Madras High Court
United India Insurance Co. Ltd vs R.Senthil Kumar on 4 April, 2019
Author: V.M.Velumani
Bench: V.M.Velumani
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.04.2019
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1638 of 2019 and
C.M.P.No.4773 of 2019
United India Insurance Co. Ltd.,
No.64, Armenian Street, Chennai - 600 001. .. Appellant
Vs.
1.R.Senthil Kumar
2.R.Raja .. Respondents
(R2 remained exparte before Tribunal)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the Judgment and Decree dated
15.04.2013 made in M.C.O.P.No.4429 of 2007 on the file of Motor
Accidents Claims Tribunal, II Small Causes Court, Chennai.
For Appellant : Mr.M.J.Vijayaraaghavan
For R1 : Mr.A.A.Venkatesan
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award dated 15.04.2013 made in M.C.O.P.No.4429 of 2007 on the file of Motor Accidents Claims Tribunal, II Small Causes Court, Chennai. http://www.judis.nic.in 2
2.The appellant is the second respondent in M.C.O.P.No.4429 of 2007 on the file of Motor Accidents Claims Tribunal, II Small Causes Court, Chennai. The first respondent filed the above said claim petition claiming a sum of Rs.7,50,000/- as compensation for the injuries sustained by him in the accident that took place on 19.09.2007.
3.The Tribunal considering the pleadings, oral and documentary evidence held that the accident occurred only due to rash and negligent driving by the driver of the lorry belonging to the second respondent and directed the appellant-Insurance Company, being the insurer of the vehicle to pay a sum of Rs.4,94,800/- as compensation to the first respondent.
4.Challenging the said award dated 15.04.2013 made in M.C.O.P.No.4429 of 2007, the appellant has come out with the present appeal, challenging the quantum of compensation.
5.The learned counsel appearing for the appellant-Insurance Company contended that the Tribunal erred in awarding compensation by applying multiplier method and erred in awarding a sum of Rs.2,04,000/- for removal of organ. In addition to that, the Tribunal http://www.judis.nic.in 3 erroneously awarded a further sum of Rs.1,00,000/- towards 50% disability. Though raised various grounds, he contended that he is questioning the compensation of Rs.2,04,000/- for removal of organ. He relied on the judgment of this Court reported in 2004 (1) TNMAC 89 (DB) [Ravichandran Vs. The Managing Director, Pallavan Transport Corporation Ltd., Chennai - 600 002], wherein in paragraph 12 it has been held as follows:
"...12.It may be a person can survive even without a spleen. But one thing is clear thta it is performing various functions in the human body system. In fact, according to Dorland's Medical Dictionary, it has other important functions and the full scope of which is not entirely determined."
He relied on the above judgment and contended that Division Bench of this Court held that removal of spleen will not amount to functional disability. The Tribunal erred in awarding compensation by adopting multiplier method and prayed for setting aside the award passed by the Tribunal.
6.Per contra, the learned counsel appearing for the first respondent contended that the first respondent suffered grievous injuries in the accident and one of the organ viz., spleen was removed due to the injuries suffered by him. He suffered functional disability and http://www.judis.nic.in 4 he could not do the work as he was doing earlier. The first respondent examined three doctors as P.W.2 to P.W.4 and proved the nature of injuries, removal of organ and disability suffered by him. The Tribunal considering the evidence of P.W.2 to P.W.4/Doctors and disability certificate, awarded compensation under different heads which are not excessive and relied on the judgment reported in 2013 (2) TNMAC 436 [Royal Sundaram Allianz General Insurance Co. Ltd., Vs. Ramasamy and another], wherein in paragraphs 9 to 11 it has been held as follows:
"...9.The function of the Spleen as per Medical text is as follows:
"Human spleen: function, body location, diseases The human spleen is an organ that creates lymphocytes for the destruction and recycling of old red-blood cells. The spleen is also a blood reservoir. It supplies the body with blood in emergencies such as a bad cut. The spleen is also the location where while blood cells trap organisms".
10.In National Insurance Co. Ltd., Salem V. A.Marimuthu and another, 2011 (1) TN MAC 729, similar to the case on hand, the injured a photographer therein sustained complex fracture in the left hand, chest ribs, damage to spleen, fracture in left humerus and 7th & 8th rib of left side rib cage, and assessed to have suffered 50% disablement by the Doctor. The Tribunal accepted the extent of disablement. After fixing the monthly Income at Rs.3,000/- and applying 15 multiplier, awarded Rs.2,70,000/- for 50% disablement. When the application of multiplier http://www.judis.nic.in 5 method was challenged among other grounds, considering the nature of injuries, seriousness of fracture in the ribs, removal of spleen and the accelerated complications on account of removal of spleen and following the guidelines contained in the Division Bench judgment of this Court in United India Insurance Co. Ltd., V. Veluchamy, 2005 (1) TN MAC 87 (DB), a learned Judge of this Court has computed the quantum of compensation under the following heads:
1.Loss of Income & Disability I(a) Loss of Earning Capacity for disability assessed at 50%
2.Pain and Sufferings
3.Medical Bills, Transport and Extra-Nourishment
4.Attender Charges
5.Loss of Income during the period of treatment and convalescence for the period of six months.
In the above case, considering the rate of interest prevalent, the same has been reduced to 7.5% per annum from 9% per annum.
11.In the light of the above decisions, this Court is of the view that no manifest illegality has been committed by the Claims Tribunal in awarding Compensation both under the head Loss of Income during the period of treatment and Disability, taking into consideration the extent of disablement assessed by the Doctor, taking into consideration the extent of disablement assessed by the Doctor.
Considering the over all facts and evidence of the case on hand, the judgment in B.Kothandapani V.Tamil Nadu State Transport Corporation Ltd., 2011 (2) TN MAC 62 (SC), stated supra is squarely applicable to the facts of this case and therefore, the payment of Disability Compensation cannot be said as double Compensation warranting and reduction. Quantum of Compensation awarded under various heads by the Claims Tribunal to a young man cannot be said to be excessive or a bonanza or for the matter that it is an unjust http://www.judis.nic.in 6 enrichment for the suffering for the rest of his life time. Hence, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed." He then relied on the judgment dated 05.06.2017 made in C.M.A.Nos.1627 to 1629 of 2017 [The New India Assurance Co. Ltd., Vs. V.Sangita and another], wherein in paragraph 13 held as follows:
"...13.On analysis of the medical reports and evidence of P.W.2, the Doctor who examined the injured, the Claims Tribunal held that due to the grievous injury in stomach, spleen was removed, liver was sutured and that she had takenn conservative treatment for fractured bones at Lotus Hospital, Erode from 24.06.2007 to 30.06.2007 and at Sundaram Medical Foundation, Anna Nagar, Chennai from 30.06.2007 to 16.07.2007. Following the judgment of Madhya Pradesh High Court inn Shailja Timoti Vs. Sabhan Khan, reported in 2008 ACJ 2221, awarded a sum of Rs.2,00,000/- for removal of spleen. Injured being a housewife, the Tribunal has computed the loss of future earning at Rs.91,800/- by fixing the monthly income as Rs.3,000/- and adopting multiplier method. As the injured herself has admitted that the medical expenses were reimbursed by the employer of her husband, the Tribunal has rightly denied the claim towards medical expenses. Award of Rs.2,000/- towards extra nourishment and Rs.10,000/- towards pain and suffering, appears to be disproportionate to the surgeries and treatment underwent by the injured. Tribunal has awarded only Rs.5,000/- for transportation. The overall compensation http://www.judis.nic.in 7 Rs.3,08,800/- awarded to the injured/claimant, who has suffered the grievous injuries, in our opinion, cannot be said to be on the higher side."
and held that the Division Bench of this Court has awarded a sum of Rs.2,00,000/- towards removal of spleen in the above judgment and prayed for dismissal of the appeal.
7.I have heard the learned counsel for the appellant as well as the first respondent and perused entire materials on record.
8.From the materials available on record, it is seen that three Doctors as P.W.2 to P.W.4 have deposed about the nature of injuries sustained by the first respondent and the treatment taken by him and percentage of disability suffered by him. Doctors have deposed that the first respondent could not do the work as he was doing earlier. The contention of the learned counsel for the appellant that the Division Bench of this Court in the judgment reported in 2004 (1) TNMAC 89 (DB) [Ravichandran Vs. The Managing Director, Pallavan Transport Corporation Ltd., Chennai - 600 002], held that removal of spleen will not amout to functional disability is not correct. The issue before the Division Bench was not whether the removal of spleen would http://www.judis.nic.in 8 amount to functional disability. The issue before the Division Bench was whether the percentage of disability fixed by the Tribunal are excessive. While considering the said issue, the Division Bench considering the functions of spleen had observed that a person can live without spleen. Taking into consideration, the removal of spleen along with facts of that case, the Division Bench confirmed the percentage of disability fixed by the Tribunal. The judgment relied on by the learned counsel for the first respondent in C.M.A.Nos.1627 to 1629 of 2017 [The New India Assurance Co. Ltd., Vs. V.Sangita and another], is squarely applicable to the facts of the present case. The Tribunal considering the evidence of three Doctors as P.W.2 to P.W.4, who deposed that first respondent suffered functional disability, applied multiplier method and granted compensation for removal of spleen. There is no error in the said finding of the Tribunal warranting interference by this Court.
9.In the result, this Civil Miscellaneous Appeal is dismissed and the award passed by the Tribunal is hereby confirmed. The Appellant- Insurance Company is directed to deposit a sum of Rs.4,94,800/- awarded by the Tribunal as compensation to the respondent, along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. http://www.judis.nic.in 9 On such deposit, the first respondent is permitted to withdraw the award amount along with interest and costs, after adjusting the amount already withdrawn, if any, by making necessary applications before the Tribunal. No costs. Consequently, the connected Miscellaneous Petition is closed.
04.04.2019
krk
Index : Yes
Internet : Yes
To
1.The II Judge,
Motor Accidents Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
http://www.judis.nic.in
10
V.M.VELUMANI, J.,
krk
C.M.A.No.1638 of 2019 and
C.M.P.No.4773 of 2019
04.04.2019
http://www.judis.nic.in