Madras High Court
Sudha vs Selvaraj on 23 June, 2015
Author: N.Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2015
CORAM
THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN
C.M.A.No.830 of 2015
Sudha ... Appellant/Petitioner
vs.
1.Selvaraj
2.Iffco-Tokio General Insurance Company Limited,
Door No.44, 1st Floor,
Gandhi Nagar, 1st Main Road,
Adyar,
Chennai 600 020. ... Respondents / Respondents
Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act against the judgment and decree dated 23.01.2015 and made in MACTOP No.500/2011 on the file of the Motor Accident Claims Tribunal, IV Additional District Judge, Ponneri.
For Appellant : Mr.F.Terry Chellaraja
For Respondents : Mrs.Harini for
M/s.N.Vijayaraghavan
for R2.
JUDGMENT
The appeal has been preferred by the claimant against the award of Rs.1,05,000/- awarded by the tribunal as compensation for the injuries sustained by her in the accident occurred on 21.08.2011.
2. Heard Mr.F.Terry Chellaraja, learned counsel appearing for the appellant/claimant and Mrs.Harini, learned counsel appearing for the second respondent/insurance company.
3. The only question to be decided by this Court is with regard to the quantum of compensation. The claimant sustained injuries while she was travelling as a passenger in Auto which was driven rash and negligently resulting in the accident. She sustained fracture of frontal bone with infra orbital bone, mandile, Rt.para symphysis and Lt. Zygomatic arch. She was admitted in the hospital on 21.08.2011 on which date tracheotomy was done and Craniotomy was done on 27.08.2011. Subsequently, on 02.09.2011, open reduction, internal fixation done for facial bone. On 07.09.2011, the appellant was treated for cut throat injury with vocal chord paralysis.
4. From 09.07.2013 to 30.07.2013, the appellant took treatment for breathlessness and difficulty in swallowing. Because of the above injuries, the claimant is having difficulty in opening and closing of the mouth, restricted jaw movement and due to loss of teeth, deranged occlusion causing mastigatory dysfunction, disfigurement and loss of speech. Therefore, Dr.T.S.Kalkura assessed the disability of hte claimant at 60% and for impaired functional loss of facial bones, 30% disability was assessed, totalling to 90% disability. Though 90% disability has been assessed by the doctor, the whole body disability is assessed by this Court at 60%.
5. It is seen from the records that there is negligence on the part of the counsel who conducted the case before the trial court by not examining the doctor to prove the disability of the claimant. It is ultimately necessary to examine the doctor to assess the disability sustained by the claimant, especially when the claimant suffered injury in the mandible region affecting her speech itself. However, the trial court advocate has not rendered his services properly. Therefore, the claimant was referred to a doctor and the said doctor has given the details of disability on examining the claimant as well as relying upon Ex.P3, discharge summary, Ex.P4 OP Sheet, Exs.P5, P8 and P11 X rays, Ex.P6 Medical prescription and Ex.P7 - CT Scan. Based on the medical report which has been filed by way of an affidavitg sworn by the doctor, this Court determines the disability of the claimant at 60%.
6. The claimant, at the time of accident was working as a tailor and allegedly earning about Rs.15,000/- per month. Considering the fact that the accident occurred in the year 2011 itself, it would be appropriate to determine the monthly income at Rs.5,000/-. Since the age of the claimant was 35 years at hte time of accident, the appropriate multiplier as per Sarla Verma's case (2009 (2) TN MAC 1 (SC) is 16 and the loss of income is calculated as follows -
Rs.5000 x 12 x 16 x 60/100 = Rs.5,76,000/-
7. Considering the injuries sustained by the claimant and also the pain & sufferings now being undergone by the claimant, Rs.50,000/- awarded by the tribunal towards pain & suffering is low and the same is enhanced to Rs.75,000/-. Similarly, Rs.20,000/- each awarded towards transport to hospital and extra nourishment is hereby enhanced to Rs.50,000/- under the head transportation and extra nourishment. This court awards a sum of Rs.75,000/- under the head loss of amenities since no amount was awarded under this head. Similarly, no amount was awarded towards attender charges. Since the appellant was hospitalised for a longer period, a sum of Rs.24,000/- is awarded under this head. Thus, the award of Rs.1,05,000/- is hereby enhanced to Rs.8,00,000/-, break-up as follows -
(1) Loss of income Rs.5,76,000/- (2) Pain & Sufferings Rs. 75,000/- (3) Loss of amenities Rs. 75,000/- (4) Transportation and Extra nourishment Rs. 50,000/-
(5) Attender charges Rs. 24,000/-
-------------------
Total Rs.8,00,000/-
============== Rounded off to Rs.32,00,000/-.
The rate of interest awarded by the tribunal @ 7.5% per annum shall remain unaltered.
8. In the result, the Civil Miscellaneous Appeal is partly allowed enhancing the compensation from Rs.1,05,000/- to Rs.8,00,000/- alongwith interest @ 7.5% per annum from the date of petition till the date of deposit. No costs.
9. The 2nd respondent/insurance company is directed to bring a Demand Draft for the entire compensation amount awarded by this Court, alongwith interest and costs, in favour of the appellant/claimant, on or before 260.07.2015.
10. Post the matter on 27.07.2015 for reporting compliance.
23.06.2015 Index : Yes/No rgr Note: Issue order copy by 26.06.2015 N.KIRUBAKARAN, J.
rgr To The IV Additional District Judge, Motor Accident Claims Tribunal, Ponneri.
C.M.A.No.830 of 201523.06.2015