Bharathi Axa General v. A.S. Barkath
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR C.M.A.NO.2667 OF 2013 AND M.P.NO.1 OF 2013 Bharti AXA General Insurance Co. Ltd., Represented by its Manager, 1st Floor, The Ferns Icon, Survey No.28, Next to Akme Ballet, SDOddanekundi Off Outer Ring Road, Bangalore - 560 037.
... Appellant/2nd Respondent .Vs.
1. A.S.Barkath
2. Roy Antony ... Respondents/ Petitioner & 1st Respondent PRAYER:- This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the decree and judgment dated 19.10.2012 passed in M.C.O.P.No.883 of 2009 by the Principal Subordinate Judge, Motor Accident Claims Tribunal, Krishnagiri.
For Appellant :
Mr.K.Poomalai For Respondents :
Mr.S.Sankaralingam For Mr.V.Velusamy for R1 Notice served to R2
J U D G M E N T
The appellant/Insurance Company has filed the instant appeal before this Court on the ground of quantum alone.
2. The respondents are the claimants, who have filed a claim petition separately before the Tribunal in MCOP No.857 & 883 of 2009 and a common order was passed. Challenging the said order, the present appeal has been preferred by the appellant/Insurance company. The claimant/first respondent has filed a claim
petition in MCOP No.883 of 2009 before the Tribunal seeking compensation of Rs.8,00,000/- for the injuries sustained by her in a road accident that took place on 08.08.2009.
3. The brief case of the claimants is as follows: On 08.08.2009, at about 8.00 p.m, the claimants, who are husband and wife were proceeding in a Bajaj Goods type Auto bearing Registration No.TN29-C5249 and while nearing Krishnagiri to Salem Main Road towards Salem, at the end of Krishnagiri Milk Dairy Fly Over Bridge, a Maruthi Swift LDI Car bearing Registration No.KA 04-MG-1490, was driven by its driver in a rash and negligent manner and dashed behind the said Goods Type Auto and thereby, the 1st respondent sustained grievous injuries and immediately, they were admitted to Government Headquarters Hospital, Krishnagiri and thereafter, referred to SPARSDH Hospital, Bangalore. According to the claimants, the rash and negligent driving of the driver of the lorry was the cause of accident and since the first respondent/owner of the vehicle insured his lorry with the second respondent/insurance company, both of them are liable to pay compensation.
4. The claim petition was resisted by the appellant/ insurance company by filing counter affidavit.
5. Before Tribunal, two claim petitions were filed in MCOP No.857 of 2009 and MCOP No.883 of 2009 and in both the cases, four witnesses were examined as PW1 to PW4 and Ex.A1 to Ex.P17 were marked. On the side of the respondents, no oral and documentary evidence was adduced. In so far as the case in hand namely MCOP No.883 of 2009 is concerned, the first respondent/ claimant was examined as PW2.
6. After analysing the evidence on record, the Tribunal has awarded a sum of Rs.8,00,000/- to the 1st respondent/claimant in MCOP No.883 of 2009. The compensation awarded under various heads are extracted hereunder.
Sl Amount in Rs.
Loss of earning power/capacity (4,500 x 12 x 16 x 80%) 6,91,200 Pain & suffering, transport, attender's charges & nutrition 11,050 Medical Bills 97,750 Total 8,00,000 Aggrieved over the same, the Insurance Company has filed the present appeal.
7. Heard the learned counsel for the appellant/insurance company and the learned counsel for the first respondent and I have perused the materials on record.
8. The learned counsel appearing for the appellant/ Insurance company submitted that there is no dispute that the claimant is entitled for the compensation amount as assessed by the Tribunal. The dispute is only with regard to the multiplier method for the disability sustained by the 1st respondent/ claimant. The Tribunal has given a finding that the claimant was suffered 80% disability and in the absence of evidence regarding whole body disability and functional disability, the alleged percentage of disability of particular limb cannot be taken as the percentage of disability.
9. The learned counsel appearing for the first respondent/ submitted that after analysing the evidence on record and the report of the doctor, the Tribunal has rightly assessed the disability at 80% and the award passed by the Tribunal is just and reasonable and the same does not warrant any interference by this court.
10. Now the point for consideration is
1) Whether the Award passed by the Tribunal is an excessive?
11. Point The second respondent/claimant in MCOP No.857 of 2009, was suffered 35% disability and based on the evidence and the report of the doctor, the Tribunal has assessed the disability at 35% and awarded a sum of Rs.1,26,000/- as compensation. Insofar as the 1st respondent/claimant in MCOP No.883 of 2009 is concerned, she suffered 80% disability and the Tribunal has assessed the disability at 80% and awarded Rs.8,00,000/- as compensation. In both the cases, the Tribunal had relied on the evidence of doctors who were examined as PW3 & PW4. According to the appellant, there is no dispute that the first respondent/ claimant is entitled for the compensation amount as assessed by the Tribunal. The dispute is only with regard to the multiplier method for the disability sustained by the first respondent/ claimant.
Insofar as the second respondent is concerned, no serious dispute has been raised with regard to award of compensation by the Tribunal. Now, the dispute is with regard to the MCOP No.883 of 2009, wherein the Tribunal has fixed the compensation by adopting the multiplier method for the disability of 80% sustained by the first respondent/claimant.
case of Sarla Varma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121.
12. The learned counsel for the first respondent submitted that the first respondent/claimant was suffered 15% disability due to the injury caused on her face and 65% disability caused on the forearm in both the right and left hands and her movements were reduced and hence, she cannot lift weight by her right hand and her left fore arm fractured and malunited by 2 degree and so she cannot life weight by her left hand, cannot do minute works. Therefore, both the right and left hands were not able to use for normal work and 65% disability was assessed. Therefore, the Tribunal has rightly adopted the multiplier method for the injuries sustained by the first respondent/ claimant.
13. On a perusal of evidence, it is clear that the first respondent/claimant has lost her employment and she could not able to lift weight by using both the forearm of right and left hand, There is no rebutable evidence placed before this Court to disclaim 65% of the disability. Therefore, the multiplier method adopted by the Tribunal is fair and reasonable one. In the light of the judgement of the Hon'ble Supreme Court in the case of Sarla Varma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, 15 multiplier would be adopted instead of 16 multiplier. Therefore, the award passed by the Tribunal is modified to that extent only. Further, the Tribunal has awarded consolidate compensation towards "pain and suffering, transport, attender's charges, extra nourishment", totally for a sum of Rs.11,050/-.
But, this Court is of the view that it is appropriate to award compensation separately for the above said heads. Therefore, the first respondent/claimant is entitled to Rs.10,000/- towards pain and suffering, Rs.5,000/- towards transport, Rs.10,000/- towards attender's charges and also Rs.5,000/- extra nourishment respectively. Accordingly, the revised compensation awarded under the various heads is extracted hereunder.
Sl.
Compensation Awarded by the Tribunal Compensation enhanced/ Awarded by this court Loss of earning power/capacity 6,91,000 (4,500 x 12 x 16 x 80%) 6,48,000/- (4500 x 12 x 80/100% x 15) Pain & Suffering, transport, attenders and nutrition 11,050 -
Sl.
Compensation Awarded by the Tribunal Compensation enhanced/ Awarded by this court Pain & Suffering -- 10,000 Transport -- 5,000 Attender's charges -- 10,000 Extra Nourishment -- 5,000 Medical Bills 97,750 97,750 Total 8,00,000 7,75,750 Accordingly, the first respondent/claimant is entitled to a compensation of Rs.7,75,750/- along with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit. .
14. In the result, (i) The Civil Miscellaneous Appeal is partly allowed and the award passed by the Tribunal is scale down from Rs.8,00,000/- to Rs.7,75,750/-.
costs.
Connected miscellaneous petition is closed.
(ii) The appellant/insurance company is directed to deposit the compensation of Rs.7,75,750/- with interest at the rate of 7.5.% p.a. from the date of claim petition till the date of deposit, less the amount if already deposited, within a period of six (6) months from the date of receipt of a copy of this order.
(iii) On such deposit being made by the insurance company, the first respondent/claimant is entitled to withdraw the same, after following due process of law.
Sd/- Assistant Registrar(CS II) //True Copy// Sub Assistant Registrar uma
To The Motor Accident Claims Tribunal, The Principal Subordinate Judge, Krishnagiri.
Copy To:
The Section Officer, V.R. Section, Madras High Court, Chennai - 104.
+1cc to Mr.K.Poomalai, Advocate, S.R.No.16879 +2ccs to Mr.V.Velusamy, Advocate, S.R.No.16877 C.M.A.NO.2667 OF 2013 AND M.P.NO.1 OF 2013 PA(CO) PBS/04/10/2021