Madras High Court
M.Murugan vs B. Kamalanabhan (Firm) on 20 October, 2017
Author: N.Seshasayee
Bench: N.Seshasayee
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.10.2017 CORAM: THE HONOURABLE MR.JUSTICE N.SESHASAYEE C.M.A.Nos.129 and 211 of 2001 C.M.A.No.129 of 2001 M.Murugan .. Appellant Vs. 1. B. Kamalanabhan (Firm) Salt Cotaurs Lorry Owners Elephant Gate Bridge Road, Chennai-600 012 (was set ex-parte in the trial court) 2. Oriental Insurance Co.Ltd., Spencers Towers, No.770, Anna Salai, Chennai-600 002. .. Respondents Common Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 11.12.2000 made in M.A.C.T.O.P.No.1592 of 1997, on the file of the learned VI Judge Motor Accident Claims Tribunal (Court of Small Causes), Chennai. For Appellant : Ms.Saleem Fathima for M/s.M.Swamikannu For 1st Respondent : Ex-parte in lower court For 2nd Respondent : Mr.S.Manohar C.M.A.No.211 of 2001 Oriental Insurance Co.Ltd., Spencers Towers, No.770, Anna Salai, Chennai-600 002. .. Appellant Vs. 1. M.Murugan 2. B. Kamalanabhan (Firm) Salt Cotaurs Lorry Owners Elephant Gate Bridge Road, Chennai-600 012 (was set ex-parte in the trial court) .. Respondents Common Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 11.12.2000 made in M.C.O.P.No.1592 of 1997, on the file of the Motor Accident Claims Tribunal (VI Court of Small Causes), Chennai. For Appellant : Mr.S.Manohar For 1st Respondent : Ms.Saleem Fathima for M/s.M.Swamikannu For 2nd Respondent : Ex-parte in lower court COMMON JUDGMENT
These two appeals are taken up by this Court on remand by the Hon'ble Supreme Court vide its batch of order dated 24.09.2013.
2. The brief facts which are necessary to consider these appeals are that: The claimant, while travelling in an auto-rickshaw bearing No.TN-07-E-0995 suffered injury when a lorry owned by the 1st respondent and insured with the 2nd respondent collided with the auto-rickshaw due to the negligent driving of the lorry. In the said accident, the claimant suffered major and serious injuries due to which, was said to have literally paralysed his right hand. Seeking compensation, he moved the Tribunal with a claim of Rs.16,00,000/- and was awarded Rs.5,95,200/-, fastening the liability jointly and severally on the owner of the lorry and the insurance company of the lorry. Challenging the said award, the insurer of the lorry as well as claimant have preferred separate appeals and they were jointly disposed of by this Court on 02.03.2007, whereunder, the total compensation was reduced from Rs.5,95,200/- to Rs.3,95,200/-. In its order, this Court has reduced the compensation awarded by the Tribunal under the head of loss of earning power from Rs.3,00,000/- to Rs.2,00,000/- and denied compensation for the personal disability suffered by the claimant, whereas, the Tribunal had awarded Rs.1,00,000/- on this head. The award passed by this Court was challenged by the claimant before the Hon'ble Supreme Court and this was taken along with a batch of other similar cases in Alexander Anand Kumar v. Divisional Engineer [Civil Appeal No.8639 of 2013] and was disposed of by a common order. In its order, the Hon'ble Supreme Court has observed as under:
''2. Learned counsel appearing for the appellant/claimant brings to our notice a judgment of this Court in the case of K.Suresh vs. New India Assurance Company Limited & Anr., reported in (2012) 12 SCC 274. In the said decision, this Court has categorically held that the compensation can be payable both for loss of earning capacity as well as disability suffered by the claimant.
3. In our considered opinion, the view taken by the High Court is contrary to the observations made by this Court in the case of K.Suresh (supra). In view of the above, the impugned judgment and order passed by the High Court cannot be sustained and the same is liable to be set aside.
4. Accordingly, we allow this appeal and set aside the impugned judgment and order passed by the High Court. We remand the matter back to the High Court to consider and decide the appeal filed by the Appellant/Claimant keeping in view the observations made by this Court in the case of K.Suresh (supra).'' This is how the matter has come to this Court.
3. A careful reading of the judgment of the Hon'ble Supreme Court as extracted above indicate that it has directed this Court to follow the principles observed in K.Suresh vs. New India Assurance Company Limited & Anr., reported in (2012) 12 SCC 274=2012 ACJ 2694.
4. In K.Suresh vs. New India Assurance Company Limited & Anr., the Hon'ble Supreme Court has exclusively relied on the principles laid down in Raj Kumar Vs Ajay Kumar and another [2011 ACJ 1] and has distinguished the permanent disability caused due to the injuries suffered in the accident from the economic loss caused by the permanent disability and treated both of them as separate heads of compensation. Therefore, this Court is under a duty to determine the compensation payable on these two heads.
5. The claimant (appellant) M.Murugan in C.M.A.No.129 of 2001 has been examined himself as PW1. His disability was evaluated by PW4 Dr.Thiagarajan, and he in his evidence read along with his Ext.P-5 certificate, has opined that the claimant's right hand has become dysfunctional and he cannot use it for any work. At the time of accident, the claimant was 20 years old and was working as a centering worker under a building contractor. Taking into consideration the nature of injury suffered by the claimant, this Court, following the dictum in Raj Kumar Vs Ajay Kumar and another [2011 ACJ 1] determines the functional disability of the victim at 90%. Reckoning the notional monthly income at Rs.2,000/- and applying multiplier of 18, the total compensation payable to the claimant on this head is (Rs.2000 X 12 X 18 X 90% =3,88,800/-) Rs.3,88,800/-. The compensation payable on the head of permanent disability is determined at Rs.1,00,000/-.
6. The compensation therefore payable is as follows:
Heads Amount awarded (Rs.) Towards Loss of Income 18,000/-
Towards Transport to Hospital 2,000/-
Towards Extra Nourishment 5,000/-
Dress materials damaged 200/-
Labour, Pain and suffering and loss of income to family members 25,000/-
Mental agony and torture as the petitioner is not able to eat by right hand and depending on others 50,000/-
Loss of expectation of proper marital alliance 25,000/-
Mental agony due to paralysed hand 20,000/-
Compensation of pain and suffering 50,000/-
Compensation for permanent disability 1,00,000/-
Compensation for loss of earning power 3,88,800/-
Total 6,84,000/-
7. In the result, C.M.A. No.211 of 2001 is dismissed and C.M.A.No.129 of 2001 is allowed and the compensation is accordingly increased from Rs.3,95,200/- to Rs.6,84,000/- and the 2nd respondent is hereby directed to deposit the same less the amount if any, already deposited with interest at 12% p.a., within a period of six weeks from the date of receipt of a copy of this order. On such deposit being made, the appellant/claimant is permitted to withdraw the same forthwith. No costs. Consequently, connected civil miscellaneous petition is closed.
20.10.2017 Index:Yes/No Internet:Yes/No ssn To The Motor Accident Claims Tribunal, VI Judge, (Court of Small Causes), Chennai.
N.SESHASAYEE, J., ssn C.M.A.Nos.129 and 211 of 2001 20.10.2017