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Madras High CourtCMA/9/2016partly allowed

T. Lakshmi v. Shivashankaran V. (Owner Of

2018-06-29Honourable Mr Justice S. Baskaran6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.06.2018

CORAM:

THE HONOURABLE MR.JUSTICE S.BASKARAN C.M.A.No.9 of 2016 T.Lakshmi ..Appellant/Petitioner -Vs1.Shivashankaran 2.ICICI Lombard General Insurance Company Ltd., First Floor, Arihant Plaza No.84/85, Walltax Road, Chennai-3 3.Mahendra World City Developers Ltd.

No.17/18, Pattulos Road Anna Salai, Chennai (R1 and R3 Remained exparte before the Tribunal) 4.National Insurance Co.Ltd., No.37, Pantheon Road Near Hotel Ashoka Egmore, Chennai-8.

..Respondents Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, against the order and decree dated 06.08.2014 made in M.C.O.P.No.876 of 2010 on the file of Motor Accident Claims Tribunal, II Court of Small Causes, Chennai.

For appellant : : M/s.M.Malar For Respondents : : Ms.R.Srividhya for R2 M/s.N.B.Surekha for R4 R1 and R3-Remained Exparte before the Tribunal.

J U D G M E N T

The Appellant/Claimant has filed this appeal, challenging the award dated 06.08.2014 made in M.C.O.P.No.876 of 2010 on the file of Motor Accident Claims Tribunal, II Court of Small Causes, Chennai.

2. For convenience sake, the parties are referred to hereunder according to their litigative status before the Tribunal. It is a case of injury. The case of the Petitioner is that on 11.12.2009 at about 9.45 hours, while the Petitioner was proceeding as a pillion rider in a Motor cycle bearing Reg.No.TN-21-AV-1560 in the GST Road, at Maramalai Nagar, the 1st respondent car bearing Reg.No.TN01-AF-8274 driven at high speed, dashed against the Petitioner causing her multiple injuries all over her body. At the same time, an auto bearing Reg.No.TN-20-AA 3299 came at high speed, dashed behind the car, which also caused injuries to the Petitioner. The said auto belongs to the 1st respondent and insured with the 2nd respondent. The car belongs to the 3rd respondent and insured with the 4th respondent. The Petitioner was aged 32 years and she was employed in Ford Company in House Keeping Department, earning Rs.6000/- per month. Due to the injuries suffered, she is unable to attend to her family work. Thus, the Petitioner sought for a sum of Rs.18,00,000/- as compensation from the respondents.

3. On the other hand, opposing the claim of the Petitioner, by filing counter, the 2nd respondent-Insurance company contends that the accident does not occur in the manner alleged by the Petitioner. The auto bearing Reg.No.TN-20-AJ-3299 was not involved in the accident. The accident took place only due to rash and negligent driving by the rider of the motor cycle bearing Reg.No.TN-20-AV1560, in which, the Petitioner travelled as pillion rider. The non-joinder of the rider's vehicle/motor cycle's owner and insurer is fatal to the Petitioner's claim. The claim of the Petitioner about her age, avocation and income is denied. The Petitioner's claim is excessive. Thus, the 2nd respondent sought for dismissal of the Petition.

4. Likewise, opposing the claim of the Petitioner, by filing counter, the 4th respondent -Insurance company disputes and denies the Petitioner's claim and the manner in which the accident occurred. The car bearing Reg.No.TN01-AF-8274 was not insured with them. The vehicle was not involved in the accident. The driver of the car did not possess valid driving licence. The claim of the Petitioner

is highly excessive. The 4th respondent sought for dismissal of the Petition.

5. Before the Tribunal, along with present MCOP.No.876 of 2010, another case in MCOP.No.877/2010 was taken up for joint trial as both cases arose out of the same accident. The Petitioner examined P.W.1 to P.W.3, produced documents Ex.P.1 to Ex.P.11 to prove their claim. The Tribunal on the basis of available evidence on record, found negligence of the 1st and 3rd respondent vehicle drivers caused the accident and fixed negligence at 50% each and passed award for a sum of Rs.6,92,000/- payable by the respondents 1 to 4 to the extent of 50% each.

6. Being not satisfied with the quantum of the award, the Petitioner/claimant has come forward with the present appeal.

7. Heard both sides and perused the records carefully.

8. The learned counsel for the Petitioner/Appellant contends that the Tribunal failed to consider the evidence properly and passed the award for a meagre amount. The injured was aged 32 years and she was earning Rs.6000/- per month. However, the Tribunal fixed the income at Rs.5000/-. Considering the nature of fracture and grievous injuries suffered by the Petitioner, the Tribunal ought to have awarded more amount for the permanent disability suffered. P.W.3 doctor fixed the disability at 80%. The Tribunal fixed the permanent disability at 70% and the loss of earning power is fixed at 35% only and the same is very low. The amount provided for under different heads is very meagre. Thus, the Appellant/Petitioner/claimant seeks for enhancement of the award amount by entertaining the appeal.

9. Per contra, the learned counsel for the respondent (s)/insurance company submits that the accident itself occurred due to negligence of the rider of the two wheeler and as such, the respondents are not liable to pay any compensation. However, the Tribunal passed the award for highly excessive amount. There is no need or scope for enhancement of the award amount. As such, the 2nd respondent and 4th respondents/Insurance company sought for dismissal of the appeal.

10. It is only quantum appeal. Both sides did not challenge the conclusion of the Tribunal fixing negligence on the part of the 1st and 3rd respondents driver at 50% each. The injured Petitioners in both MCOPs were the

eyewitness and they deposed as P.W.1 and P.W.2. Based on the evidence of the both Petitioners who deposed as P.W.1 and P.W.2 as well as the contents of Ex.P.1 FIR, the Tribunal found that negligence of the drivers of the auto and car are responsible for the accident. The said conclusion arrived at by the Tribunal is based on proper appreciation of evidence on record and the same is confirmed.

11. The Petitioner/appellant who deposed as P.W.1 stated about the injuries suffered by her and produced Accident Register Copy issued by the SRM Hospital as Ex.P.2. It is clear from Ex.P.3-Discharge summary that the Petitioner underwent treatment as inpatient in Parvathy Hospital, Chrompet, from 11.12.2009 to 16.12.2009. Further as stated above, she suffered multiple fracture and undergone surgery to fix the fractured bones. Subsequently as evidenced by Ex.P.4, Discharge summary, it is clear that she took treatment from 18.01.2010 to 19.01.2010. The Petitioner stated that she was aged 32 years and by working in the House Keeping Department in Ford Company, Maraimalai Nagar, was earning Rs.6000/- per month. However, the Petitioner has not produced any proof in respect of her employment, income as well as her age.

The Petitioner stated that she suffered multiple fracture and underwent surgery resulting in partial permanent disability to her. The doctor who deposed as P.W.3 stated that on personal examination and analysis of Ex.P.8-X ray taken by him, he assessed disability suffered by the Petitioner at 80%. According to P.W.3, the fractured bones are malunited and due to the same, the Petitioner is having pain and swelling in her back. Further the Petitioner suffered spinal fracture, right lliac bone fracture and lliac disruption. Further due to fracture of L1, L2, L3 and L4 Transverse process fracture and multiple rib fracture in 7th and 8th right side, the petitioner underwent surgery whereby Pelvic External fixator application is done. However, P.W.3 doctor has not given any calculation along with Ex.P.10-Disability Certificate issued by him.

Admittedly, P.W.3 did not treat the Petitioner.

12. Pointing it out, the learned counsel for the respondents/Insurance company contends that the disability assessed by P.W.3/doctor is highly excessive and not appropriate. Further it is pointed out that there is no proof for the monthly earning of the Petitioner and assuming that she is involved in home keeping department in a Private Company, it is not stated whether she continued to work or terminated from the employment subsequently to the injury.

13. Considering the submissions raised on both sides and also taking note of the fact that the age of injured is 32 years, it is appropriate to fix the monthly income of the Petitioner at Rs.5000/- as fixed by the Tribunal. As the injured was stated to be 32 years, the Tribunal adopted multiplier 16. Considering the nature of injury sustained by the appellant/claimant, it is fittest case to apply multiplier method for determining the compensation for loss of earning capacity as per Division Bench Judgment reported in 2005 ACJ 1483 [United India Insurance Company Limited Vs Veluchamy and another]. The Tribunal pointed out that while considering the nature of injury sustained by the Petitioner, the assessment of disability at 80% as per the Disability Certificate / Ex.P.10 issued by P.W.

2 appears to be on the higher side and fixed the loss of earning power at 35%. However, considering the fact that the disability was fixed at 70% by the Tribunal, it will be appropriate to fix the loss of earning capacity at 40%. Accordingly, the future loss of earning capacity is arrived as under:- Rs.5000 x 12 x 16 x 40/100 = Rs.3,84,000/-.

As such, the future loss of earning capacity is now fixed as Rs.3,84,000/- The amount awarded by the Tribunal under other heads is confirmed as this court finds no reason to enhance the compensation. The enhanced modified compensation to the claimant/injured appellant is as under:- 1.Loss of income for 6 months = Rs.30,000/- 2.Transportation =Rs.15,000/- 3.Extra nourishment =Rs.15,000/- 4.Damage to clothes =Rs.1,000/- 5.Medical expenses =Rs.50,000/- 6.Attender charges =Rs.15,000/- 7.Loss of amenities of life =Rs.40,000/- 8.Pain and suffering =Rs.50,000/- 9.Disability =Rs.1,40,000/- 10.Loss of earning power.

=Rs.3,84,000/-.

Total =Rs.7,40,000/- In the result, (i) The Civil Miscellaneous Appeal is Partly Allowed; (ii) The award amount is enhanced to Rs.7,40,000/- from Rs.6,92,000/-.

(iii) The award amount will carry interest at the rate of 7.5% per annum from the date of petition till the date of realisation;

(iv) The 2nd and 4th respondents are directed to pay the

award amount as ordered above, along with accrued interest and cost, within a period of six weeks from the date of receipt of a copy of this order, less the amount, if any already deposited.

(v)The appellant/claimant is entitled to withdraw the award amount, along with accrued interest. The Tribunal shall pass necessary orders following the appropriate procedure for disbursal of the award amount. No costs. Sd/- Assistant Registrar(CS vi) //True Copy// Sub Assistant Registrar nvsri To 1.The Motor Accidents Claims Tribunal, II ND Judge,Court of Small Causes, Chennai.

2. The section officer, VR Section, High court Madras +1cc to M/s.M.Malar , Advocate SR.No. 42218 +1cc to Ms.R.Srividhya , Advocate SR.No. 42832 +1cc to M/s.N.B.Surekha, Advocate SR.No. 41820 C.M.A.No.9 of 2016 ASK(06/12/2018)