Icici Lombard General Insurance Company Limited, v. R.Nehru

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.10.2024 CORAM

THE HON'BLE MR.JUSTICE SUNDER MOHAN and Cross. Objection (MD)No.17 of 2024 and C.M.P.(MD)No.4745 of 2024 In C.M.A.(MD)No.350 of 2024: ICICI Lombard General Insurance Company Limited, through its Divisional Manager, having it office at D.No.755-A, I Floor, Tirupura Arcade, Tiruvendrum High Road, Palayamkottai, Tirunelveli – 627 002.

... Appellant Vs.

1.R.Nehru, Kutti @ Shanmugam (died),

2.Sakthi Prakash,

... Respondents Prayer: Civil Miscellaneous Appeals filed Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 13.09.2023 passed in M.C.O.P.No.49 of 2017, on the file of the Motor Accidents Claims Tribunal/Subordinate Court, Sankarankovil, Tirunelveli. Page No. 1 of 10 For Appellant : Mr.V.Muthu Kamatchi For Respondents for R1 : Mr.D.Siva raman for R2 : Dispensed with In Cross Objection (MD)No.17 of 2024: R.Nehru ... Appellant vs.

¶1ICICI Lombard General Insurance Company Limited, through its Divisional Manager, having it office at D.No.755-A, I Floor, Tirupura Arcade, Tiruvendrum High Road, Palayamkottai, Tirunelveli – 627 002. Kutti @ Shanmugam (died),

2.Sakthi Prakash,

... Respondents Prayer: Cross Objection filed under Order XLI Rule 22 of C.P.C against C.M.A(MD)No.350 of 2024 filed by the first respondent herein. For Appellant : Mr.D.Siva raman For Respondents for R1 : Mr.V.Muthu Kamatchi for R2 : Dispensed with Page No. 2 of 10 ***** C O M M O N J U D G M E N T The appeal has been filed by the Insurance Company challenging the quantum of compensation awarded by the Tribunal. The

Cross Objection has been filed by the claimant/first respondent seeking enhancement of the compensation.

¶2For the sake of convenience, the parties are referred to as per their ranking in C.M.A.(MD)No.350 of 2024.

¶3The first respondent filed a claim petition before the Tribunal stating that while he was riding a motor cycle, he stopped the motor cycle on the left side of the road to talk to his friend; that at that time, a car insured with the appellant bearing registration No.TN-79-B-1071 came in a rash and negligent manner and dashed against him, as a result of which he sustained grievous injuries.

¶4The owner/driver of the car filed a counter stating that the averments in the claim petition are false; and that in any case the Page No. 3 of 10 compensation claimed was excessive.

¶5The appellant filed a counter stating that the driver of the insured vehicle did not have a valid licence and therefore, they are not liable to pay any compensation.

¶6Before the Tribunal, the first respondent/claimant examined himself as P.W.1 and the doctor as P.W.2 and marked Exs.P1 to P17. The appellant examined R.W.1 and R.W.2 and marked Ex.R1. The disability certificate issued by the doctor was marked as Ex.C1.

¶7The Tribunal, after taking into consideration the oral and documentary evidence, held that the accident took place only due to the negligence of the driver of the insured vehicle and directed the appellant to pay compensation of Rs.7,10,700/- under various heads.

¶8The learned counsel for the appellant submitted that the compensation awarded by the Tribunal is excessive inasmuch as a sum of Rs.2,50,000/- was awarded towards pain and sufferings and the compensation under the other heads is also excessive. Page No. 4 of 10

¶9The learned counsel for the first respondent/cross-objector submitted that he is a practising lawyer and he had suffered loss of income for more than six months and the income adopted by the Tribunal at Rs.12,000/- p.m. is meagre; and that no compensation was awarded under the head 'future medical expenses' and therefore, the compensation is to be enhanced.

¶10Since the appeal and the cross-objection are with regard to the quantum of compensation, notice to the second respondent is dispensed with.

¶11The only point for consideration in the instant appeal is 'whether the compensation awarded by the Tribunal is just and reasonable?'

¶12The disability certificate-Ex.C1 would show that the first respondent had suffered disability to the extent of 30%. The finding of the Tribunal by adopting percentage method cannot be faulted as the first respondent had not established that he had suffered functional disability. This Court is of the view that since the accident is of the year 2017, the Page No. 5 of 10 first respondent would be entitled to Rs.6,000/- for a percentage of disability. Hence, the compensation under the head 'partial permanent disability' is enhanced to Rs.1,80,000/- (30% x Rs.6,000/-).

¶13The Tribunal had awarded the compensation of Rs.2,50,000/- under the head 'pain and sufferings'. Considering the nature of the injuries, namely, the first respondent had suffered bimaleolar fracture

(RT) and the disability percentage is 30%, this Court is of the view that the compensation under the head 'pain and sufferings' at Rs.2,50,000/- is excessive and it would be just and reasonable to award Rs.1,50,000/- under the head 'pain and sufferings'.

¶14The evidence of the doctor-PW.2 would show that while conducting surgery for treatment of the fracture, plates and screws were fixed; that if the first respondent wishes to remove the plates and screws, one more surgery has to be conducted; and that the first respondent would also require physiotherapy. The first respondent has not produced any proof as regards the expenses for the surgery for removal of the plates and screws. Considering the above facts, this Court is of the view that it would be just and reasonable to award Rs.50,000/- under the head 'future medical expenses'. Page No. 6 of 10

¶15The first respondent would establish that he was a practising lawyer with 30 years experience. Hence, the income fixed by the Tribunal at Rs.12,000/- p.m. is very low. Considering the age of the first respondent and the fact that he is practising as a lawyer and he could not pursue his profession for six months, this Court is of the view that a sum of Rs.1,80,000/- can be awarded towards 'loss of income'. Thus, the award is modified as follows: Sl. Description Amount awarded by the Tribunal Amount awarded by this Court Award confirmed, enhanced or granted Partial

Permanent Disability Rs.1,50,000/- Rs.1,80,000/- Enhanced Pain and sufferings and mental agony Rs.2,50,000/- Rs.1,50,000/- Reduced Attendant

charges/ bystander charges Rs. 25,000/- Rs. 25,000/- Confirmed Transport charges Rs. 25,000/- Rs. 25,000/- Confirmed Nutrition charges Rs. 25,000/- Rs. 25,000/- Confirmed Medical expenses Rs.1,50,700/- Rs.1,50,700/- Confirmed Loss of income Rs. 72,000/- Rs.1,80,000/- Enhanced Loss of amenities Rs. 10,000/- Rs. 10,000/- Confirmed Damages to clothes Rs. 3,000/- Rs. 3,000/- Confirmed 10 Future medical expenses --- Rs. 50,000/- Granted Total Rs.7,10,700/- Rs.7,98,700/- Enhanced by Rs.88,000/- Page No. 7 of 10

¶16The Tribunal found that the appellant has established that the driver of the vehicle did not have a valid licence and hence, directed the appellant to pay the compensation at the first instance and then recover it from the second respondent in the appeal/owner of the vehicle. Since the said finding is not under challenge, the same is confirmed.

¶17The appellant/Insurance Company is directed to deposit the enhanced award amount of Rs.7,98,700/- (Rupees Seven Lakhs Ninety Eight Thousand and Seven Hundred only), together with interest at 7.5% p.a. per annum from the date of the claim petition till the date of realization and proportionate costs, less the amount already deposited, if any, within a period of four (4) weeks from the date of receipt of a copy of this order.

¶18On such deposit, the first respondent/claimant is permitted to withdraw the award amount with interest and costs, less the amount already withdrawn, if any, by filing appropriate application before the Tribunal. The first respondent/claimant is directed to pay the necessary Court Fee, if any, on the enhanced amount. Page No. 8 of 10

¶19In the result, this Cross-Objection is partly allowed and this Civil Miscellaneous Appeal is dismissed. No costs.

14.10.2024 Index: Yes/ No NCC: Yes / No Speaking Order / Non-Speaking Order apd To:

1.The Motor Accidents Claims Tribunal/Subordinate Judge, Sankarankovil, Tirunelveli.

2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai. Page No. 9 of 10 C.M.A.rMi)oNo.a50oofo2024 oSUNDERoMOHANoo,oJo. apd C.M.A.(MD)oNo.350oofo2024 and Cross.oObjectiono(MD)No.17oofo2024 and C.M.P.(MD)No.4745oofo2024 o14.10.2024 PageoNo.o10oofo10