C.M.A.No.2297 of 2021

THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.11.2023

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

AND

THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR

C.M.A.No.2297 of 2021

K.Sundar @ Krish Sundar

...Appellant

Vs.

1.Nalini Wilson

2.ICICI Lombard General Insurance Company Ltd.,

No.140, Chotabai Centre, II Floor,

Nungambakkam High Road,

Chennai - 600 034.

...Respondents

Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor

Vehicles Act, 1988, against the judgment and decree dated 02.07.2020 made

in MACTOP.No.6025 of 2014 on the file of the Motor Accident Claims

Tribunal, II-Court of Small Causes, Chennai.

For Appellant

: Mr.A.G.F.Terry Chella Raja

For Respondents

: Mr.B.Sivakolappan for R2

R1 - Notice - Dispensed with

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C.M.A.No.2297 of 2021

J U D G M E N T

(Judgment of the Court was made by R.SUBRAMANIAN, J.)

The injured claimant is the appellant. Challenge is to the award of

a sum of Rs.5,07,453/- as compensation for the injuries suffered by him in

the motor accident that occurred on 19.03.2014. According to the claimant,

when he was travelling in the car bearing Registration No.TN-06-Q-1000

belonging to his employer from Chennai to Bangalore near Burgur, a Cow

crossed the road, due to which, the driver who drove the vehicle in a rash

and negligent manner applied sudden break, resulting in the car capsizing

and dashing against the rock on the road side. As a result of the accident,

the claimant suffered multiple injuries and was rendered paraplegic.

Contending that the rash and negligent driving of the driver of the car was

cause for the accident, the claimants sought for a compensation of

Rs.50,00,000/-.

2.The quantum was sought to be supported by the pleading that

the claimant, who holds Diploma in Hotel Management and Catering was

working as a Marketing Head with a Resort in Mahabalipuram and was

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C.M.A.No.2297 of 2021

earning a sum of Rs.45,000/- per month. According to the claimant, he had

lost his job and he cannot do any other work and therefore, the functional

disability as a result of the accident was assessed at 100%.

3.The Insurance Company resisted the claim contending that the

accident did not occur in the manner as suggested by the claimant. The age,

occupation and monthly income of the claimant were denied and the

claimant was put to strict proof of the same. It was also contended that the

disability claimed is not 100% and therefore, the claimant would not be

entitled to compensation on the basis of the multiplier method, since there is

no functional disability.

4.On the above pleading, the Tribunal framed the necessary

issues. At trial, before the Tribunal, P.W.1 to P.W.4 were examined on the

side of the petitioner and Exs.P1 to P34 were marked. There was no

evidence let in on the side of the respondent / Insurance Company. The 1st

respondent / owner of the vehicle remained absent. In support of the

disability, the claimant relied upon Ex.P-34, disability certificate issued by

the Peripheral Hospital. The Tribunal, refused to take the same into account

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C.M.A.No.2297 of 2021

and required the petitioner to appear before the Medical Board. Since the

petitioner did not co-operate and did not chose to appear before the Medical

Board, the Tribunal rejected Ex.P-34, the disability certificate issued by the

Peripheral Hospital and assessed the disability at 40%.

5.The Tribunal also found that there was no functional disability

and therefore, the claimant would not be entitled to compensation on the

basis of the multiplier method. The Tribunal granted a sum of Rs.1,20,000/-

as compensation for the disability on the ground that the claimant had

suffered disability of 40%, it calculated at Rs.3,000/- per percentage of

disability and arrived the total compensation