Madras High Court
Gopal vs Maria Thanga Pushpam on 5 December, 2016
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.12.2016
Coram
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
C.M.A(MD)No.1192 of 2007
Gopal .. Claimant/Appellant
Vs-
1.Maria Thanga Pushpam
2.The Divisional Manager,
New India Assurance Company Limited,
Kovilpatti.
R1-Exparte. .. Respondents/Respondents
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the Judgment and Decree dated 12.03.2007 made in
M.C.O.P.No.775 of 2005, dated 13.2.2007, on the file of the Motor Accident
Claims Tribunal,II Additional District Judge, Tirunelveli.
!For Appellants : M/s.T.Selvakumaran
^For Respondent-1: Exparte
For Respondent-2: M/s.G.Prabhu Rajadurai.
:JUDGMENT
The Civil Miscellaneous Appeal has been preferred by the claimant aggrieved over the quantum of compensation of Rs.80,390/- awarded for the injury sustained by him, in the accident occurred on 11.05.2005 when he was transporting fish by a mini lorry which was driven by its driver rash and negligently, leading to capsizing and sustaining injuries by the appellant. Therefore the present claim petition.
2.On contest, the Tribunal found that the driver of the mini lorry was rash and negligent and awarded a sum of Rs.80,390/- towards compensation. The same is challenged before this Court.
3.Heard Mr.T.Selvakumaran, learned counsel for the appellant and Mr.G.Prabhu Rajadurai, learned counsel for the second respondent.
4.There is no appeal by the Insurance Company with regard to liability and therefore there is no necessity to go into the other issues and the only question is with regard to quantum of compensation. The claimant sustained fracture at the right leg ankle and fracture in the skull. Though P.W.4- Doctor assessed the disability at 55% considering the fracture in the right leg ankle and skull and non-union of ankle bone, fracture and restriction of ankle, knee and foot movement and other things, the Tribunal only determined the disability at 20% stating that P.W.4-Doctor was not the treating Doctor and there was no evidence to show that the Petitioner was taking further treatment after initial treatment. Different nomenclatures has been used with regard to one and the same injury and therefore, the Tribunal determined the disability at 15%, disbelieving P.W.4-Doctor. However, it is seen that there is no contra evidence produced by the Insurance Company to show that the disability sustained by the appellant is only 20%. Further, on appreciation of evidence and also taking into consideration the non-treatment of the claimant subsequently, determined the disability at 15%. Though the approach adopted by the Tribunal is correct, what is important is fracture at the ankle and also in the skull. These are the important parts of the body. The appellant is a fisherman and he used his legs for carrying fish and moving the vehicles and similarly, the skull injury cannot also be ignored. In any event, 55% disability determined by P.W.4-Doctor is on the higher side and 15% of disability determined by the Tribunal is on lower side. Therefore this Court considering the location of the fractures, re-determined the disability at 35%.
5.The Tribunal adopted the multiplier method for arriving at the loss of dependency and the same is not sustainable. Only in the event of inability to do the normal work and it takes away the right of the party from doing normal work, reducing his income or takes away his income, multiplier method has to be adopted. In view of that, multiplier method adopted by the Tribunal is set aside. At the same time, the accident is of the year 2005 and in similar circumstances, this Court in the case of R.Senthil Kumar .vs. P.Palaniswamy and others reported in 2007(2)TN MAC 257 awarded a sum of Rs.2,000/- per percentage of disability for the injury sustained in the accident occurred on 16.04.1993 and therefore, a sum of Rs.70,000/- towards permanent disability is awarded for 35% of disability at Rs.2,000/- per percentage of disability. Awarding a sum of Rs.1,500/- as loss of earning for 30 days at the rate of Rs.50/- per day and Rs.290/- towards X-ray charges,as per Ex.P14 are confirmed. Rs.1,000/- has been awarded towards transport expenses and the same is enhanced to Rs.3,000/-. Rs.3,000/- awarded towards extra-nourishment is enhanced to Rs.5,000/-. Rs.5,000/- alone was awarded for mental agony and shock. What is to be seen is that in this case the appellant sustained injury in the skull and fracture in the ankle and definitely shock and pain which have produced at the time of accident cannot be under-estimated and therefore, Rs.5,000/- awarded towards shock and mental agony is enhanced to Rs.15,000/-The trial Court has already awarded compensation under the head of shock and mental agony and another sum of Rs.12,000 awarded under the head pain sufferings would amount to double compensation and hence the award of Rs.12,000/- under the above head is set aside.
6.As rightly submitted by the learned counsel for the appellant, there was no amount awarded towards loss of amenities. In this case, the appellant's joint movement is restricted and there is an injury in the skull and the appellant sustained injury at right ankle fracture and there is non- union of fracture ankle and also due to fracture in the skull, definitely would cause restriction in the movement and also it would amount to loss of amenities. Therefore, relying upon the judgement of the Honourable Supreme Court in the case of Rudra .vs. National Insurance Company Limited and another reported in 2011(1) TN MAC 537 (SC), in which case, for the fracture of ankle and foot, Rs.40,000/- was awarded. This Court also awards a sum of Rs.40,000/-. In all, the total compensation payable to the claimant comes to Rs.1,34,79/-.The rate of interest already awarded by the Tribunal at 6% remains unaltered.
7.Accordingly, the Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.80,390/- is enhanced to Rs.1,34,790/-with interest at 6% p.a from the date of claim petition till the date of deposit. The second respondent/Insurance Company is directed to deposit the balance award amount, less the amount already deposited, along with proportionate interest and cost to the credit of claim petition, within a period of 12 weeks from the date of receipt of a copy of this order. The claimant is permitted to withdraw the award amount, less the amount already withdrawn, if any, with proportionate interest and costs, through RTGS by filing necessary application before the Tribunal. No costs.
To The Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli..