Madras High Court
The Branch Manager vs )Kannadasan on 6 August, 2019
Author: V.Bharathidasan
Bench: V. Bharathidasan, J.Nisha Banu
CMA(MD)No.85 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 30.09.2021
Judgment Delivered on : 16.11.2021
CORAM :
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Civil Miscellaneous Appeal(MD)No.85 of 2020
and
CMP(MD)Nos.1464 of 2020 and 3753 of 2021
The Branch Manager,
The New India Assurance Company Pvt Ltd.,
Kumbakonam,
Having Office at No.83, TSR Big Street,
Kumbakonam. ... Appellant
vs.
1)Kannadasan
2)S.Somasundaram ... Respondents
Appeal filed under Section 173 of the Motor Vehicles Act,
1988, against the judgment and award made in MCOP.No.48 of
2014 dated 06th day of August, 2019 on the file of Motor Accidents
Claims Tribunal, Principal Sub Judge, Kumbakonam.
For Appellant : Mr.D.Sivaraman
For R1 : Mr.S.Siva Thilagar
For R2 : No appearance
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https://www.mhc.tn.gov.in/judis
CMA(MD)No.85 of 2020
JUDGMENT
(Judgment of the Court was made by V. BHARATHIDASAN, J.) Challenging the Award passed by the Motor Accident Claims Tribunal, Principal Sub Judge, Kumbakonam in M.C.O.P.No.48 of 2014, the appellant Insurance Company is before this Court with this appeal.
2. For the sake of convenience, the parties are referred to as per the ranking before the Tribunal.
3. The first respondent / claimant filed a claim petition, claiming compensation of Rs.30,00,000/- for the injuries sustained by him.
4. The case of the claimant before the Tribunal, in brief, is that, the claimant was working as a helper in a JCB, Earth Mover. On 21.07.2013, at about 9.00 a.m., while the JCB, bearing Registration No.PY-01-AD-7823, was engaged in excavation work at Uppiliappankoil Kodiarasan Water Channel near Ayyavadi- Sivapuram Keerthiman River bed, the driver of the JCB Earth Mover, driven the the vehicle in a rash and negligent manner, 2/12 https://www.mhc.tn.gov.in/judis CMA(MD)No.85 of 2020 dashed against the claimant, in which, he sustained grievous injuries in his legs. Immediately, he was taken to the Government Hospital, Kumbakonam, where he took first aid and then admitted in Government Hospital, Thanjavur, there he took treatment as inpatient from 21.07.2013 to 23.09.2013 and his left toe was amputated.
5. Alleging that the accident had taken place due to rash and negligent driving of the driver of the 2nd respondent vehicle, claiming compensation, the claim petition has been filed.
6. The owner of the vehicle became ex-parte. The appellant Insurance Company contested the claim petition, stating that the accident has not taken place due to rash and negligent driving of the driver of the vehicle. That apart, the driver of the vehicle does not possess a valid driving licence to drive the JCB. Hence, the Insurance Company is not liable to pay the compensation. The Insurance Company also disputed the monthly income and disability sustained by the claimant.
7. Before the Tribunal, the claimant examined himself as P.W. 1 and his father was examined as P.W.2 and he marked 13 exhibits. 3/12 https://www.mhc.tn.gov.in/judis CMA(MD)No.85 of 2020 The Assistant Manager of the Insurance Company was examined as R.W.1. The Motor Vehicle Inspector was examined as R.W.2. and also marked Ex.R1, copy of the Insurance Policy.
8. The Tribunal, after considering the materials available on record, comes to a conclusion that the accident had taken place due to rash and negligent driving of the driver of JCB.
9. Insofar as the liability, the Tribunal has comes to a conclusion that the Insurance Company failed to prove that the driver of the vehicle did not posses a valid driving licence to drive the heavy vehicle and fixed the liability on the Insurance Company.
10. Sofar as the quantum of compensation, the Medical Board assessed the disability at 70%, however, considering the fact that the claimant has suffered a crush injury in his right leg and his left toe was amputated, fixed the functional disability at 100%. The monthly income of the claimant was fixed at Rs.7000/-, adding 40% of the future prospects, the Tribunal arrived at notional monthly income of the claimant at Rs.9,800/- and applying the multiplier of '18', awarded a sum of Rs.21,16,800/- towards the loss of earning capacity. That apart, the Tribunal has also awarded a sum of Rs. 4/12 https://www.mhc.tn.gov.in/judis CMA(MD)No.85 of 2020 1,00,000/- towards pain and suffering; Rs.25,000/- towards extra nourishment; Rs.10,000/- towards transport charges; Rs.1000/- towards damages to the clothes and Rs.26,000/- towards attendant charges. That apart, a sum of Rs.26,490/- has been awarded towards the medical expenses. Thus, the Tribunal awarded a sum of Rs.24,05,290/- as compensation rounded off to Rs.24,05,300/-
11. Now, challenging the liability and also quantum, the Insurance Company is before this Court with this appeal.
12. We have heard Mr.D.Sivaraman, the learned counsel appearing for the appellant Insurance Company and Mr.S.Siva Thilagar, the learned counsel appearing for the claimant and perused the records carefully.
13. The claimant was working as a helper in a heavy vehicle earth mover. According to him, the driver of the vehicle driven the vehicle in a rash and negligent manner and dashed against the claimant, wherein, his right leg has been crushed, subsequently, his toe has been amputated.
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14. To prove the negligence, the claimant examined himself as P.W.2. That apart, a criminal case was also filed against the driver of the vehicle for negligent driving. No contra evidence has been adduced by the Insurance Company to disprove the same. Considering those circumstances, the Tribunal has come to a conclusion that the accident had taken place due to rash and negligent driving of the driver of the vehicle and we find no illegality in that.
15. Sofar as the liability is concerned, the case of the Insurance Company is that a the time of accident, the driver of the vehicle does not posses heavy vehicle licence to drive the JCB vehicle and he is only having licence to drive the Light Motor Vehicle. However, the Motor Vehicle Inspector has been examined as R.W.2 and he deposed that if the laden weight of the JCB is below 7,500 Kgs, a LMV license is sufficient to drive that vehicle. It is settled law that is the burden is on the Insurance Company to prove that the driver of the vehicle does not posses a valid driving licence at the time of accident. Admittedly, in this case, driving licence was not marked. The concerned RTO was not examined, only the Motor Vehicle Inspector has been examined and he was not in a position to say whether the driver possessed a valid driving 6/12 https://www.mhc.tn.gov.in/judis CMA(MD)No.85 of 2020 licence or not. Considering those circumstances, the Tribunal has rightly fixed the liability on the Insurance Company.
16. Regarding the quantum of compensation, the claimant is suffered a crush injury and his right toe was amputated. He was referred to a Regional Medical Board and the Medical Board assessed the disability at 70%, however, the Tribunal taken it as 100% functional disability and applied the multiplier method. This was seriously disputed by the appellant Insurance Company on the ground that he was only working as a helper, though his toe has been amputated, he is continuing his duties as before and the disability suffered by the claimant cannot be considered as 100%.
17. Permanent disability refers to a residuary incapacity, which likely to remain for the remainder life of the injured person. It may be either permanent or partial. Partial permanent disability refers to the injured inability to perform all of his duties as before the accident, but he is able to perform some of them and is still able to engage in some other gainful activities. The total permanent disability is one that the injured person unable to perform any avocation or employment due to the disability suffered by him in the accident.
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18. While assessing the compensation under the head of permanent disability for loss of future income, it depends upon the effect and impact of such permanent disability and his earning capacity. The percentage of permanent disability need not be equal to the loss of earning capacity. The Tribunal is expected to assess effect of the permanent disability on the earning capacity of the injured person. It has to be quantified in terms of money to arrive at future loss of earning. To ascertain the effect of permanent disability and actual earning capacity of the injured person, the Tribunal has to ascertain the activities of the claimant to carry on inspite of his permanent disability and also ascertain the avocation or nature of work he was engaged in before the accident and also the age of the claimant. Finally, the Tribunal should ascertain whether the claimant is completely disable from engaging any employment or whether inspite of permanent disability, the claimant could effectively carry on some other activities or function and he can continue to earn for his livelihood. (vide Rajkumar Vs. Ajaikumar, reported in, (2011 (1) SCC 343).
19. In the instant case, the claimant was working as a helper in the earth mover and he suffered injury in the right leg and his 8/12 https://www.mhc.tn.gov.in/judis CMA(MD)No.85 of 2020 toe was amputated, The Medical Board assessed the disability of the claimant at 70%. He was 17 years at the time of accident. It is true that he suffered disability, but he has not suffered permanent disability and it is only a partial permanent disability and he was not totally disabled from earning any kind of livelihood, and he can continue to engage in some other activities and continue to earn his livelihood. In such circumstances, the functional disability of the claimant cannot be considered as 100% as decided by the Tribunal. However, considering the fact that the claimant was 17 years old at the time of accident and his toe was amputated, and the Medical Board assessed the disability at 70%, we are of the view that fixing the disability at 70% will be just and proper.
20. Sofar as the monthly income of the claimant is concerned, the Tribunal notionally fixed the daily wages at Rs.350/- and arrived at the monthly income at Rs.9,800/- and it is not excessive, the Tribunal also rightly fixed the multiplier at '18'. In those circumstances, the claimant is entitled to claim compensation towards loss of earning capacity would be Rs.9800 x 12 x 18 x 70% = Rs.14,81,760/-. In respect of other pecuniary losses, the Tribunal has correctly awarded, which are not excessive and the claimant is entitled to receive the same. Thus, the claimant is entitled to get a 9/12 https://www.mhc.tn.gov.in/judis CMA(MD)No.85 of 2020 compensation of Rs.17,69,290/- rounded off to Rs.17,70,000/-. Thus, this Court modifies the Award of the Tribunal, as follows:-
Amount Amount
S.No Award
Description Awarded by Awarded by
. status
Tribunal this Court
1 Loss of earning 21,16,800 14,81,760 Reduced
capacity
2 Pain and suffering 1,00,000 1,00,000 Confirmed
3 Extra nourishment 25,000 25,000 Confirmed
4 Transport to Hospital 10,000 10,000 Confirmed
5 Damages to Clothes 1,000 1,000 Confirmed
6 Attender charges 26,000 26,000 Confirmed
7. Medical expenses 26,490 26,490 Confirmed
8 Loss of Amenities 1,00,000 1,00,000 Confirmed
24,05,290 17,70,250
21. In the result, the Civil Miscellaneous Appeal is partly allowed and the Award passed by the Tribunal is modified and the claimant is entitled to get a compensation of Rs.17,70,250/-, rounded off to Rs.17,71,000/-, along with interest at the rate of 7.5% per annum, from the date of claim petition till the date of realization. The appellant Insurance Company is directed to deposit the modified award amount, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this order. On such deposit is being made, the 10/12 https://www.mhc.tn.gov.in/judis CMA(MD)No.85 of 2020 claimant is permitted to withdraw the entire award amount with accrued interest and costs, by filing necessary application before the Tribunal. If the entire award amount is already deposited, the appellant Insurance Company is permitted to withdraw the excess amount with accrued interest. No costs. Consequently, the connected miscellaneous petitions are closed.
[V.B.D.,J.] & [J.N.B.,J.]
16.11.2021
Index : Yes / No
Internet : Yes / No
MPK
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.
To The Principal Sub Judge, Motor Accidents Claims Tribunal, Kumbakonam.
11/12 https://www.mhc.tn.gov.in/judis CMA(MD)No.85 of 2020 V.BHARATHIDASAN, J.
and J.NISHA BANU, J.
MPK PRE-DELIVERY JUDGMENT MADE IN CMA(MD)No.85 of 2020 DATED : 16.11.2021 12/12 https://www.mhc.tn.gov.in/judis