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2025 DIGILAW 911 (MAD)

Reliance General Ins. Co. Ltd. v. M. G. Shaju

2025-02-12

S.SOUNTHAR

body2025
JUDGMENT : 1. Aggrieved by the Award passed by the Motor Accident Claims Tribunal, the insurance company has filed CMA No.2655 of 2021. 2. Not satisfied with the quantum of compensation awarded by the Tribunal, the claimant has filed the Cross Obj.No.101 of 2021. 3. Both the civil miscellaneous appeal and the cross objection have been filed as against the compensation awarded by the Tribunal in MCOP No.170 of 2013, dated 19.06.2018. 4. According to the first respondent/ claimant, on 05.01.2011, when he was travelling as a pillion rider in his Hero Honda Motor cycle bearing registration No.TN 37 AH 1936, driven by his friend N.Karthik Kamal, the fourth respondent herein, a Bajaj Pulsar motor cycle bearing registration No. TN 37 AE 4394, driven by the first respondent came in the opposite direction in a rash and negligent manner and hit the motorcycle of the claimant. As a result of which, the claimant suffered head injury. The claimant filed a claim petition seeking compensation of Rs.25,00,000/- before the Tribunal. 5. The driver and owner of the offending vehicle remained exparte. The appellant herein/ insurance company, insurer of the offending vehicle filed counter and contested the claim petition, by denying the manner of accident as narrated in the claim petition. The appellant also denied the income, age and earning capacity of the claimant. 6. Before Tribunal, the claimant was examined as PW1 and his employer was examined as PW2. The Doctor, who issued disability certificate to the claimant was examined as PW3 and the owner of the offending vehicle was examined as RW1. On behalf of the claimant, 18 documents were marked as Ex.P1 to E.P18 and on behalf of the insurance company, no document was marked. 7. The Tribunal, based on the available records, came to the conclusion that the accident had occurred due to the rash and negligent driving of the Bajaj pulsar motorcycle belonging to the second respondent herein and hence, the appellant herein/ insurer of the vehicle is liable to pay compensation. The Tribunal fixed quantum of compensation and also fixed 15% contributory negligence on the part of the claimant, as he failed to wear helmet at the time of accident. Accordingly, after deducting 15% towards contributory negligence, the insurance company was directed to pay a sum of Rs.8,02,438/- as compensation to the claimant. The Tribunal fixed quantum of compensation and also fixed 15% contributory negligence on the part of the claimant, as he failed to wear helmet at the time of accident. Accordingly, after deducting 15% towards contributory negligence, the insurance company was directed to pay a sum of Rs.8,02,438/- as compensation to the claimant. Aggrieved by the said award, the insurance company preferred the appeal, whereas, the claimant has preferred the cross objection seeking enhancement of compensation. 8. The learned counsel for the appellant/ insurance company would submit that the claimant failed to lead any independent evidence to prove the negligence on the part of the driver of the vehicle, insured with the appellant and hence the Tribunal committed error in fixing 85% contributory negligence on the part of the driver of the vehicle, insured with the appellant. 9. The learned counsel for the claimant/cross objector by taking this court to the evidence of PW1, Ex.P1 FIR would submit that the Tribunal has rightly fixed the contributory negligence on the part of the driver of the vehicle, insured with the appellant. He would further submit that the Tribunal ought not have fixed 15% contributory negligence on the part of the claimant/cross objector. On the question of quantum, learned counsel further submits that as per the direction issued by the Tribunal, the claimant appeared before it and it was recorded by the Tribunal that the claimant could not lead his normal life without help of an attender. Therefore, the Tribunal committed error by not applying the multiplier method, while calculating the compensation. 10. In order to prove the averments made in the claim petition that the negligence is on the part of the driver of the vehicle insured with the appellant, the claimant was examined as PW1 and deposed in line with the averments contained in the claim petition. The evidence of PW1 is very well corroborated with the averments contained in the FIR, marked as Ex.P1. In the absence of any contra evidence on the part of the appellant/insurance company, the Tribunal has rightly came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the vehicle insured with the appellant/ insurance company. Therefore, the said finding of the Tribunal need not be interfered with. 11. Admittedly, at the time of accident, the claimant did not wear a helmet and he received head injury. Therefore, the said finding of the Tribunal need not be interfered with. 11. Admittedly, at the time of accident, the claimant did not wear a helmet and he received head injury. Therefore, the Tribunal was justified in fixing contributory negligence at 15% on the part of the claimant/ cross objector and this court does not see anything to interfere with the fixation of contributory negligence on the part of the claimant at 15%. 12. In order to prove the nature of disability suffered by the claimant, Dr.Keshavamurthy, working in KMCH Hospital, Coimbatore wherein the claimant had taken treatment, was examined as PW3. He clearly deposed that the right leg and hand of the claimant got affected and he could not lead his normal life without the help of an attender. The Ex.P9 is the disability certificate issued by PW3. A perusal of Ex.P9 would suggest that the claimant has got mild slurring in speech and he could not move his right upper and lower limbs. It is seen from the order passed by the Tribunal that the claimant appeared before the Tribunal as per its direction and his locomotor movement was very slow at the relevant point of time. The Tribunal clearly recorded that the claimant was guided by his wife during his appearance before the court and the Tribunal recorded its opinion that the claimant could not lead his normal life without any support of an attender. Taking into consideration the evidence of PW1, disability certificate Ex.P9 and the recording made by the Tribunal with regard to the extent of disability suffered by the claimant, this court feels that the Tribunal should have adopted multiplier method while calculating the compensation under the head disability. 13. Though the disability percentage was mentioned as 61% in Ex.P9 issued by the PW3, this court is not convinced to accept the disability of 61%, having regard to the disability and the difficulties noted in the disability certificate, namely, 1. mild slurring in speech, 2. weakness of right upper and lower limbs. The claimant failed to get disability certificate from the Medical Board and only the Doctor, who treated the claimant was examined as PW3. Further, in his cross examination, the PW3 admitted that in the discharge summary issued to the claimant, it was not mentioned that he could move around only with the help of an attender in future. The claimant failed to get disability certificate from the Medical Board and only the Doctor, who treated the claimant was examined as PW3. Further, in his cross examination, the PW3 admitted that in the discharge summary issued to the claimant, it was not mentioned that he could move around only with the help of an attender in future. However, the claimant appeared before the Tribunal and it was noted by the Tribunal that the claimant could not move around without the help of an attender for the rest of his life. Taking into consideration all the above aspects, this court feels that it would be appropriate to fix disability at 50%. 14. The employer of the claimant was examined as PW2 and through him, salary certificate was marked as Ex.P13. As per the salary certificate, the claimant received a sum of Rs.6,500/- per month. Therefore, this court has no hesitation to fix the income of the claimant at Rs.6,500/- per month. At the time of accident, the claimant was aged about 33 years. Therefore, as per the law laid down by the Honourable Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others, AIR 2017 SC 5157 ( Special Leave Petition (Civil) No. 25590 of 2014 dated 31.10.2017), the claimant is entitled to the enhancement of 40% of income towards Future Prospects. Accordingly, the income of the claimant is fixed at Rs.9,100/- (6500 + 2600) and by adopting proper multiplier 16', the compensation for permanent disability suffered by the claimant/cross objector is fixed at Rs.8,73,600/-. (9,100 x 12x16 x 50/100=8,73,600). Therefore, an amount of Rs.1,83,000/- fixed by the Tribunal towards permanent partial disability on percentage basis is enhanced to Rs.8,73,600/-. Since compensation is awarded towards disability by adopting multiplier method, a separate sum of Rs.1,00,000/- awarded towards dependency and a sum of Rs.39,000/- towards loss of earning power by the Tribunal are set aside. However, the claimant is entitled to Rs.20,000/- towards loss of amenities in life, as he cannot lead normal life as before. The amount awarded under the head damage to clothing is also set aside. 15. As far as the other compensation awarded under various other conventional heads are concerned, the same are confirmed. As already discussed, 15% contributory negligence is fixed on the claimant. Therefore, from the total compensation awarded, 15% has to be deducted towards contributory negligence on the part of the claimant. 15. As far as the other compensation awarded under various other conventional heads are concerned, the same are confirmed. As already discussed, 15% contributory negligence is fixed on the claimant. Therefore, from the total compensation awarded, 15% has to be deducted towards contributory negligence on the part of the claimant. 16. Accordingly, the revised compensation awarded by this Court is tabulated as under: S. No. Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted 1. Pain and suffering 50,000 50,000 confirmed 2. Extra nourishment 15,000 15,000 confirmed 3. Transportation charges 2,000 2,000 confirmed 4. Medical expenses as per bills 5,53,545 5,53,545 confirmed 5. Permanent disability 1,83,000 8,73,600 enhanced 6. Loss of earning capacity 39,000 -- set aside 7. damage to clothing 1,500 -- set aside 8. Towards dependency 1,00,000 -- set aside 9. Loss of amenities -- 20,000 granted Total 9,44,045 15,14,145 enhanced Less 15% contributory negligence 1,41,606.75 2,27,121.75 ordered 8,02,439 12,87,023.25 rounded off 12,87,025 enhanced In the Result: 17. The Cross objection No.101 of 2021 is partly allowed and the compensation awarded by the Tribunal at Rs. 8,02,439 /- is hereby enhanced to Rs. 12,87,025 /- together with interest at 7.5% per annum (excluding the default period, if any) from the date of claim petition till the date of deposit. 18. The appellant/insurance company is directed to deposit the compensation amount now determined by this Court, along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the cross objector/claimant shall be permitted to withdraw the compensation amount along with interest and costs, less the amount if any, already withdrawn by making formal application before the Tribunal. No costs. 19. In view of the above discussion and findings, the CMA No. 2655 of 2021 filed by the appellant/insurance company is dismissed. Consequently, the connected civil miscellaneous petition is closed. There shall be no order as to costs.