Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 1124 (MAD)

National Insurance Company Limited v. Ramar

2019-04-12

K.KALYANASUNDARAM, R.THARANI

body2019
JUDGMENT : K. Kalyanasundaram, J. 1. This appeal is preferred by the Insurance Company, challenging the award of the Motor Accident Claims Tribunal/Additional Sub-Court, Tenkasi made in M.C.O.P. No. 319/2013. 2. The facts in brief are as follows : The injured claimant filed M.C.O.P. No. 319 of 2013, claiming compensation of Rs. 50,00,000/-. According to the claimant, on 5.1.2013, at about 10 a.m., he was standing in front of one 'Saleemshop' on Kollam-Senkottaimain road. At that time, a lorry bearing Regn. No. TN.67-M-8868 was driven by its driver in rash and negligent manner dashed against the claimant. In the accident, he suffered grievous injuries on both the legs and his right leg below the knee was amputated. It is stated that he was a load man and his monthly incomes is Rs. 15,000. 3. The appellant resisted the claim petition in the counter contending that the claimant was in inebriated mood, at the time of accident and he attempted to cross the road, without noticing the lorry, thereby he invited the accident and therefore, the appellant is not liable to pay any compensation. 4. In order to fortify the case, the claimant examined himself as P.W. 1 and examined 6 other witnesses as P.Ws. 2 to 7 and also marked Exs. P.1 to 10. On the side of the appellant, no witness was examined, no document was marked. 5. The Tribunal, after analysing both the oral and documentary evidence adduced by the claimant, held that the driver of the lorry was responsible for the accident and awarded total compensation of Rs. 31,80,350 along with interest at 7.5% per annum. Challenging the same, the present appeal has been filed. 6. Mr. J.S. Murali, learned Counsel for the appellant would urge that the claimant is a load man. But the Tribunal, without taking note of the judgment of the Honourable Apex Court in the case of Syed Sadiq, etc. v. Divisional Manager, United India Insurance Company Limited, reported in I (2014) SLT 564 : I (2014) ACC 206 (SC) : 2014 (1) TN MAC 459 (SC), has wrongly fixed the income at Rs. 11,000 per month. It is further argued that the Tribunal, while awarding compensation towards loss of income, also awarded Rs. 3,00,000 towards permanent disability. v. Divisional Manager, United India Insurance Company Limited, reported in I (2014) SLT 564 : I (2014) ACC 206 (SC) : 2014 (1) TN MAC 459 (SC), has wrongly fixed the income at Rs. 11,000 per month. It is further argued that the Tribunal, while awarding compensation towards loss of income, also awarded Rs. 3,00,000 towards permanent disability. The learned Counsel relying upon an another decision of the Hon'ble Apex Court in the case of New India Assurance Company Limited v. Gajender Yadav and Others, reported in 2017 (2) TN MAC 465 (SC), contended that there cannot be any duplication and hence, the amount of Rs. 3,00,000 awarded under the head of permanent disability is liable to be set aside. It is also argued that the amount awarded under other heads are also excessive and they are liable to be reduced. 7. Per contra, Mr. R.J. Karthick, learned Counsel for the claimant would submit that it is an unfortunate accident, in which, the claimant has lost two of his legs. According to the learned Counsel, the judgment of the Hon'ble Apex Court passed in Syed Sadiq, etc. v. Divisional Manager, United India Insurance Company Limited (above mentioned) has no application in this case for the reason that in that case, no evidence was produced to prove the income of the claimant. In this case, though the claimant, by examining P.Ws. 6 and 7, has proved the income of the claimant at Rs. 15,000, but the Tribunal has wrongly taken the income as Rs. 11,000. 8. It is further contended that as per the decision of the Honourable Apex Court reported in VII (2017) SLT 707 : IV (2017) ACC 460 (SC) : IV (2017) CLT 407 (SC) : 2017 (2) TNMAC 609 (SC) in the case of National Insurance Company Limited v. Pranay Sethi and Others, the claimant is entitled to 50% addition towards future prospects, that was also not awarded by the Tribunal. By citing the decision in the case of Managing Director, Tamil Nadu State Transport Corporation Limited, Madurai Division III, Nagercoil, Kanyakumari District v. S. Yobu and Another reported in 2014 (1) TN MAC 295 (DB) and the judgment of the Apex Court in the case of V. Mekala v. M. Malathi & Another, reported in II (2015) SLT 350 : III (2014) ACC 549 (SC) : 2014 (2) TN MAC 6 (SC), it is contended that the injured is also entitled for award under the heads of loss of income and permanent disability. 9. In the case on hand, this appeal has been preferred only challenging the quantum. It is not in dispute that the claimant was 48 years old at the time of accident and the claimant was a load man. It is true that the appellant has not produced any contra evidence, but at the same time, the Court cannot jump to a conclusion that the case of the claimant is proved. The claimant, by examining P.Ws. 6 and 7, attempted to prove that the monthly income of the claimant was Rs. 15,000, however, the Tribunal, by rightly pointing out that the claimant has not produced any salary Register to substantiate his case, has fixed the income as Rs. 11,000. The Honourable Apex Court in the case of Syed Sadiq, etc., v. Divisional Manager, United India Insurance Company Limited, (above mentioned), in similar facts, has fixed the income of the claimant as Rs. 6,500 per month. In the recent decision reported in 2017 (2) TNMAC 609(SC) in the case of National Insurance Company Limited v. Pranay Sethi and Others, the Honourable Apex Court has held that the claimant/deceased is self-employed/who does not have any permanent employment, for the age group between 40-50, 25% addition can be awarded towards future prospects. 10. In the light of the above facts, in our considered view, it would be appropriate to fix the income of the claimant at Rs. 7,500. He is also entitled for 25% addition towards future prospects. By adding Rs. 1,875, total income of the claimant is arrived at Rs. 9,375. Since the claimant has lost his two legs, the Tribunal has rightly applied multiplier 13. By adopting multiplier 13, this Court awards Rs. 14,62,500 towards loss of income. 7,500. He is also entitled for 25% addition towards future prospects. By adding Rs. 1,875, total income of the claimant is arrived at Rs. 9,375. Since the claimant has lost his two legs, the Tribunal has rightly applied multiplier 13. By adopting multiplier 13, this Court awards Rs. 14,62,500 towards loss of income. In the decision relied on by the learned Counsel for the appellant reported in New India Assurance Company Limited v. Gajender Yadav and Others (supra), the Honourable Apex Court, has held as follows: "8. The High Court, in the pecuniary part, has awarded Rs. 8 lakh on account of physical disability and for future loss of earnings Rs. 13 lakh. This is certainly a duplication. What is to be compensated is only the loss on account of disability. The said total amount of Rs. 21 lakh will stand substituted by Rs. 15,21,000 (Rupees fifteen lakh and twelve thousand) and the rest of the High Court Order is maintained." 11. Keeping in view of the decision of the Apex Court referred supra, the award amount of Rs. 3,00,000 under the head permanent disability is liable to be deleted. Accordingly, it is deleted. The Tribunal has awarded Rs. 5,49,000 for attendant charges and the same is reduced to Rs. 1,50,000. A sum of Rs. 2,50,000 awarded towards future medical expenses is reduced to Rs. 1,00,000. A sum of Rs. 2,00,000 awarded towards pain and suffering and a sum of Rs. 65,000 awarded towards loss of amenities and happiness are confirmed. A sum of Rs. 55,000 awarded towards loss of income during treatment period is reduced to Rs. 37,500. A sum of Rs. 20,350 awarded towards transportation is now enhanced to Rs. 25,000 and a sum of Rs. 25,000 awarded for extra nourishment is confirmed. In total, the claimant is entitled for Rs. 20,65,000 along with interest at 7.5% per month. Details of the modified compensation reads as follows: Loss of income Rs.14,62,500/- Future medical expenses Rs.1,00,000/- For attendant charges Rs.1,50,000/- For pain and suffering Rs.2,00,000/- For loss of amenities and happiness Rs.65,000/- For loss of income during treatment period Rs.37,500/- For transport expenses Rs.25,000/- For extra nourishment Rs.25,000/- Total Rs.20,65,000/- 12. In the result, this civil miscellaneous appeal is partly allowed by. reducing the award of the Tribunal from Rs. 31,80,350 to Rs. 20,65,000. The interest awarded by the Tribunal at 7.5% is confirmed. 13. Mr. In the result, this civil miscellaneous appeal is partly allowed by. reducing the award of the Tribunal from Rs. 31,80,350 to Rs. 20,65,000. The interest awarded by the Tribunal at 7.5% is confirmed. 13. Mr. J.S. Murali, the learned Counsel represented that the appellant has already deposited Rs. 25,00,000. In view of the disposal of the appeal, the, appellant shall deposit the balance modified award amount, less already deposited, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimant is permitted to withdraw the entire amount with accrued interest and costs, less the amount already withdrawn if any, by filing an application before the Tribunal. Consequently, connected miscellaneous petition is closed.