Madras High Court
Shriram General Insurance Co. Ltd vs Muthu on 23 December, 2020
Author: V.Bharathidasan
Bench: V.Bharathidasan
C.M.A.No.2412 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.12.2020
CORAM
THE HON'BLE MR.JUSTICE V.BHARATHIDASAN
C.M.A.No.2412 of 2019
and
C.M.P.No.11005 of 2019
Shriram General Insurance Co. Ltd.,
1st Floor, First Portion,
No.5-F, Sachin Plaza,
Reddiyur Block No.1,
Salem-636 016. ... Appellant
Vs.
1. Muthu,
S/o. Pachamuthu
residing at South Street,
Rayarpalayam, Veeraganoor Post,
Gangavalli Taluk, Salem District.
2. Kavitha,
D/o. Muthu,
residing at 13/14,
South Mariamman Kovil Street,
Rayarpalayam, Veeraganoor Post,
Gangavalli Taluk, Salem Dt. .. Respondents
https://www.mhc.tn.gov.in/judis/
C.M.A. No.2412 of 2019
PRAYER:- Civil Miscellaneous Appeal preferred under Section 173 of
Motor Vehicles Act against the Order and decree dated 20.12.2017 made in
MCOP No.1007 of 2012 on the file of the Motor Accidents Claims Tribunal
Special Sub-Court No.1, Salem.
For Appellant : Mr. S.Dhakshanamoorthy
For Respondents : Mr.SP. Yuvaraj for R1
R2 – no appearance
JUDGMENT
Feeling aggrieved with the quantum of compensation awarded by the Tribunal, the insurance company is before this Court with this Civil Miscellaneous Appeal.
2. The case of the claimant before the Tribunal in brief as follows:-
The claimant was a driver of the lorry owned by the 1 st respondent, which was insured with the 2nd respondent. On 02.09.2011, at about 02.30 a.m. while the claimant, driver of a lorry bearing Regn. No.TN-30 T-9691, tying tarpaulin in his lorry, another lorry bearing Regn. No.TN-P 7779 owned by the 1st respondent, which was insured with the 2nd respondent, driven by its driver, came in a rash and negligent manner and dashed against the claimant, in which he has sustained injuries in the abdomen and also all 2/12 https://www.mhc.tn.gov.in/judis/ C.M.A. No.2412 of 2019 over the body. Immediately, he was taken to K.M.C. Hospital, Coimbatore, where he has undergone some surgery and he has spent huge amount towards medical expenses. Even after treatment, the claimant is still suffering from the injury sustained in the kidney and pancreas. Hence, claiming a sum of Rs.50 lakhs, the claimant has filed a claim petition before the Tribunal.
3. The 1st respondent/owner of vehicle remained exparte. The 2nd respondent insurance company contested the same on the ground that the accident was taken place due to the negligence of the claimant and the insurance company is not liable to pay compensation. According to them, the compensation claimed by the claimant is highly excessive and speculative.
4. Before the Tribunal, the claimant has examined himself as P.W.1 and marked as many as 19 documents as Ex.P1 to P19. On the side of respondent, no witness was examined and no document was marked. 3/12 https://www.mhc.tn.gov.in/judis/ C.M.A. No.2412 of 2019
5. The Tribunal, considering the materials available on record, has come to a conclusion that the accident has been taken place due to the rash and negligent driving of driver of the 1st respondent. So far as quantum of compensation is concerned, even though no doctor was examined and no disability certificate was marked, the Tribunal, on the basis of medical report, had fixed the disability at 25% of permanent disability and applying the multiplier method, awarded a sum of Rs.4,80,000/- towards future loss of income. In respect of other heads, the Tribunal has awarded a sum of Rs.30,000/- towards pain and sufferings, a sum of Rs.10,000/- towards transport and miscellaneous expenses, a sum of Rs2,79,099/- towards medical expenses, a sum of Rs.30,000/- towards nourishment expenses, and a sum of Rs.50,000/- towards disability. Thus, totally, the Tribunal has awarded a sum of Rs.8,79,099/- as compensation. Aggrieved over the quantum of compensation awarded by the Tribunal, the insurance company is before this court by filing this C.M.A. 4/12 https://www.mhc.tn.gov.in/judis/ C.M.A. No.2412 of 2019
6. Mr.M.Dakshanamoorthy, learned counsel appearing for appellant insurance company would vehemently contend that for assessing the disability, the claimant did not come forward to examine any doctor and he has also not subjected himself for medical examination. He has filed only a discharge summary and scan report before the Tribunal. Even though the Tribunal is not an expert in the filed, on its own, assessed the disability at 25% permanent disability, and applied the multiplier method, the Tribunal has awarded huge amount of Rs.4,80,000/-. According to the learned counsel, the claimant has only suffered partial permanent disability and there is no loss of future earning. Hence, the Tribunal ought not to have applied the multiplier method and awarded huge compensation for simple injury sustained by him. The learned counsel would further submit that on perusal of discharge summary produced by the claimant, it could be seen that he has only undergone a small surgery for the ailment in Pancreas and Kidney, for that, the disability cannot be considered as a permanent disability.
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7. Per contra, Mr.SP. Yuvaraj, learned counsel appearing for 1st respondent/claimant would contend that the claimant was working as a lorry driver and he has suffered a serious injury in the kidney as well as pancreas. Due to which, he was admitted in the hospital for more than a month and undergone a surgery and also spent huge amount towards medical expenses. That apart, even after treatment, the claimant did not recover from the impact of surgery. His abdomen has been ruptured and he is still taking treatment, he is not continuing his avocation as driver. The Tribunal, after looking the tenor of the witness and difficulty suffered by him, had fixed the disability at 25% permanent disability, and applied the multiplier method. Hence, it cannot be found fault in it. In respect of other heads, the Tribunal has awarded reasonable amount. Hence, there is no reason to interfere in it.
8. I have considered rival submissions made by learned counsel appearing for appellant as well as learned counsel appearing for respondents and perused the records.
6/12 https://www.mhc.tn.gov.in/judis/ C.M.A. No.2412 of 2019
9. Admittedly, the claimant did not examine any doctor to establish the disability suffered by him. However, perusal of the discharge summary, which was marked as Ex.P11, and the wound certificate, which was marked as Ex.P5, it could be seen that the claimant have suffered the following injury :-
Wound certificate - Ex.P5 :-
1) Undisplaced fracture is posterior of right 10th rib and microaseleitatis in posterior sesneros of bilateral lower lobes. (multiple CT scar chest)
2) complete auasculatisation of right kidney with occlusion of right main renal artery at the level of its origin and a poorly define contusion in neck and proximal body of pancreas with suscecting of disruption of main pancratic duct at the side of contusion. Ill-defined contusion in mid transuene colon.” He was admitted in a private hospital and undergone a surgery. From the discharge summary issued by the K.M.C. Hospital, Coimbatore, which was marked as Ex.P10, it could be seen that the claimant has taken the treatment for the following injury :-
“1. Blunt injury abdomen 7/12 https://www.mhc.tn.gov.in/judis/ C.M.A. No.2412 of 2019
2. Large Pseudocyst of pancreas
3. Contusion in neck and body of pancreas with duct disruption
4. right renal injury
5. Right 10th rib fracture” From the discharge summary, it could be seen that the claimant was admitted on 28.04.2012 and discharged on 05.05.2012. Since the claimant was not recovered from the earlier treatment, once again, he was admitted in the hospital on 13.05.2012 and he had undergone another surgery and he was discharged on 04.06.2012. From the discharge summary, which was marked as Ex.P11, it could be seen that he was diagnosed for the following injury :-
“1. Infected pancreatic pseudocyst
2. Known patient of traumatic pancreatic pseudocyst
3. History of blunt injury abdomen – 1 month back
4. Right renal injury.
5. Right 10th rib fracture
6. Wound infection”
10. From the materials available on record, it could be seen that the claimant has suffered injury in both kidney and pancreas and he was 8/12 https://www.mhc.tn.gov.in/judis/ C.M.A. No.2412 of 2019 admitted in the hospital for a longer period. The Tribunal, after considering the photos, which was marked as Ex.P13, has stated that his abdomen has been bulged like bag. In the said circumstances, the Tribunal had fixed the disability as 25% permanent disability. However, considering those medical report and the evidence of P.W.1, the Tribunal ought not to have fixed the permanent disability at 25% and award huge amount of Rs.4,80,000/- towards future loss of income. Considering all the available materials, it could be seen that the claimant has sustained serious injury, this Court is of the view to fix the disability at 15%, would be just and proper, and the claimant is entitled for a sum of Rs.2,88,000/- towards future loss of future income (Rs.1,20,000/- x 16 x 15% = Rs.2,88,000/-), which is rounded to Rs.2,90,000/-. Considering the fact that the claimant has undergone the surgery and he was admitted in the hospital for a longer period, a sum of Rs.50,000/- is awarded towards pain and sufferings instead of Rs.30,000/- awarded by the Tribunal. In respect of other heads, the Tribunal has awarded just and fair compensation and there is no reason to interfere with it. In the said circumstances, the award passed by the Tribunal is modified as follows :-
9/12
https://www.mhc.tn.gov.in/judis/ C.M.A. No.2412 of 2019 Sl. Headings Amount Amount Award No. Awarded by awarded by confirme the this Court d or Tribunal enhanced Rs.
1 Loss of income 4,80,000 2,88,000 reduced
2 Pain and sufferings 30,000 50,000 enhanced
3 Transportation and 10,000 10,000 confirmed
other miscellaneous
expenses
4 Medical expenses 2,79,099 2,79,099 confirmed
5 Extra nourishment 30,000 30,000 confirmed
6. Loss of estate 50,000 50,000 confirmed
Total 8,79,099 7,07,099 reduced
(rounded to
7,10,000)
Thus, the claimant is entitled to get only a sum of Rs.7,10,000/- as compensation instead of Rs.8,79,099/- as awarded by the Tribunal.
11. In the result, the Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.8,79,099/- is hereby reduced to Rs.7,10,000/- together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit. The appellant / insurance company is directed to deposit the award amount now determined 10/12 https://www.mhc.tn.gov.in/judis/ C.M.A. No.2412 of 2019 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 to the credit of M.C.O.P.No.1007 of 2012, on the file of the Motor Accident Claims Tribunal, Special Sub-Court No.1, Salem. On such deposit, the 1st respondent/claimant is permitted to withdraw the award amount now determined by this Court, along with interest and costs, less the amount, if any, already withdrawn by making necessary applications before the Tribunal. The 1st respondent/claimant is entitled to refund of Court fee, in any, on the reduced amount of compensation now determined by this Court. No costs. Consequently, the connected civil miscellaneous petition is closed.
23.12.2020 rpp To The Motor Accidents Claims Tribunal, Special Sub-Court No.1, Salem.
11/12 https://www.mhc.tn.gov.in/judis/ C.M.A. No.2412 of 2019 V. BHARATHIDASAN, J., rpp C.M.A.No.2412 of 2019 and C.M.P. No.11005 of 2019 23.12.2020 12/12 https://www.mhc.tn.gov.in/judis/