IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 06.04.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.1022 of 2008 & Cross Objection No.155 of 2010 & M.P.No.1 of 2008 National Insurance Co. Ltd., Office situated at 403, Mettur Main Road, Near Munsiff Court, 3rd Respondent/ Bhavani, Bhavani Taluk ... Appellant in C.M.A.No.1022 of 2008/ 1st respondent in Cross Objection No.155 of 2010 Vs. Petitioner/ 1.Muthuswamy ... 1st respondent in C.M.A.No.1022 of 2008 / Cross Objector in Cross Objection No.155 of 2010 2.P.Gurusamy ... Ist Respondent/2nd Respondent in CMA & Cross Objection 3.P.Arun Prasath ... 2nd Respondent/ respondents in C.M.A.No.1022 of 2008 and in Cross Objection No.155 of 2010 Appeal filed under Section 173 of the Motor Vehicles Act, 1988 and the Cross Objection filed under Order 41, Rule 22 of the Civil Procedure Code, against the Judgment and Decree dated 11.09.2006 made in M.C.O.P.No.246 of 2004, on the file of Motor Accident Claims Tribunal, Sub Court, Bhavani. Appellant in C.M.A.No.1022 of 2008/ 1st respondent in Cross Objection No.155 of 2010 : M/s.N.B.Surekha https://hcservices.ecourts.gov.in/hcservices/ 1st respondent in C.M.A.No.1022 of 2008/ Cross Objector in Cross Objection No.155 of 2010 : Mr.M.A.P.Thangavel - - - C O M M O N J U D G M E N T The Civil Miscellaneous Appeal is preferred by the appellant / National Insurance Company Limited against the award and Decree passed in M.C.O.P.No.246 of 2004, dated 11.09.2006 on the file of Motor Accident Claims Tribunal, Sub Court, Bhavani, Erode District on awarding a compensation a sum of Rs.4,77,915/- with interest at the rate of 6% per annum from the date of filing the claim petition till the date of payment of compensation. 2.Not being satisfied with the award and decree passed by the Tribunal, the first respondent/claimant has filed the Cross Objection No.155 of 2010 for enhancement of a sum of Rs.2,00,000/-. 3.The short facts of the case are as follows:- On 19.05.2004, at around 6.40 a.m., the petitioner was travelling in a mini-door tempo bearing Registration No.TN36-F- 2995 along with his loaded cotton goods on the Bhavani to Mettur Main Road, at that time, due to the rash and negligent driving by the driver of the vehicle, which swerved and capsized, as a result, the claimant had sustained grievous injuries. Hence, the claimant filed the claim petition against the respondents for compensation a sum of Rs.9,90,000/- with interest. 4.The Insurance Company had filed a counter statement and resisted the claim petition. The respondent denied the accident that the vehicle bearing Registration No.TN36-F-2995 had been involved in the said accident on 19.05.2004 on the Mettur to Bhavani Main Road. Therefore, the claim petition is not maintainable. If the first respondent had committed the accident, then he is liable to pay compensation, since the negligence being on the side of the driver. The age, income and occupation of the claimant are denied besides the claim amount is excessive. 5.On the averments of both parties, the Tribunal had framed two issues for consideration, namely; https://hcservices.ecourts.gov.in/hcservices/ "(i)Whether the accident was caused due to the rash and negligent act of the first respondent? (ii)Whether the petitioner is entitled to compensation? If so to what amount?" 6.On the side of the claimant two witnesses had been examined viz., PW1-claimant, PW2-Dr.Krishnaswamy and fourteen documents were marked, viz., Ex.P1, First Information Report, Exs.P2 and P3-Rough sketch, Ex.P4-MVI Report, Ex.P5-Charge sheet, Ex.P6-Wound Certificate, Exs.P7 and P8-Medical bill series, Ex.P9-Commercial Tax Receipts, Ex.P10-Professional Tax Receipts, Ex.P11-copy of the Profit and Loss Account, Ex.P12- copy of the Firm Registration Certificate, Ex.P13-Permanent Disability Certificate and Ex.P14-X-ray. On the side of the respondent, no witness was examined and no document was marked. 7.PW1 had adduced evidence stating that on 19.05.2004, at around 6.40 a.m., he was travelling along with his loaded cotton goods in a mini-door van bearing Registration No. TN36-F-2995 on the Bhavani to Mettur Main Road, when at that time, the vehicle has fallen down due to the reckless driving by the driver of the vehicle. He further stated that as a result, he had sustained grievous injuries including multiple bone fractures. His left leg was amputated upto knee level. He had undergone treatment at Lotus Hospital, Erode for a period of one month as an inpatient and thereafter, he underwent treatment as an outpatient. PW2 doctor had assessed the disability as 75%. 8.On considering the evidences of the witnesses and the above marked documents, the Tribunal had awarded a sum of Rs.4,77,915/- together with interest at the rate of 6% per annum from the date of filing the claim petition till the date of payment of compensation. The break-up of compensation is as follows:- Rs.3,45,600/- (Rs.6,000/ x 30/100 x 12 x 16) towards loss of income due to disability; Rs.50,315/- towards medical expenses; Rs.50,000/- towards pain and suffering; Rs.30,000/- towards extra nourishment; Rs.2,000/- towards transport expenses; 9.Aggrieved by the said award and decree, the appellant has filed the above appeal to scale down the compensation. https://hcservices.ecourts.gov.in/hcservices/ 10.Not being satisfied with the said award, the claimant has filed the Cross Objection No.155 of 2010 for additional compensation a sum of Rs.2,00,000/- with interest. 11.The learned counsel for the Insurance Company argued that the Tribunal had adopted the multiplier method in this case is not appropriate. The negligence was committed by the driver of the mini-door tempo, as such the contributory negligence is attributed. The doctor had assessed the disability as 75% is also on the higher side. 12.Learned counsel for the claimant argued that the claimant's age was 35 years and he was engaged in the silk cotton business and his income was Rs.10,500/- per month. After the accident, he is unable to perform his business, since his left leg was amputated upto knee level. This disability is of a permanent nature, hence, the Tribunal had adopted the multiplier method and awarded the compensation besides the Tribunal had not considered compensation under the head of attender charges, loss of income during the medical treatment period and loss of amenities and permanent discomfort. 13.In view of the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award passed by the learned Motor Accidents Claims Tribunal, this Court is of the considered opinion that the claimant's left leg was amputated upto knee level at the middle age of 35 years and he being a business person, the amputation is a permanent discomfort, therefore, considering the amputation and Disability and income of the claimant, the compensation amount a sum of Rs.4,77,915/- is not on the higher side. Therefore, this Court confirms the same, hence the appeal filed by the Insurance Company is not maintainable and hence dismissed. The claimant's cross objection for enhanced compensation is also not maintainable, since the Tribunal had awarded an adequate compensation to the claimant. Therefore, the award passed by the Tribunal is confirmed as it is found to be fair and justifiable in this amputation case. 14.On 19.03.2008, this Court imposed a condition on the appellant / National Insurance Company Limited, to deposit the entire compensation amount together with accrued interest and costs to the credit of M.C.O.P.No.246 of 2004 on the file of the Motor Accidents Claims Tribunal, Sub Court, Bhavani. Now, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon lying in the credit of M.C.O.P.No.246 of 2004 on the file of the Motor Accidents Claims Tribunal, Sub Court, Bhavani, after filing a Memo along with this order. https://hcservices.ecourts.gov.in/hcservices/ 15.Resultantly, the above Civil Miscellaneous Appeal is filed by the appellant/National Insurance Company in C.M.A.No.1022 of 2008 is dismissed and the Cross Appeal filed by the claimant in Cross Objection No.155 of 2010 is also dismissed. Consequently, the award and decree passed by the learned Motor Accident Claims Tribunal, Sub Court, Bhavani, made in M.C.O.P.No.246 of 2004, dated 11.09.2006 is confirmed. Connected miscellaneous petition is closed. There is no order as to costs. r n s Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Sub Court, The Motor Accidents Claims Tribunal, Bhavani, Erode District. + 1 cc to Mr. N. B. Surekha, Advocate SR No.24234 + 1 cc to Ma. P. Thangavel, Advocate SR No.24452 MG(CO) SR/8.6.2011 C.M.A.NO.1022 OF 2008 & CROSS OBJECTION NO.155 OF 2010 https://hcservices.ecourts.gov.in/hcservices/