Allowed

The United India Insurance v. C.Sakthivel

Madras HC18 Sept 2013CMA/1727/2008

Case brief

AI extract

What is this about?

The High Court allowed the quantum of compensation of Rs.1,20,000 awarded by the Motor Accident Claims Tribunal against United India Insurance Co. The court rejected the appellant’s contention regarding the use of the multiplier method, restructured the compensation into specific heads totaling the same amount, and dismissed the appeal.

What did the court decide?

Appeal dismissed; compensation of Rs.1,20,000 with 7.5% interest confirmed and directed to be paid to the Tribunal's file.

The United India Insurance Vs C.Sakthivel — Motor Accident Claims | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 18.09.2013

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CORAM

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THE HONOURABLE MR.JUSTICE C.S.KARNAN

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C.M.A.No.1727 of 2008 and mp.no.1/2008

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United India Insurance Co., Ltd., Branch Office-I, Junction Main Road Five Roads, Salem-636 004 ... Appellant/2^nd Respondent

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Vs. 1.C.Sakthivel ... 1^st Respondent/Petitioner 2.Sivakumar ...^2nd Respondent/1^st Respondent (R2 ex parte before Lower Court and hence notice dispensed with)

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PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the award and decree dated 31.01.2006, made in M.C.O.P.No.1553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Special Court, Salem.

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For Appellant : Mr.N.V.Vijayaraghavan For Respondents : Mr.K.Kuppuswamy for R1 R2-Ex parte

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J U D G M E N T

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The appellant / second respondent has preferred the present appeal against the judgment and decree dated 31.01.2006, made in M.C.O.P.No.1553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Special Court, Salem.

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The short facts of the case are as follows:-

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On 01.05.2002, at about 03.00 p.m., the claimant was proceeding on a TVS50 Motorcycle bearing registration No.TN27 Q3147, as a pillion rider, on Kallakurichi Main Road. When he was nearing Thiyagaduragam Abrami Theatre, a Three-Wheeler pick up van, bearing registration No.TN30 TCB1360, which was coming in the opposite direction and driven by it's driver in a negligent manner, had dashed against the claimant. As a result, the claimant had

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sustained injuries. Hence, he had filed a claim petition in M.C.O.P.No.1553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Special Court, Salem, against the insurer and driver of the vehicle, claiming a sum of Rs.3,00,000/as compensation.

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The second respondent Insurance Company had filed a counter statement and resisted the claim petition. The second respondent had stated that the driver of the pickup van had not committed the said accident and that the accident had occurred only due to the rash and negligent driving of the motorcyclist and as such the entire negligence is on the rider of the motorcycle. The averments made in the claim petition regarding age, income, occupation, nature of injuries and mode of treatment were not admitted. In the instant case, the owner and the insurer of the TVS50 Motorcycle bearing registration No.TN27 Q3147 are necessary parties. But, they had not been impleaded as necessary parties.

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On considering the averments of both sides, the Tribunal had framed two issues namely:

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i. Whether the respondents are liable to pay compensation to the claimant? and

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ii. Whether the claimant is entitled to get compensation? If so, what is the quantum of compensation?

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On the claimant's side two witnesses were examined as P.Ws.1 and 2 and nine documents were marked as Exs.P1 to P9 namely FIR, medical reports, M.V.I's reports, charge sheet, Judgment copy of the Criminal Court, X'ray and disability certificate. On the respondents' side no witness was examined and one document was marked as Ex.R1 namely accident enquiry report.

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P.W.1 had adduced evidence that on 01.05.2002, at about 03.00 p.m., he was proceeding in a TVS50 Motorcycle bearing registration No.TN27 Q3147, as a pillion rider, on Kallakurichi Main Road. When he was nearing Thiyagaduragam Abrami Theatre, a Three-Wheeler pick up van, bearing registration No.TN30 TCB1360, which was coming in the opposite direction and driven by it's driver in a negligent manner, had dashed against him and he sustained injuries. Further, he had adduced evidence that he had undergone treatment at Government Hospital, Kallakurichi. He had sustained bone fracture injuries on his right leg. Further, he underwent treatment at Government Hospital, Salem, wherein he had been hospitalized as inpatient for 2 1/2 months and a surgical operation was conducted on his right leg and a steel plate with screws were fixed in the operated portion.

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P.W.2 Doctor had adduced evidence that the bones of the claimant's right leg, right thigh had been fractured in several areas and the sensitiveness in the injured areas had been lost. Further, he deposed that the movements of right leg had been restricted and he had certified that the claimant had sustained disability of 55%.

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On considering the evidences of the witnesses and on scrutinizing the exhibits marked by them, the Tribunal had awarded a sum of Rs.1,20,000/- with interest at the rate of 7.5% per annum, as compensation to the claimant.

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Against the said Award, the Insurance Company has preferred the present civil miscellaneous appeal.

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The learned counsel appearing for the appellant Insurance Company has argued that there is no prima facie case on the side of the claimant to show that the first respondent's vehicle had dashed against the claimant, who was travelling as a pillion rider. There is no discussion regarding the rider of the Motorcycle to show whether he had also sustained injuries in the accident.

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Further, the very competent counsel has argued that the Tribunal's award amount of Rs.1,20,000/- is erroneous as they had adopted multiplier method, which is not pertinent in the instant case. The Doctor had assessed the disability at 55%, which is on the higher side, since the claimant had sustained simple injuries. There is no medical records to show that he had undergone treatment for a period of 2 1/2 months as inpatient at Salem Government Hospital. Further, in the said accident, the owner and insurer of the motorcycle are necessary parties and they had not been impleaded as parties, which is bad as the rider of the motorcycle had also been negligent in the occurrence of the accident.

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The highly competent counsel for the claimant has vehemently argued that FIR had been registered against the driver of the first respondent's vehicle and he had been punished by the Criminal Court. The first respondent's vehicle had been insured with the second respondent Insurance Company and therefore the negligence and liability have been proved through oral and documentary evidence. Regarding the quantum of compensation, the claimant's right leg had been fractured into several pieces and his right leg joint had also been damaged and a surgical operation had been conducted in the right leg of the claimant and a steel plate was fixed in the operated area.

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Further, the learned counsel has argued that the claimant was aged about 24 years at the time of accident and he was doing business besides being involved in agricultural operations. The Doctor had assessed the disability at 55% after well scrutinizing

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the medical records. Due to multiple bone fracture injuries, the claimant had been hospitalized for a period of 2 1/2 months. Therefore, the quantum of compensation is not on the higher side.

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On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. However, the Tribunal adopted multiplier method and granted a compensation of Rs.1,20,000/-, which is not appropriate. Therefore, this Court restructures the compensation as follows:

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i. Rs.55,000/- is awarded under the head of disability,

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ii. Rs.15,000/- is awarded under the head of pain and suffering,

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iii. Rs.5,000/- is awarded under the head of transport expenses,

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iv. Rs.5,000/- is awarded under the head of nutrition,

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v. Rs.5,000/- is awarded under the head of attender charges,

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vi. Rs.5,000/- is awarded under the head of loss of earning during the medical treatment and convalescence period,

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vii. Rs.10,000/- is awarded under the head of medical expenses and

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viii. Rs.20,000/- is awarded under the head of loss of amenities and loss of comfort.

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As such, the quantum of compensation awarded by the Tribunal is confirmed. The rate of interest fixed by the Tribunal at 7.5% per annum remains unaltered.

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This Court directs the appellant Insurance Company to execute the award with accrued interest, by way of depositing the award amount to the credit of M.C.O.P.No.1553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District-cumSpecial Court, Salem, within a period of four weeks from the date of receipt of a copy of this Order.

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After such a deposit having been made, it is open to the claimant to withdraw the compensation amount, with accrued interest, lying in the credit of M.C.O.P.No.1553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional Districtcum-Special Court, Salem, after filing a memo along with a copy of this Order.

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In the result, this civil miscellaneous appeal is dismissed and the Judgment and decree dated 31.01.2006, made in M.C.O.P.No.1553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District-cum-Special Court, Salem, are confirmed. Consequently, connected miscellaneous petition is closed. There is no order as to costs.

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Sd/Assistant Registrar

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/TRUE COPY/

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Sub Assistant Registrar
krk
To:
1.The Additional District-cum-Special Judge
Motor Accident Claims Tribunal
Salem
2.The Section Officer
V.R.Section, High Court
Madras
+ 1 C.C. TO MR.M.B.Gopalan Advocate Sr.49613
C.M.A.No.1727 of 2008
MP[CO]
KS 26/11/2013

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The United India Insurance v. C.Sakthivel

Case brief

What is this about?

What did the court decide?

The United India Insurance v. C.Sakthivel

Case brief

What is this about?

What did the court decide?

What the court decided

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