Dismissed

United India Insurance v. Sivakumar

Madras HC22 Jul 2013CMA/2837/2009

Case brief

AI extract

What is this about?

This court set aside the Tribunal's use of the multiplier method for disability compensation in a motor accident case and restructured the award heads, ultimately dismissing the insurance company's appeal and confirming the quantum.

What did the court decide?

Appeal dismissed; Order and decree of the Tribunal confirmed with restructured heads of compensation totaling Rs.2,14,000/- and interest.

United India Insurance Vs Sivakumar — Motor Accident Claims | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 22.07.2013

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CORAM

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THE HONOURABLE MR.JUSTICE C.S.KARNAN

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C.M.A.No.2837 of 2009 & M.P.No.1 of 2009

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United India Insurance Company Limited, Ranipet. ... Appellant/2nd Respondent Vs. 1.Sivakumar 2.E.T.Venugopal ... Respondents/Petitioner and 1st Respondent PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the award and decree dated 30.01.2004 made in M.C.O.P.No.226 of 2001, on the file of the Motor Accidents Claims Tribunal, Sub-Judge, Cheyyar.

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For Appellant : Mr.S.Arunkumar For Respondents : Mr.K.G.Senthil Kumar for R-2 R-1 Not ready notice 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 passed in M.C.O.P.No.226 of 2001, on the file of the Motor Accidents Claims Tribunal, Sub-Judge, Cheyyar.

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The short facts of the case are as follows:-

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The petitioner has filed the claim in M.C.O.P.No.226 of 2001, claiming compensation of a sum of Rs.3,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 11.03.2000, at about 11.30 p.m., when the petitioner was proceeding on his hero honda motorcycle bearing registration No.TN-25-Y-4066, on the Cheyyar-Vandavasi Main Road, near Keelamanthai Village, the first respondent's tractor bearing registration No.TN-25-2367 and tailer bearing registration No.TN-25-3378, driven in a rash and negligent manner, dashed against the motorcycle. As a result, the petitioner sustained injuries and was admitted at Cheyyar Government Hospital initially and subsequently admitted at Chinglepet Government Medical College Hospital. Due to disability sustained in the accident, the https://hcservices.ecourts.gov.in/hcservices/ petitioner is not able to do his work as before. Hence, the

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petitioner has filed the claim against the respondents 1 and 2, who are the owner and insurer of the tractor and trailer.

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The second respondent in his counter, which was adopted by the first respondent has submitted that the petitioner has to prove that the tractor and trailer involved in the accident was insured with this respondent at the time of accident and also prove that the driver of the tractor and trailer had a valid driving licence to drive it. The averments in the claim regarding age, income, occupation of petitioner, nature of injuries sustained, medical treatment etc, medical expenses and disability was also not admitted. It was submitted that the accident was caused only due to the rash and negligent riding of the motorcycle, by the petitioner. It was submitted that the claim was excessive.

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The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz.,

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"(i) Was the accident caused by the rash and negligent driving by the driver of the first respondent's tractor and trailer?

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(ii) Are the respondents liable to pay compensation to the petitioner? If so, what is the quantum?"

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On the petitioner's side, three witnesses were examined and 7 documents were marked as Exs.P1 to P7, viz., Ex.P1copy of F.I.R., Ex.P2-copy of accident register, Ex.P3-discharge summary, Ex.P4-medical certificate issued at Chinglepet Government Hospital, Ex.P5-copy of Motor Vehicle Inspector's Report, Ex.P6copy of criminal Court judgment, Ex.P7-disability certificate. On the respondent's side, one witness was examined and two documents were marked as Exs.R1 and R2, viz., Ex.R1-policy and Ex.R2investigation report.

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P.W.1, the petitioner had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence, he had marked Exs.P1 to P7. P.W.2, Balan, the pillion rider of the motorcycle and eyewitness of the accident had also adduced evidence that the accident had been caused by the rash and negligent driving by the driver of the first respondent's tractor and trailer.

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The Tribunal, on scrutiny of Exs.P1 and P6 observed that the F.I.R. had been registered against the first respondent's vehicle driver and that the driver of the tractor and trailer had admitted his guilt and paid the fine before the criminal Court. Hence, the Tribunal, on scrutiny of evidence of P.W.1 and P.W.2 and Exs.P1 P5 and P6, held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's tractor and trailer.

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R.W.1, Dakshinamoorthi had adduced evidence that the first respondent's tractor and trailer had been insured with the second respondent and that the driver of the tractor had a valid https://hcservices.ecourts.gov.in/hcservices/ driving licence to drive it at the time of accident and in support

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of his evidence, he had marked Exs.R1 and R2. Hence, the Tribunal, on scrutiny of Exs.R1 and R2, held the respondents 1 and 2 jointly or severally liable to pay compensation to the petitioner.

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P.W.3, doctor had adduced evidence that due to the accident, the petitioner had sustained fracture of bone in his right thigh and that the fractured bone had mal-united. He deposed that the movements of the petitioner's right knee had been restricted and he walks with a limp. He further deposed that the petitioner is not able to squat or sit cross legged or do any hard manual work. He further deposed that as puss had formed in the fractured area, the petitioner requires further treatment and certified that the petitioner had sustained 40% disability and in support of his evidence, he had marked Ex.P7.

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The Tribunal, on observing that the age of the petitioner was 25 years and on taking the notional income of the petitioner as Rs.2,500/- per month, adopted a multiplier of '17' and awarded a sum of Rs.2,04,000/- as compensation for loss of earning due to disability (2500 x 12 x 17 x 40/100); Rs.5,000/- was awarded for pain and suffering; Rs.5,000/- was awarded for loss of income during medical treatment and convalescence period. In total, the Tribunal awarded a sum of Rs.2,14,000/- as compensation to the petitioner and directed the respondents to jointly or severally pay the said sum together with interest at the rate of 9% per annum from the date of filing the claim till date of payment of compensation, with costs, within two months from the date of its order.

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Aggrieved by the award passed by the Tribunal, the second respondent / United India Insurance Company Limited, Ranipet has preferred the present appeal.

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The learned counsel for the appellant has contended in his appeal that the Tribunal erred in placing reliance on the exaggerated assessment of P.W.3, doctor to assess 40% disability and grant a sum of Rs.2,04,000/- for loss of earning power and failed to note that the assessment of P.W.3 is not in accordance to the judgment reported in 1998(8) SUPREME 401 and 2003 1 LW (81). It was contended that the Tribunal erred in assuming the income of the first respondent / claimant at Rs.30,000/- per annum without any basis and failed to note that the first respondent had neither proved his avocation nor his income, warranting to award a sum of Rs.2,04,000/-. It was contended that the multiplier method adopted for assessment for loss of earning was erroneous as the claim was filed under Section 161 of Motor Vehicles Act. It was contended that the award passed was excessive and hence, it was prayed to set-aside the award passed by the Tribunal.

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13.The very competent counsel, Mr.K.G.Senthilkumar, appearing for the claimant submits that the accident had been committed by the driver of the tractor and hence, criminal case has been filed against him. In the said accident, the claimant had https://hcservices.ecourts.gov.in/hcservices/ sustained multiple bone fracture injuries and the doctor had

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assessed the disability at 40%. The claimant's right leg mobility had been restricted and he walks with a limp. After the accident, he is unable to do his avocation as a coolie. The Tribunal had not granted an adequate compensation under the relevant heads.

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On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order 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 had adopted multiplier method and assessed the compensation under the head of disability, which is not proper. Hence, this Court restructures the compensation as follows:-

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Rs.80,000/- is awarded for disability; Rs.15,000/- for pain and suffering; Rs.10,000/- towards transport; Rs.10,000/towards nutrition; Rs.10,000/- for attender charges; Rs.10,000/towards medical expenses; Rs.14,000/- towards loss of earning during medical treatment period and Rs.65,000/- towards loss of amenities and loss of comfort, since the claimant's right leg had been restricted and he walks with a limp. As such, the quantum of compensation awarded by the Tribunal is confirmed. The rate of interest is admissible and remains unaltered.

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As per Court records, it is seen that the entire compensation amount with interest had been deposited. Now, it is open to the claimant to withdraw the entire compensation amount, with added interest thereon, lying in the credit of M.C.O.P.No.226 of 2001, on the file of the Motor Accidents Claims Tribunal, SubJudge, Cheyyar, after filing a Memo, along with a copy of this order.

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In the result, the above appeal is dismissed. Consequently, the order and decree passed in M.C.O.P.No.226 of 2001, on the file of the Motor Accidents Claims Tribunal, SubJudge, Cheyyar, dated 30.01.2004 is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed.

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Sd/-

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Assistant Registrar(CS-IV) Dated: 20.06.2014

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//True Copy//

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Sub Assistant Registrar

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The Sub-Judge, Motor Accidents Claims Tribunal, Cheyyar.

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1 CC to Mr.K.G.Senthil Kumar, Advocate SR.No.37771 1 CC to Mr.S.Arunkumar, Advocate SR.No.37957

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C.M.A.No.2837 of 2009 & M.P.No.1 of 2009

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NG(CO)

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https://hcservices.ecourts.gov.in/hcservices/ JJM (23.06.2014)

United India Insurance v. Sivakumar

Case brief

What is this about?

What did the court decide?

United India Insurance v. Sivakumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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