The Manager v. Natarajan

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 02.11.2018

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.(MD)No.998 of 2017 and C.M.P(MD)No.10320 of 2017 & C.M.P(MD)No.2508 of 2018 Manager, Cholamandalam General Insurance Co. Ltd., Dare House, 2nd Floor, Door No.2, N.S.C.Bose Road, Chennai-600 001.

... Appellant/Respondent-2 Vs.

1.Natarajan

...Respondent/Petitioner

2.S.Suresh ... Respondent/Respondent-1 PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the award made in M.C.O.P.No.1121 of 2013, dated 27.01.2016 passed by the Motor Accident Claims Tribunal (Special Sub Court for MCOP Cases), Thanjavur.

For Appellant : Mrs.K.R.Shiva Shankari For R1 : Mr.S.Raja Prabu For R2 : No appearance * * * * *

JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant-Insurance Company against the award, dated 27.01.2016, made in M.C.O.P.No.1121 of 2013, passed by the Motor Accident Claims Tribunal (Special Sub Court for MCOP Cases), Thanjavur. 2.The appellant/Insurance Company filed the present appeal challenging the award of the Tribunal with regard to quantum of compensation granted to the first respondent. 3.According to the learned counsel appearing for the appellant, the Tribunal erred in fixing the disability of 76%, taking into consideration of the disability certificate given by two doctors and awarded excessive amounts. The amounts awarded by the Tribunal under the heads of pain and suffering, extra nourishment and loss of income, are excessive. He further contended that when the doctor has certified that the first respondent/claimant suffered disability in particular part of the body, that cannot be taken as disability for the entire body. The percentage of disability has to be reduced to arrive at loss of

income. In support of the contention, the learned counsel appearing for the appellant relied on the judgment reported in 2011 ACJ 1 (Raj Kumar v. Ajay Kumar and another).

4.Per contra, the learned counsel appearing for the first respondent/claimant contended that two doctors Orthopedic Surgeon and Neuro Surgeon have certified the percentage of disability. The Tribunal has taken the percentage of disability and awarded compensation at Rs.3,000/- per percentage. The same is proper and the compensation awarded by the Tribunal is not excessive. The quantum of compensation granted under different heads are meagre and prayed for dismissal of the appeal.

5.I have heard the learned counsel appearing for the appellant and the first respondent and perused the materials available on record.

6.From the materials on record, it is seen that the first respondent sufferred injuries in the Chest as well as the injuries on the head. In view of the nature of injuries, Orthopedic Surgeon as well as the Neuro Surgeon given certificate of disability and deposed about the nature of injuries and the treatment taken by the first respondent and about the disability sufferred by the first respondent at 36% and 40% respectively. The appellant has not let in any evidence to show that the percentage of disability as certified by the doctors, who were examined as P.Ws.2 & 3, are on the higher side. Based on the evidence of P.Ws.2 & 3 and documents produced by the first respondent, the Tribunal has awarded a sum of Rs.3,000/- per percentage, amounting to Rs.2,28,000/-. The said amount is not excessive.

7.The contention of the learned counsel appearing for the appellant that the Tribunal erred in awarding compensation for 76% of disability, does not reflect the disability for entire body. The said contention is without merits and the judgment reported in 2011 ACJ 1 (Raj Kumar v. Ajay Kumar and another) relied on by learned counsel for appellant is not applicable to the facts of the present case. The said judgment relates to compensation awarded by adopting multiplier method. In the present case, the Tribunal did not grant compensation by adopting multiplier method, but granted compensation based on percentage method. The amount awarded by the Tribunal is proper and just compensation. It is not excessive. 8.

The contention of the learned counsel for the appellant that the Tribunal granted excessive amounts towards pain and suffering, extra nourishment and loss of income has considerable force. A sum of Rs.75,000/- granted towards pain and suffering is excessive. The same is reduced to Rs.50,000/-. Before the Tribunal, no evidence was produced by the first respondent to show that the nature of business carried on by the first respondent and his earning. In the absence of such evidence, the Tribunal fixed the monthly income of the first respondent at Rs.

awarded a sum of Rs.45,000/- for six months as loes of income. The monthly income fixed by the Tribunal is reduced to Rs.6,000/- per month and compensation for loss of income is granted for three months at the rate of Rs.6,000 x 3 = 18,000/-, as there was no evidence to show that he could not do business for six months and he did not earn any amount during that period. The amounts awarded under the other heads are confirmed.

9. The rate of interest awarded by the Tribunal at 7.5% per annum is confirmed.

10. In view of the settled position of law, this Court modifies the award of the Tribunal by reducing the compensation, as under:- S.No Description Amount awarded by Tribunal (Rs) Award confirmed or enhanced or granted 1.

For partial permanent disability Amount awarded by this Court (Rs) 2,28,000 2,28,000 confirmed 2.

For Medical expenses 91,540 91,540 confirmed 3.

For pain and suffering 75,000 50,000 reduced 4.

For extra nourishment 30,000 30,000 confirmed 5.

For Attendant charges 1,000 1,000 confirmed 6.

For Transportat ion 6,000 6,000 confirmed 7.

Loss of income 45,000 18,000 reduced Total Rs.4,76,540 Rs.4,24,540 By reducing a sum of Rs.52,000/-

11. In the result, (i) This Civil Miscellaneous Appeal is partly allowed, reducing the award of the Tribunal from Rs.4,76,540/- (Rupees Four Lakhs Seventy Six Thousand Five Hundred and Forty only) to a sum of Rs.4,24,540/- (Rupees Four Lakhs Twenty Four Thousand Five Hundred and Forty only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs;

(ii) The appellant Insurance Company is directed to deposit the said amount, less the amount already deposited, if any, along with accrued interest and costs to the credit of M.C.O.P.No.1121 of 2013, on the file of the Motor Accident Claims Tribunal (Special Sub Court for MCOP cases), Thanjavur, within a period of eight weeks from the date of receipt of copy of this judgment; (iii) On such deposit being made, the first respondent/ claimant is entitled to withdraw the amount, less the amount already withdrawn, if any, with interest and costs by making necessary application before the Tribunal. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar (CS-III) // True Copy // Sub Assistant Registrar(CS) To 1.The Motor Accident Claims Tribunal, (Special Sub Court for MCOP Cases), Thanjavur.

2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.

(2 COPIES) +1CC TO MR.S.SRINIVASA RAGHAVAN, Advocate Sr. No. 94291 C.M.A.(MD)No.998 of 2017 02.11.2018 TR (06.03.2019) 4P 5C