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2021 Supreme(Mad) 1128

IN THE HIGH COURT OF JUDICATURE AT MADRAS
SATHI KUMAR SUKUMARA KURUP, J.
National Insurance Company Ltd. - Appellant
Versus
K. Saravanan S/o. Kumaraiah & Ors. - Respondents
C.M.A. Nos. 2985 of 2011 & 2860 of 2012
Decided On : 21-04-2021

Advocates Appeared:
Mr. K. Suryanarayanan, Mr. S. Vadivel.

Headnote:

Motor Accidents Claims - Seeking enhancement - Fair and decretal order - When claimant was riding a motor cycle bearing Registration and proceeding from along Trunk Road and near the bus belonging to the first respondent bearing Registration came in a rash and negligent manner and knocked down the two wheeler driven by the claimant, as a result of which, the claimant sustained the following injuries Bilateral external Iliac vein with injury right internal Iliac vein injury - claimant underwent surgeries on both thighs and legs - Doctor who had assessed his injuries had issued disability certificate wherein it has been mentioned as 70% disability suffered by the claimant - At the time of accident, the claimant was employed as System Administrator in Roverco Apparel Company and was earning per month - After discharge from hospital, due to the injuries and disability, he could not attend his work subsequently he resigned - First respondent remained ex-parte before the Tribunal – Held, In light of the above discussion that the second respondent/Insurance Company having not attempted to initiate the criminal proceedings regarding the fake insurance policy which causes loss to the second respondent/Insurance Company - Also vehicle owners are cheated and the second respondent/Insurance Company had not taken effective steps to find out the culprits involved in cheating – Submissions of the learned counsel for the Insurance Company/second respondent to set aside the award cannot be accepted - Therefore submissions of learned counsel for the Insurance Company/second respondent the appellant in CMA is rejected - Appeal is partly allowed

Judgement Key Points

Key Points: - Claimant injured in motorcycle accident caused by negligent bus driver, sustaining severe injuries including 70% permanent disability [21001392520017][21001392520001] - Tribunal awarded compensation but used percentage method instead of multiplier for disability; claimant appealed for enhancement (!) [21001392520006] - Insurance company claimed policy was fake, but failed to examine investigator or lodge criminal complaint; Tribunal and High Court rejected this defense [21001392520009][21001392520014] - High Court applied multiplier of 17 to claimant's monthly salary of Rs.8,250, awarding Rs.16,83,000 for loss of income due to disability [21001392520010] - Additional Rs.50,000 awarded for loss of marriage prospects due to disability, relying on Supreme Court precedent [21001392520011] - Claimant's appeal (CMA 2860/2012) partly allowed, enhancing total compensation to Rs.24,12,340; Insurance company's appeal (CMA 2985/2011) dismissed [21001392520015][21001392520016] - Insurance company directed to deposit enhanced amount with 7.5% interest within 8 weeks (!)

What is the effect of an insurance company's failure to initiate criminal proceedings on its defense of a fake insurance policy in a motor accident claim?


JUDGMENT :

(This case has been heard through video conference)

These Civil Miscellaneous Appeals have been filed challenging the fair and decretal order dated 09.04.2011 passed in MCOP.No.5414 of 2004 by the Motor Accidents Claims Tribunal, III Judge, Small Causes Court, Chennai.

2. The case in brief is as follows:

On 11.09.2004 at 5.10 p.m., when the claimant was riding a motor cycle bearing Registration No.TN-32-B-8031 and proceeding from Karapakkam to Chennai along Poonamallee Trunk Road and near the Porur Roundtana, the bus belonging to the first respondent bearing Registration No. TN-02-C-4777 came in a rash and negligent manner and knocked down the two wheeler driven by the claimant, as a result of which, the claimant sustained the following injuries (1) Bilateral external Iliac vein with injury right internal Iliac vein injury. (2) Perineal laceration with sphincteric tear (3) Degloving injury to shaft of penis and scrotum (4) Extraperitoneal urethral injury and bladder injury (5) Extensive laceration over lower abdominal wall and both upper thighs (6) Open pelvic fracture type B with bladder injury and anus injury (7) Posterior condyle fracture right femur (8) Fracture neck of fibula right side (9) Lumbosacral plexus injury more on right side (10) Closed degloving injury of right thigh. The claimant underwent surgeries on both thighs and legs. The Doctor who had assessed his injuries, had issued disability certificate, wherein it has been mentioned as 70% disability suffered by the claimant. At the time of accident, the claimant was employed as System Administrator in Roverco Apparel Company and was earning Rs.8250/- per month. After discharge from hospital, due to the injuries and disability, he could not attend his work, subsequently he resigned. The first respondent remained ex-parte before the Tribunal.

3. Mr. K. Suryanarayanan, learned counsel for the appellant/claimant has submitted his arguments. As per his submissions, the claimant had examined himself as P.W.1 and had marked documents Exs.P.1 to P.34 regarding the contentions in the claim petition. The second respondent/Insurance Company denied the contents in the claim petition but during evidence, the manager of the second respondent/Insurance Company was examined as R.W.1 and Exs.R1 to R4 were marked and the Administrative Officer of the Cuddalore Branch of the second respondent/Insurance Company was examined as R.W.2 and Exs.R5 to R8 were marked. The contention of the learned counsel for the second respondent and the evidence was that the policy taken by the first respondent was a fake one. Therefore, the second respondent/Insurance Company is not liable. The Tribunal had rejected the contention of the learned counsel for the second respondent/Insurance Company stating that the vehicle number was provided in the claim petition and the policy number was also referred in the claim petition and the same had been referred by the Motor Vehicle Inspector during the vehicle inspection. Therefore, the contention of the learned counsel for the second respondent/Insurance Company was not considered by the Tribunal while calculating the compensation for 70% disability. If Rs.2,000/- is taken as compensation for each percentage, for 70%, it is Rs.1,40,000/- (70%x2000=1,40,000). Therefore, the award amount arrived at was on the lower side. That is why the claimant has approached this Court seeking enhancement. This is a fit case for grant of compensation adopting the multiplier system. The claimant as P.W.1 had stated in his evidence, he is unable to perform his work due to the partial permanent disability. In such circumstances, adopting multiplier method would only render justice to the claimant/appellant herein. He had relied on the reported Rulings of the Hon'ble Supreme Court reported in 2011 (1) SCC 343 (Raj Kumar Vs. Ajay Kumar & Anr).

3 (a). The learned counsel f

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