other
set of defendants, Nirmala, sought to invoke the powers of the
appellate court under Order 41 Rule 33 to pass a decree in
favour of a party not appealing so as to give the latter a benefit
which she had not claimed. In such a situation this Court
observed:
“When a party allows a decree of the Court of first instance to
become final, by not appealing against the decree, it would not be
open to another party to the litigation, whose rights are otherwise
not affected by the decree, to invoke the powers of the appellate
Court under Order 41 Rule 33, to pass a decree in favour of the
party not appealing so as to give the latter a benefit which he has
not claimed. Order 41 Rule 33 is primarily intended to confer
power upon the appellate Court to do justice by granting relief to
a party who has not appealed, when refusing to do so, would
result in making inconsistent, contradictory or unworkable
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orders”.
11. Counsel for the State of Bihar, on the other hand, referred
to Giani Ram v. Ramji Lal [(1969) 1 SCC 813 : (1969) 3 SCR
944] . While construing the provisions of Order 41 Rule 33, this
Court observed:
“The expression “which ought to have been passed” means
“what ought in law to have been passed”. If the Appellate Court
is of the view that any decree which ought in law to have been
passed was in fact not passed by the subordinate court, it may
pass or make such further or other decree or order as the justice
of the case may require”.
12. The object of this Rule is to avoid contradictory and
inconsistent decisions on the same questions in the same suit. As
the power under this rule is in derogation of the general principle
that a party cannot avoid a decree against him without filing an
appeal or cross-objection, it must be exercised with care and
caution. The Rule does not confer an unrestricted right to re-open
decrees which have become final merely because the appellate
court does not agree with the opinion of the court appealed from.
13. Ordinarily, the power conferred by this Rule will be confined
to those cases where as a result of interference in favour of the
appellant further interference with the decree of the lower court
is rendered necessary in order to adjust the rights of the parties
according to justice, equity and good conscience. While
exercising the power under this Rule the court should not lose
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sight of the other provisions of the Code itself nor the provisions
of other laws, viz. the law of limitation or the law of court fees
etc.
33. In Venukuri Krishna Reddi v. Kota Ramireddi reported in
AIR 1954 Mad 848, a Division Bench of this Court, while considering
scope of power available under Order 41 Rule 33 of CPC, observed as
follows:
"10. Though Order 41, Rule 33 confers wide and
unlimited jurisdiction on courts to pass a decree in favour of a
party who has not preferred any appeal, there are, however,
certain well defined principles in accordance with which that
jurisdiction should be exercised. Normally a party who is
aggrieved by a decree should, if he seeks to escape from its
operation, appeal against it within the time allowed after
complying with the requirements of law. Where he fails to do
so, no relief should ordinarily be given to nun under Order 41,
Rule 33.
As observed in -- 'Jawahar Bano v. Shujaat Husain Beg',
MANU/UP/0233/1920 : AIR1921All367 (H) explaining the
decision of the Full Bench in -- 'Rangamlal v. Chandu', 34 All
32 (I):
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"where there is no sufficient reason for a respondent
neglecting either to appeal or to file objections the courts will
hesitate before allowing him to object at the hearing or the
appeal."
In -- 'Abjal Majhi v. Intu Bepari', AIR 1916 Cal 250 (J)
Mukherjee J. observed:
"This rule is no doubt very widely expressed; but clearly, it
should not be applied so as to enable a party litigant to ignore
the other provisions of the Code or provisions of statutes like
those which relate to the limitation or payment of court-fees".
Vide also -- 'Akimannessa v. Bepin Behari', AIR 1916 Cal 261
(K).
But there are well recognised exceptions to this rule. One is
where as a result of interference in favour of the appellant it
becomes necessary to re-adjust the rights of other parties.
This might happen when A files a suit claiming a relief in the
alternative against B or C and obtains a decree against B and
not against C and in an appeal for B the court holds that it is
C and not B that is liable. That is the illustration to the rule.
The decisions in -- 'Charubala Dasi v. Nihar Kumari Dasi'
MANU/WB/0204/1926 : AIR1927Cal831 and -- 'Kannuswami
Chetti v. Rabimath Animal', MANU/TN/0117/1932 : AIR 1933
Mad 806 (M) are other instances of the application of this
principle.
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A second class of cases based on the same principle is where
the question is one of settling mutual rights and obligations
between the same parties.
The decision in the -- Attorney General v. Simpson', 1901 2
Ch. 671 (N) is a leading authority falling under this category.
There the plaintiff sued for a declaration that the public were
entitled to use the locks in a river without payment of tolls and
that the defendant was bound to maintain them in good
condition. The trial court held that the public had the right to
use the locks free of charge and that the defendant was not
bound to maintain them. In an appeal preferred by the
defendant the court held that the public were bound to pay
tolls for the use of the locks. It also declared, under Order 58,
Rule 4 of the Rules of the Supreme Court corresponding to
Order 41, Rule 33, Civil P. C., that the appellant was under an
obligation to maintain them in good condition. This principle
has been followed in a number of decisions in the Indian
Courts.
A third class of cases in which this rule has been applied is
when the relief prayed for is single land indivisible but is
claimed against a number of defendants. In such cases, if the
suit is decreed and there is an appeal only by some of the
defendants and if the relief is granted only to the appellants
there is the possibility that there might come into operation at
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the same time and with reference to the same subject-matter
two decrees which are inconsistent and contradictory.
-- "Thirumalachariar v. Athimoola Karayalayar',
MANU/TN/0101/1932 : AIR 1933 Mad 529 (O), relied on by
the respondent is a case of this kind. There, the suit was to
enforce an agreement to convey lands stated to have been
executed by one Nambi Kone. The defendants to the suit were
his widow, and daughter, defendants 1, and 7 and his
reversioners defendants 2 to 6. The suit was contested by the
latter on the ground that the agreement was not genuine. The
Subordinate Judge upheld this contention and dismissed the
suit as against them but as against defendants 1 and 7 there
was an ex parte decree. On appeal by the plaintiff this court
agreed with the Subordinate Judge that the agreement was not
genuine and confirmed the decree as against defendants 2 to
6. This court also vacated the ex parte decree against
defendants 1 and 7 in exercise of the powers under Order 41,
Rule 33 though no appeal had been preferred by them. As the
suit was for specific performance of a particular agreement it
would obviously be inconsistent to direct the execution of it by
some and not by others. If the suit had been decreed against
ail the defendants, and defendants 2 to 6 alone had preferred
an appeal this court could have under the provisions of Order
41, Rule 4 allowed, the appeal in favour of all the defendants
and it is the self-same result that was reached under Order 41,
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Rule 33.
These are well recognised classes of case in which it would be
legitimate to exercise the powers under that rule even though
there was no appeal relating to the subject-matter. This,
however, is not intended to be an exhaustive enumeration of
the classes of cases in which courts could interfere under
Order 41, Rule 33. Such an enumeration would neither be
possible nor even desirable for situations might arise which
cannot be foreseen or predicted in which the court must have
the power to exercise its jurisdiction under that rule. As
observed by Jenkins C. J. in -- 'Gangadhar v. Banabhashi',
MANU/WB/0379/1914 : AIR1914Cal722 (P), "no hard and
fast rule can be laid down". But however extensive this power
may be, one principle can be taken to be well established: it is
that when a party having right to appeal fails to do so, relief
should ordinarily be refused to him under Order 41, Rule 33.
If the matter falls under one or the other of the classes of cases
mentioned above if there are special circumstances, the court
might exercise its power under that rule in the interests of
justice but subject to such exceptions the court will exercise a
sound discretion in refusing to grant relief under that rule to
one who has submitted to the decree. As held by the Privy
Council in -- 'Chokalingam Chetty v. Seethai Ache'
MANU/PR/0167/1927, the right which a decree-holder has
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under a decree when the time for appealing against it has
expired is a valuable one and courts must act with
considerable caution and reserve before depriving him of that
right by invoking the powers under Order 41, Rule 33. Having
regard to these principles the question has to be determined
whether the exercise by the subordinate Judge of the power
under Order 41, Rule 33 is in the instant case proper."
34. It is stated by the learned counsel appearing for the
appellant-insurance company that amount representing 50% of the
appellant's liability is already deposited pursuant to the interim order passed
by this Court. After satisfying the modified award, the appellant-insurance
company is permitted to withdraw any excess amount. It is stated that the
5th respondent deposited its share of the award before the Tribunal and the
same is lying on deposit. In view of the modified award passed by this
Court, the 5th respondent is permitted to withdraw excess amount if any,
available in deposit. In case claimants had already withdrawn any amount
in excess of amount payable by 5th respondent, as per modified award
passed by this Court, the 5th respondent is entitled to initiate appropriate
proceedings, seeking contribution from appellant. Therefore, the benefit of
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the order passed by this Court in reducing the total compensation payable to
the claimant by following percentage basis will enure to the 5 th respondent,
notwithstanding the fact, it has not challenged the portion of the award
passed against it. This order is passed by this Court in exercise of its
power under Order 41 Rule 33 of CPC, in order to avoid conflict of award
passed by this Court and the unchallenged portion of the award against the
5th respondent.
35. With these clarifications, all these appeals are partly
allowed as stated above. Consequently, connected miscellaneous petitions
are closed. No costs.
28.04.2025
Index : Yes/No
Speaking order:Yes/No
Neutral Citation:Yes/No
ub
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To
1.The Motor Accident Claims Tribunal,
II Additional District Judge, Tirupur.
2.The Section Officer
VR Section,
High Court, Madras.
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S.SOUNTHAR, J.
ub CMA.Nos.3201, 3204, 3211, 3221 and 3223 of 2021 36/37 https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/05/2025 03:59:40 pm ) CMA.Nos.3201, 3204, 3211, 3221 and 3223 of 2021 28.04.2025 37/37 https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/05/2025 03:59:40 pm )