The Branch Manager Cholamandalam Vs. Krishnan & Another

1. The unsuccessful Insurance Company has preferred this appeal, challenging the negligence and quantum of compensation awarded by the Tribunal in M.C.O.P.No.724 of 2015, dated 25.09.2020.

2. As per the claim petition filed by the claimant, on 20.01.2013 at about 19.30 hours, the claimant was working in the lands of Vijayamma at Agara Agraharam and at that time, the driver of the Mahindra Pick-up van bearing Registration No.KA-53-5386, which came there for loading the raddish (Mullangi in Tamil) vegetable, drove the same in the reverse direction in a rash, reckless and negligent manner and dashed against the claimant, who was standing on the mud road. Due to the impact, the claimant suffered head injury and other multiple and grievous injuries all over his body. Immediately after the accident, he was taken to Government Hospital, Hosur for treatment. After the first-aid treatment, the claimant was taken to Government Hospital, Dharmapuri and thereafter to Govt Headquarters Hospital at Salem and he was admitted there as an in-patient.

3. It is the further claim of the claimant that he was aged about 50 years at the time of accident and he was doing agricultural work. It is stated that he was earning not less than Rs.15,000/- per month and due to the accident, he is unable to do previous work of Mason. The first respondent before the Tribunal is the owner of the offending vehicle and he was called absent and therefore, set ex-parte.

4. The second respondent-Insurance Company before the Tribunal, had filed counter statement and stated that they did not admit any of the allegations made in the claim petition. The Mahindra Max bearing Registration No.KA-53-5386 was insured with the second respondent-Insurance Company and the alleged time is subject to verification of the final report in original. The second respondent denied the manner and cause of the alleged accident. It was also stated that while the driver of the above-said Mahindra Max vehicle was driving slowly and carefully in the Jayamma Thottam in Agara Agraharam, by following the traffic Rules, and when the claimant was standing on the side of the road, on seeing the vehicle, nearing him, he himself swerved and fell down and he himself sustained the injuries. The claimant himself had involved in the accident. The second respondent before the Tribunal, is not at all responsible in any way to pay compensation to the claimant.

5. On the side of claimant, P.W.1 (claimant) was examined and Exs.P-1 to P-6 were marked. On the side of the respondent, D.Ws.1 and 2 were examined and Exs.R-1 to R-4 were marked. The disability certificate was marked as Ex.C-1 and C.W.No.1 was examined.

6. Upon appreciation of evidence adduced on both sides, the Tribunal came to the conclusion based on the deposition of P.W.1 holding that during the course of cross-examination, the appellant herein/respondent therein has not specifically denied the manner of the accident and concluded that the driver of the offending vehicle drove the vehicle in the reverse direction in a rash and negligent manner and hit against the claimant. Therefore, the claimant sustained injuries in the said accident.

7. With regard to the quantum of compensation, the claimant appeared before the Medical Board, which has duly assessed the injuries sustained by him and issued Ex.C-1 disability certificate and the Medical Board assessed that the claimant sustained 15% partial permanent disability. Though the claimant has stated that he was earning Rs.15,000/- per month as an agriculturist and in the absence of proof for the same, the Tribunal has fixed Rs.7,000/- as the notional income. Considering the fact that due to the injuries sustained by the claimant, he could not continue his job as before, the Tribunal adopted the multiplier method (multiplier 11) and awarded Rs.1,84,800/- under the head "loss of income". The Tribunal has already awarded compensation in the other heads as follows:

(i) Pain and suffering Rs.30,000/-

(ii) Transport expenses Rs.15,000/-

(iii) food nourishment Rs.10,000/-

(iv) loss of properties during

the accident, including

the other expenses: Rs.5,000/-

The Tribunal thus awarded Rs.2,44,800/- as the total compensation. Aggrieved by the Award of the Tribunal regarding the negligence and quantum arrived at therein by the Tribunal, the Insurance Company had preferred this appeal.

8. Learned counsel for the appellant/Insurance Company submitted that the Tribunal has failed to appreciate the Police officer's evidence and due investigation was conducted and the Police have closed the FIR as a mistake of fact and concluded that the claimant himself fell down. The Tribunal has also failed to consider the evidence of R.Ws.1 and 2 along with Ex.R-3 investigation report and Ex.R.4 MVI's report, which reveals that the accident had occurred due to the negligence on the part of the claimant himself.

9. The learned counsel for the appellant/Insurance Company further submitted that the Tribunal has adopted the multiplier method, in the absence of proof for functional disability and the Tribunal ought to have adopted the multiplier method instead of % method. There is no specific evidence regarding the fact that due to the accident only, he has sustained injuries, which affects his day-to-day activities and it has been only caused as functional disability. The compensation awarded by the Tribunal in the other heads, are on the higher side and the learned counsel prayed to reduce the same.

10. Learned counsel for the appellant further submitted that the Tribunal has grossly erred in fastening the entire liability on the part of the appellant/Insurance Company and the accident had occurred due to the negligence on the part of the claimant himself.

11. Despite the newspaper publication effected on the respondents, the respondents have not chosen to appear either through a counsel or by appearing in person.

12. This Court considered the submissions made by the learned counsel for the appellant/Insurance Company and perused the materials available on record.

13. According to the appellant/Insurance Company, while the driver of the offending vehicle was driving the vehicle, in the Vijayamma's lands at Agara Agraharam, the claimant who was standing on the side of the road, on seeing the vehicle nearing him, he himself swerved and fell down and he himself sustained injuries. Therefore, the claimant himself is involved in the accident.

14. Further, according to the claimant, on 20.01.2013 at about 19.30 hours, he was working in the lands of one Vijayamma at Agara Agraharam, at that time, the driver of the offending vehicle came in a rash and negligent manner, while he was loading radish (Mullangi) vegetable and drove the vehicle in reverse direction in a rash and negligent manner and had dashed on the claimant who was standing on the road. In order to prove the manner of the accident, the claimant examined himself as P.W.1 and he has narrated the accident as stated in the claim petition. In order to disprove the manner of the accident, the appellant herein had also examined R.W.1 Police Officer and R.W.2 official of the Transport Corporation and filed Ex.R-3 investigation report and Ex.R-4 motor vehicle inspection report. During the course of cross-examining the injured P.W.1, nothing has been elicited as against the manner of the accident narrated by the injured-claimant.

15. It is pertinent to note that the driver of the offending vehicle has not appeared before the Tribunal and did not enter into the witness box to deny the accident in the manner it had occurred and to establish the fact that he was driving the vehicle only slowly and carefully and the claimant who was standing on the road side, and on seeing the vehicle coming near to him, he himself swerved and fell down and he himself sustained injuries and the claimant alone is involved in the accident.

16. In the absence of examining any witness on behalf of the Insurance Company, either examination of the driver of the vehicle or the independent witness, the Tribunal has rightly come to the conclusion that only due to the rash and negligent act of the driver of the offending vehicle, the accident had occurred.

17. With regard to the quantum of compensation awarded by the Tribunal, a perusal of Ex.C-1 disability certificate by the Medical Board, wherein it has been stated that there is 15% partial permanent disability on the claimant, there is no evidence regarding the injuries sustained by the injured-claimant, which has an effect on his day-to-day activities and there is functional disability of his entire body. In the absence of examining any medical evidence and records, the Tribunal ought not to have adopted the multiplier method for calculating the compensation based on the disability suffered by the claimant.

18. This Court is of the view that in the absence of proof for functional disability, this Court is inclined to adopt " % " method and considering the fact that the accident had taken place on 20.01.2013. Upon consideration of Ex.C-1 and the evidence of C.W.1, this Court is inclined to adopt 15% towards partial permanent disability. Therefore, Rs.75,000/- (5000 x 15%)

19. With regard to the compensation awarded by the Tribunal under the other heads and a perusal of Ex.P-3 case sheet issued by the Government Hospital, Salem, which shows that the claimant had sustained multiple injuries, i.e., multiple displaced fracture both tempero parietal bone with adjacent scalp contusion, air pockets left parietal region, multiple haemorrhagic contusion in both fronto tempero parietal region and he suffered sutured wound (+) in left enthus of right leg upto ear and right eye periorbital edema (+), Echymosis (+), sutured wound on the right side forehead and face, tendon over maxillary and FTP Clip fracture.

20. This Court, taking into account the age of the injured-claimant that he was 50 years at the time of accident and the nature of the injuries sustained by him, is inclined to award Rs.50,000/- under the head "pain and suffering".

21. As far as the extra nourishment, is concerned, the same is enhanced upto Rs.20,000/-. The compensation awarded under the other heads, are hereby confirmed.

22. In the light of the above discussion, the compensation awarded by the Tribunal is modified as below:

S.No.	Head	Amount
(i)	Partial permanent disability	Rs. 75,000/-
(ii)	Pain and suffering	Rs. 50,000/-
(iii)	Transport expenses	Rs. 15,000/-
(iv)	Food nourishment	Rs. 20,000/-
(v)	Loss of properties during the accident, including other expenses	Rs. 5,000/-

23. In toto, this Court modifies the Award of the Tribunal and grants the total compensation of Rs.1,65,000/-. The appellant/Insurance Company is directed to deposit the amount now awarded as above, less the amount already deposited, with interest @ 7.5% p.a. from the date of filing of the claim petition before the Tribunal, till the modified Award is paid, within a period of six weeks from today and on such deposit, the first respondent/claimant is entitled to withdraw the same after filing appropriate application before the Tribunal.

24. This appeal is partly allowed. There shall be no order as to costs. Consequently, stay petition in C.M.P.No.3132 of 2022 is closed.

The Branch Manager Cholamandalam Vs. Krishnan & Another

Madras High Court

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Judgment Summary

M. JOTHIRAMAN, J.

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