National Insurance Company Ltd v. Basavanna,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN C.M.A.No.2065 of 2017 and Cross Appeal 51 of 2020 CMA No.2065 of 2017 National Insurance Company Limited, having its office at 73, Perundhurai Road, Erode-11.
...Appellant/3rd Respondent Vs 1.Basavanna
...Respondent 1/Petitioner
2.Madevaiya 3.M.Nakesh (Respondents 2 and 3 were set exparte by the court below. Hence dispensed with)
...Respondents 2 & 3/
Petitioner 1 & 2 PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 22.06.2015 made in M.C.O.P.No.395 of 2011 on the file of the Motor Accidents Claims Tribunal, Sub Court, Sathyamangalam. For Appellant : Mr.K.Padmanabhan For Respondents : Mr.Ma.P.Thangavel for R1 R2 and R3-Exparte Cross Appeal No.51 of 2020:
Basavanna ...Cross Objector vs 1.National Insurance Company Limited, having its office at 73, Perundhurai Road, Erode-11.
2.Madevaiya 3.M.Nakesh (Respondents 2 and 3 were set exparte by the court below. Hence dispensed with)
...Respondents
PRAYER: Cross Appeal filed under Order 41 Rule 22 of CPC, against the judgment and decree dated 22.06.2015 made in M.C.O.P.No.395 of 2011 on the file of the Motor Accidents Claims Tribunal, Sub Court, Sathyamangalam.
For Cross Objector : Mr.Ma.P.Thangavel For Respondents : Mr.K.Padmanabhan for R1 R2 and R3-Exparte C O M M ON J U D G M E N T The appeal is filed by the Insurance Company being aggrieved by the award passed by the Tribunal in the claim petition filed by the accident victim.
2.The claimant has filed Cross Appeal No.51 of 2020 for enhancement of compensation.
3. On 29.03.2011, when the claimant and his friend were going in Hero Honda bearing Registration No.TN 36 V 8931, in which the claimant was on the pillion, near Sericulture Department quarters on the Talavadi to Talamalai road, a motor cycle bearing Registration No.TN 36 V 6726 coming from the opposite direction rash and negligently dashed against the motor cycle, in which the claimant was travelling as a pillion rider. In the said accident, the claimant sustained severe injury and was taken to the Government hospital, Sathyamangalam, later shifted to Coimbatore Medical College Hospital and treated as inpatient till 05.05.2007. In the said accident, the claimant has sustained fracture of left leg. His normal functioning got crippled. The claim petition was filed against the owner of the offending motor cycle and its insurer. The rider of his motor cycle was also arrayed as respondent. Claim of Rs.10,00,000/- was sought on the ground that the claimant was earning Rs.10,500/- per month as a Mason and due to the injury, he has lost his livelihood.
4.The Insurance Company filed counter resisting the claim on the ground that the accident occurred due to the motor cyclist in which the claimant was travelling as a pillion rider. The rider of the motor cycle had no valid driving license. It was his motor cycle, which hit the other vehicle insured under them.
5. Prosecution was launched against the first respondent and final report was also filed against him by the police on investigation attributing the negligence on the part of the first respondent. Since the first respondent is the tort feasor, the Insurance Company is not responsible to indemnify the claimant.
6.Before the Tribunal, the claimant and the Doctor, who gave the disability certificate were examined as P.W.1 and P.W.2. 13 exhibits were marked in support of the claim petition. The Insurance Company examined one witness and marked the Insurance Policy copy as Ex.R1.
7.The Tribunal after considering the evidence has awarded a sum of Rs.7,98,750/- with 7.5% interest payable from the date of petition till the date of realisation and liberty was given to the Insurance Company to recover the said amount from the respondents 1 and 2 who are the driver and the owner of the motor cycle.
8.The appeal is filed on the ground that the Insurance Company ought to have totally exonerated from the liability, since the rider of the motor cycle viz., the first respondent had no valid driving license. For the breach of policy condition, the Insurance Company should be exonerated from paying any compensation. Further, the learned counsel appearing for the appellant submitted that for the injury sustained by the claimant are not scheduled injury, however the Tribunal has erroneously applied the multiplier and has fixed the percentage of disability on higher side based on the disability certificate given by the Doctor, who was not the doctor treated the claimant. Further, the learned counsel stated that the multiplier for the persons aged (41-45) is '14' but the Tribunal has taken the multiplier '15', though the injured age was 41 years. Learned counsel also submitted that in the absence of proof for income, the Tribunal ought to have taken the notional income as Rs.6,500/- only but had taken Rs.7,500/- as monthly income to compute the loss of earning.
9.Learned counsel appearing for the respondent/claimant submitted that a Cross Appeal has been filed against the said award seeking enhanced compensation and the same has been numbered as Cross Appeal No.51 of 2020. According to the learned counsel for the claimant, the injury sustained by the claimant had totally crippled his normal life and he has lost his earning capacity in full. Ex.P5 will show that there is a shortening of the left leg and the claimant is unable to stand or sit for a long time. Further, the notional income of the claimant ought to have been fixed at Rs.10,000/- per month but
the Tribunal without assigning any reason had fixed only as Rs.7,500/-.
10.Heard the learned counsel for the appellant and the respondent. Perused the records and the grounds of the appeal. 11.The accident victim had sustained injury while he was travelling on the pillion in the motor cycle owned by the second respondent insured under the third respondent. It is proved through evidence that the rider of the motor cycle in which the claimant travelling on the pillion had no valid driving license. Before the Tribunal, 13 exhibits were marked and from the F.I.R., final report of the police which is marked as Ex.P1 and Ex.P2, this Court finds that the F.I.R was registered against the first respondent for his rash and negligent driving. The Tribunal accepting the said evidence and has ordered pay and recovery. The claimant being the third party, this Court finds no error in the said order.
12.As far as the quantum of compensation is concerned, in the absence of proof of income, the Tribunal has taken notional income of the claimant as Rs.7,500/- as against the claim of Rs.10,500/-. The Tribunal has assigned the reason for fixing the notional income as Rs.7,500/- after relying upon the judgment of this Court in Managing Director, TNSTC vs Samboornam. Being a skilled labour, this Court is not inclined to interfere the fixation of notional income by the Tribunal, since the reasoning given by the Tribunal appears to be just. 13.Coming to the application of multiplier, to find whether the injury sustained by the claimant has caused difficulty or impediment in his earning capacity, it is necessary to look into the nature of injury sustained by the claimant. Though P.W.
2 has opined that the injury has caused 80% partial disability, as pointed out by the learned counsel for the appellant, P.W.2 is not the doctor who treated the injured. The disability certificate dated 17.04.2014, three years after the accident has been given by P.W.2, based on the previous medical record and Xray findings. 80% disability for left leg foot shortening of circumference and mal united fracture is highly excessive by any yardstick. Even for amputation of one limb under the W.C. Act, the percentage of total disability is only 50% whereas for mal united fracture, the doctor has certified the disability at 80%. Therefore, this Court is of the view that even if multiplier has to be applied in this case, the percentage of disability cannot be fixed as high as 50%.
Taking note of the avocation of the claimant and the nature of the injury as found in the disability certificate Ex.P12 and Ex.P5 Accident Register, this Court fixes 40% functional disability for computing the loss of income (7,500X14X40/100X12).
modified as below:
Compensation under Various Heads Award passed by this Court Loss of income due to Rs.5,04,000/- 40% functional disability (7,500X14X40/100X12) Pain and Suffering Rs. 40,000/- Medical Bills Rs. 5,241/- Transport Rs. 8,500/- Attender Charges Rs. 10,000/- Loss of earning during the treatment period (7500X3) Rs. 22,500/- Total Rs.5,90,241/-
14. The said amount with interest at the rate of 7.5% p.a. from the date of petition till the date of realisation shall be paid by the Insurance Company within a period of twelve weeks from the date of receipt of a copy of this judgment. If any amount already deposited, the same may be taken into account and the balance to be paid by the Insurance Company. On such deposit, the claimant is permitted to withdraw the same on appropriate application.
15. Accordingly, the Civil Miscellaneous Appeal and Cross Appeal are disposed of. No order as to costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar vri To 1.The Motor Accidents Claims Tribunal Subordinate Judge, Sathyamangalam.
Copy to:
The Section Officer, V.R.Section, High Court, Madras.
+1cc to Mr.Ma.P.Thangavel, Advocate, S.R.No.10958 CMA NO.2065 OF 2017 and Cross Objection No.51 of 2020 RP(CO) CB(03/09/2021)