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2021 DIGILAW 1319 (MAD)

Reliance General Insurance Co. Ltd. v. Kannan

2021-04-16

R.SUBBIAH, S.KANNAMMAL

body2021
JUDGMENT : R.Subbiah, J. The appeal is heard through video conferencing. 2. Challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal/Special Sub Judge No.II, Salem, in MCOP.No.1873 of 2016 dated 07.02.2018, the present appeal has been filed by the Insurance Company. 3. It is the case of the first respondent/claimant that he was working as an additional driver in a Taurus Lorry bearing Registration No. KA 01 B 8114 and earning a sum of Rs.25,000/- per month. On 26.12.2015, while the said Taurus Lorry was proceeding near a Polytechnic College in Hunagunda Hukal NH 50 Main Road, the Driver of the said Taurus Lorry drove the vehicle in a rash and negligent manner and dashed against a Trailer Lorry bearing Registration No.KA 48/3422, which was parked on the left side of the road. Due to the impact, the first respondent/claimant, who travelled as a second driver, sustained multiple grievous injuries on his left leg and other vital organs of the body. Immediately, the injured was admitted in the Government Hospital, Hunagunda, Karnataka and thereafter, he was shifted to Ganga Hospital, Coimbatore, where he took treatment for more than 40 days. As his left leg was crushed severely, it was amputated below the knee. Hence, the claimant made a claim for a sum of Rs.25,00,000/- as compensation. 4. Resisting the claim made by the first respondent/claimant, the appellant/Insurance Company filed a counter statement, inter alia, contending that the accident had not occurred in the manner as projected by the first respondent/claimant. They have also denied the age, occupation and income of the first respondent/claimant. 5. To prove the claim, before the Tribunal, first respondent/claimant examined himself as PW1 and marked 12 documents, viz., Exs.P1 to P12. On the side of the Insurance Company, none was examined and no exhibit was marked. 6. On an appreciation of the materials and the entire evidence on record, the Tribunal arrived at a finding that the accident had occurred due to the rash and negligent driving of the driver of the Taurus Lorry bearing Registration No.KA 01 B 8114 and hence, its insurer, the appellant is liable to pay the compensation. Further, the Tribunal held that the first respondent/claimant is entitled to get a compensation of Rs.22,84,756/- from the appellant/Insurance Company. Further, the Tribunal held that the first respondent/claimant is entitled to get a compensation of Rs.22,84,756/- from the appellant/Insurance Company. The break-up details of the amounts awarded by the Tribunal under various heads are as follows: S.No. Compensation awarded under the heads Amount in Rs. 1. Future Loss of Income for 100% disability 17,47,200 2. Pain and suffering 1,00,000 3. Loss of Estate 1,00,000 4. Medical Expenses 1,72,056 5. Artificial Leg fixing Expenses 1,00,000 6. Transport Expenses 20,000 7. Nutrition Expenses 20,000 8. Attendant Charges 25,000 9. Damage to cloth 500 Total 22,84,756 7. The learned counsel appearing for the appellant/Insurance Company submitted that though they have raised defence regarding liability, now they are not pressing the same. The reason being, there is coverage for the risk that may be incurred by the additional driver in the vehicle with payment of additional premium of Rs.50/- by the owner of the vehicle. 8. Now, the main contention of the learned counsel for the appellant/Insurance Company is that, though the Doctor had examined the claimant and fixed the permanent disability at 65%, the Tribunal without assigning any valid reason, had taken the permanent disability of the claimant at 100%. Hence, the permanent disability of the claimant has to be fixed at 65% and the “Future Loss of Income” of the claimant has to be re-calculated accordingly. He further submitted that the amounts awarded by the Tribunal under the other heads are very high, which resulted in awarding exorbitant sum of Rs.22,84,756/- as compensation and, hence the same needs proper reduction. 9. On the other hand, the learned counsel for the first respondent/claimant made his submissions supporting the findings rendered by the Tribunal. 10. This Court considered the rival submissions of both parties and perused the materials available on record. 11. Since the learned counsel for the appellant/Insurance Company has not pressed this appeal with respect to liability to pay compensation to the claimant, we are not traversing on that aspect. 12. The main contention of the learned counsel for the appellant/Insurance Company is that the Tribunal had taken the permanent disability of the claimant at 100% and awarded an exorbitant sum of Rs.17,47,200/- under the head “Future Loss of Income” by ignoring the disability certificate, wherein the permanent disability was mentioned as 65%. 12. The main contention of the learned counsel for the appellant/Insurance Company is that the Tribunal had taken the permanent disability of the claimant at 100% and awarded an exorbitant sum of Rs.17,47,200/- under the head “Future Loss of Income” by ignoring the disability certificate, wherein the permanent disability was mentioned as 65%. On a perusal of the records, we find that the victim was a driver by avocation and on account of the accident, his left leg below the knee was amputated. Hence, he is not in a position to continue his avocation as a Lorry driver. In such circumstance, merely because the disability certificate issued to the claimant indicates his disability at 65%, we cannot fix the compensation based on the same. The fact remains that the amputation of one of the legs below the knee of the claimant would have shattered his livelihood in entirety leaving no scope to engage in the avocation in which he was engaged prior to the accident. Therefore, the fixation of the disability at 100% by the Tribunal cannot be said to be improper. 13. The Tribunal, by fixing a sum of Rs.6,500/- as monthly income of the claimant and adding 40% of the same towards future prospects, arrived at the actual monthly income of the claimant at Rs.9,100/- [6,500+ 2,600]. Thereafter, considering the age of the claimant being 31 years at the time of the accident, the Tribunal applied multiplier "16" and arrived at a sum of Rs.17,47,200/- [9,100 x 12 x 16 x 100%] under the head “Future Loss of Income”, which in our opinion is fair and reasonable and hence, the same is confirmed. 14. This is a case of injury, while so, awarding compensation under the head “Loss of Estate” does not arise. Hence, the sum of Rs.1,00,000/- awarded by the Tribunal under the head “Loss of Estate” is set aside. Except, this modification, we find that the amount awarded by the Tribunal under the other heads are just and fair and hence, they are confirmed. Accordingly, the modified compensation is as follows: S.No. Compensation awarded under the heads Amounts awarded by the Tribunal in Rs. Amounts awarded by this Court in Rs. 1. Future Loss of Income for 100% disability 17,47,200 17,47,200 2. Loss of pain and sufferings 1,00,000 1,00,000 3. Loss of Estate 1,00,000 - 4. Medical Expenses 1,72,056 1,72,056 5. Accordingly, the modified compensation is as follows: S.No. Compensation awarded under the heads Amounts awarded by the Tribunal in Rs. Amounts awarded by this Court in Rs. 1. Future Loss of Income for 100% disability 17,47,200 17,47,200 2. Loss of pain and sufferings 1,00,000 1,00,000 3. Loss of Estate 1,00,000 - 4. Medical Expenses 1,72,056 1,72,056 5. Artificial Leg fixing Expenses 1,00,000 1,00,000 6. Transport Expenses 20,000 20,000 7. Nutrition Expenses 20,000 20,000 8. Attendant Charges 25,000 25,000 9. Damage to cloth 500 500 Total 22,84,756 21,84,756 15. At this juncture, the learned counsel for the appellant/Insurance Company submitted that entire compensation amount of Rs.22,84,756/- awarded by Tribunal was already deposited and hence, he requested for withdrawal of the excess amount of Rs.1,00,000/- deposited by them. 16. In the result, the Civil Miscellaneous Appeal is partly allowed. The compensation of Rs.22,84,756/- awarded by Tribunal is hereby reduced to Rs.21,84,756/- together with interest at 7.5% p.a. The first respondent/claimant is permitted to withdraw the compensation amount which is now re-determined by us in this appeal with proportionate interest. The appellant/Insurance Company is permitted to withdraw the excess sum of Rs.1,00,000/- with accrued interest. No costs. Connected miscellaneous petition is closed.