Madras High Court
S.Rengarajan vs M.Sathamussain on 25 September, 2019
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
C.M.A.(MD)No.368 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.M.A.(MD)No.368 of 2019
and
C.M.P(MD)No.6051 of 2019
S.Rengarajan ... Appellant/Claimant
Vs.
1.M.Sathamussain
2.The Divisional Manager,
The Oriental Insurance Co.Ltd.,
No.II, KJR Complex, 1st Floor,
No.16, Northveli Street,
Madurai. ... Respondents/Respondents
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act,
1988, to enhance the compensation amount in M.C.O.P.No.519 of
2016 order dated 24.04.2018 on the file of the Motor Accident
Claims Tribunal/IV Additional Sub Judge, Madurai.
For Appellant : Mr.K.Kumaravel
For R1 : No Appearance
For R2 : Mr.C.Jawahar Ravindran
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C.M.A.(MD)No.368 of 2019
JUDGMENT
The present appeal has been filed by the appellant/Claimant challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal/IV Additional Sub Judge, Madurai vide its order dated 24.04.2018.
2. The compensation was awarded by the Court below is as follows:-
Heads Amount (in Rs.) for partial permanent disability Rs. 1,86,000/-
(62 x 3000)
for pain and suffering Rs. 50,000/-
for loss of income Rs. 15,000/-
for transportation Rs. 5,000/-
for nutrition Rs. 5,000/-
loss of clothing and ornaments Rs. 1,000/-
Medical expenses Rs. 1, 36,100/-
Total Rs. 3,98,100/-
3. A brief facts of the case is as follows:-
(i) On 13.08.2016 at about 2.15 p.m when the petitioner was riding Bajaj Motocycle bearing Reg.No.TN 69 AF 6900 in Madurai – Rameswaram National Highway from west to east in a slow and moderate speed in the extreme left side of the road when he was nearing opposite to Thirupuvanam Pudur, Krishnan Kovil, the first http://www.judis.nic.in 2/14 C.M.A.(MD)No.368 of 2019 respondent drove the Indica car bearing Reg.No.TN 58 AF 6811 from the opposite direction in a rash and negligent manner with terrific speed and dashed against the petitioner's motorcycle and thereby the petitioner sustained injuries.
(ii) Regarding this a criminal case had been registered in Thiruppuvanam Police Station in Cr.No.372/2016. Immediately, after the accident, the petitioner was taken to Primary Health Centre, Thiruppuvanam where first aid was given and then referred to Government Rajaji Hospital, Madurai, but he was admitted at Preethi hospital as inpatient from 13.08.2016 to 24.08.2016 and surgery was done on 13.08.2016 and then he continues his treatment as outpatient in the same hospital and incurred medical expenses of Rs.3,50,000/-.
(iii) At the time of accident, the petitioner was running a grocery shop and thereby earning a sum of Rs.600/- per day. Due to the injuries sustained in the accident, the petitioner sustained permanent disability of shortening of left leg causing limping of walk, he cannot stand for a long time, unable to squat, ride, not able to do his work as earlier and suffering from loss of Income. The accident was happened only due to rash and negligent driving of the http://www.judis.nic.in 3/14 C.M.A.(MD)No.368 of 2019 first respondent and the first respondent duly insured his vehicle with the second respondent, hence, both the respondents are jointly and severally liable to pay the compensation to the petitioner.
(iv) Before the Tribunal, on the side of the appellant, two witnesses were examined as P.W.1 & P.W.2 and sixteen documents were marked as Ex.P.1 to Ex.P.16. On the side of the respondent/Insurance Company, two witnesses were examined as R.W.1 & R.W.2 and three documents were marked as Ex.R.1 to Ex.R3.
(v) The petitioner has claimed a total compensation of Rs.
20,17,000/- under various heads before the Motor Accident Claims Tribunal/IV Additional Sub Judge, Madurai. But the Tribunal awarded only a sum of Rs.3,98,100/- as compensation to the appellant. Therefore, the appellant preferred this Civil Miscellaneous Appeal.
4. The learned counsel for the appellant would submit that the Tribunal fixed a sum of Rs.1,86,000/- [3,000 X 62% = 1,86,000/-] towards compensation for partial permanent disability. According to the appellant, the Tribunal should have applied the multiplier method for determining the loss of income of the injured rather than http://www.judis.nic.in 4/14 C.M.A.(MD)No.368 of 2019 fixing a compensation as a sum of Rs.1,86,000/- at the rate of Rs. 3,000/- per percentage. In the present case, the Medical Board assesed the partial permanent disability at 62%. The learned counsel for the appellant contended that with 62% disability, the appellant is not in a position to work any where. The learned counsel for the appellant relied upon the judgment of this Court in the case of United India Insurance Company Ltd., Vs.Veluchamy and another reported in 2005 (1) TN MAC 87 (DB), wherein it was held that the multiplier method can be applied in appropriate cases. Hence, he submitted that referring the above judgment, this is a fit case for applying multiplier method.
5.The learned counsel appearing for the respondent/Insurance Company would contend that the multiplier method cannot be applied in the present case. Therefore, the Tribunal has rightly not applied the multiplier method and awarded the compensation of Rs. 3,000/- per percentage of partial permanent disability. Further, he contended that no need to interfere with the award passed by the Tribunal and the award of Tribunal is just and fair. Therefore, he pleaded to confirm the award of Tribunal.
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6. The learned counsel appearing for the appellant also relied upon the judgment of Hon'ble Supreme Court in the case of Sri Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Co. Ltd & another reported in 2012 (1) TN MAC 28 (SC), wherein, the Hon'ble Supreme Court has taken disability as to right lower limb, 25% due to urethral injury and 38% as whole body disability and awarded the compensation by applying the multiplier method. Therefore, the same principle is applicable in the present case while determine the compensation amount for loss of income due to the disability.
7. The learned counsel for the respondent/Insurance Company relied upon the judgment of full bench held in Kaluram Rathore Vs. Neelam Chand Kirar & another reported in 2004 (2) TN MAC 16 (FB) (MP) and Paragraph 9 of the above judgment reads as follows:-
“ We have heard Counsel for the parties.
Question involved in all the cases is whether fracture of bones in a motor accident will amount to privation of any member of joint and would amount to permanent disability as defined in Section 142 of the Act. We may mention here that Section 142 is limited to Chapter X only. Mere fracture of bones and its reunion will not be sufficient to determine http://www.judis.nic.in 6/14 C.M.A.(MD)No.368 of 2019 nature of disability unless determined by performing scientific test.”
8.The learned Counsel appearing for the Insurance Company also referred the judgment of this Court in the case of United India Insurance Company Ltd., Vs. Veluchamy and another reported in 2005 (1) TN MAC 87 (DB) and argued that the multiplier method cannot be mechanically applied in all cases of injury or permanent disablement but depends upon the factors such as nature and extent of disablement. Hence, he made strong objection to apply the multiplier method in the present case. Now, it is for this Court to decide the functional disability based on the injury sustained by the claimant.
9.No doubt as held by the Full Bench of Madhyapradesh High Court, mere fracture of bone and reunion will not be sufficient to determine nature of disability unless it is determined by performing scientific test. In the present case, the Medical Board examined the victim and assessed the disability as 62% and the disability certificate issued by the Medical Board has also been marked before the Tribunal as Ex.C1. The Insurance Company has not disputed the evolution of the Medical Board with regard to the fixation of 62% disability for the injuries sustained by the claimant due to the http://www.judis.nic.in 7/14 C.M.A.(MD)No.368 of 2019 accident.
10. Considering the nature of injuries sustained by the injured, this Court is inclined to take 35% as functional disability. While fixing the functional disability, this Court also consider the disability certificate issued by the Medical Board to the extent of 62% towards permanent partial disability. Though the learned counsel appearing for the Insurance Company made strong objection for applying multiplier method, this Court is not in a position to accept the contention of the second respondent/Insurance Company due to the reason that the Act itself provides a method for the purpose of awarding compensation when a claim made under Section 163 A of the Motor Vehicles Act. If any claim is made under 163 A of the Act, under no fault liability clause, the claimant would be awarded compensation based on the standard income, as mentioned in the second schedule, by applying the multiplier method. On perusal of the second schedule, it is clear that both the injured as well as in the fatal cases, the loss of income could be awarded by applying multiplier method. When such being the case, when a person come forward before the Court proving disability, by leading evidence, I do not find any impediment/obstacles for awarding compensation by the Tribunal by http://www.judis.nic.in 8/14 C.M.A.(MD)No.368 of 2019 applying multiplier method. Hence, I am inclined to apply multiplier method in the present cases since the Tribunal failed to do so.
11. As far as income is concerned, the age of the injured at the time of accident was 35 years. The Court below has fixed a sum of Rs.5,000/- as notional income and awarded the compensation. In the present case, the accident occurred in the year 2016, fixing a sum of Rs.5,000/- as notional income for a person aged about 35 years appears to be very low. Even, the Hon’ble Apex Court in case of Syed Sadiq vs. Divisional Manager, United India Insurance Company reported in 2014 1 TNMAC 459 SC has fixed a sum of Rs.6,500/- as notional income for the accident occurred in the year 2008 for a Vegetable Vendor. In the present case, the injured was running a grocery shop. The avocation of the appellant as well as Vegetable Vendor can be treated equally by considering both the avocation at the same level by providing appropriate increase for the cost of living for the past eight years. Hence, this Court inclined to fix a sum of Rs.8,000/- as notional income of the appellant for the purpose of awarding compensation.
12.As the age of the injured was 35 years completed at the time of accident, the multiplier applicable is 16 as held by the http://www.judis.nic.in 9/14 C.M.A.(MD)No.368 of 2019 Hon'ble Apex Court in the case of (Sarla Verma & others vs. Delhi Transport Corporation & another) reported in 2009 (2) TNMAC 1. Further, by taking the notional income of the injured as Rs.8,000/- and the loss of income is calculated in the manner stated below:
Rs.8,000/- (Rs.5,000 + 3,000) x 12 x 16 x 35% = Rs.5,37,600/-
13. The Tribunal awarded a sum of Rs.50,000/- towards pain and suffering, this court is of the view that the amount awarded is too low. The injured was in the hospital, therefore, considering the nature of injuries, this Court is of the view that the injured would have suffered lot of pain and suffering over the treatment period and therefore, this Court inclined to refix a sum of Rs.75,000/- towards pain and sufferings.
14. The Tribunal by fixing a sum of Rs.5,000/- per month as notional income, awarded a sum of Rs.15,000/- towards loss of income for three months. Since this Court revised the notional income of the appellant as a sum of Rs.8,000/- per month, a sum of Rs.15,000/- awarded by the Tribunal towards loss of income is increased to a sum of Rs.24,000/-.
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15. The Tribunal has awarded a sum of Rs.5,000/- towards transportation, which is reasonable and the same is stands confirmed.
16. The Tribunal awarded a sum of Rs.5,000/- towards nutrition and the same is too low. Hence, this Court enhanced the same to Rs.15,000/- towards nutrition.
17. Further, the Tribunal has awarded a sum of Rs.1,000/- towards loss of clothing and ornaments, which is reasonable and the same is stands confirmed.
18. The Tribunal has awarded a sum of Rs. 1,36,100/- towards medical expenses and the same is stands confirmed.
19.The Tribunal has not awarded any amount towards future medical expenses. Therefore, this Court is inclined to award a sum of Rs.50,000/- towards future medical expenses.
20.The total revised compensation awarded by this Court is as follows:
http://www.judis.nic.in 11/14 C.M.A.(MD)No.368 of 2019 Heads Amount (in Rs.) Partial permanent disability Rs. 5,37,600/-
Pain and suffering Rs. 75,000/-
Loss of Income Rs. 24,000/-
Transport Rs. 5,000/-
Nutrition Rs. 15,000/-
Loss of clothing and ornaments Rs. 1,000/-
Medical expenses Rs. 1,36,100/-
Future medical expenses Rs. 50,000/-
Total Rs. 8,43,700/-
21.Therefore, a sum of Rs.3,98,100/- awarded by the Tribunal stands increased to a sum of Rs.8,43,000/-.
22.In the result, C.M.A(MD)No.368 of 2019 is partly allowed by enhancing the award of the Tribunal from Rs.3,98,100/-
(Rupees Three Lakhs and Ninety Eight Thousand and One Hundred only) to a sum of Rs. 8,43,700/ (Rupees Eight Lakhs and Forty Three Thousand and Seven Hundred only).
23. The respondent/Insurance Company is directed to deposit the entire award amount i.e., Rs. 8,43,700/ (Rupees Eight Lakhs and Forty Three Thousand and Seven Hundred only) along with interest at the rate of 7.5% per annum from the date of filing http://www.judis.nic.in 12/14 C.M.A.(MD)No.368 of 2019 of the claim petition till the date of realization, within a period of eight weeks from the date of receipt of a copy of this order, less the amount already deposited if any. On such deposit, the Tribunal is directed to transfer the award amount to the appellant/claimant's account by way of RTGS, within a period of three weeks thereafter. No costs. Consequently, connected miscellaneous petition is closed.
24.09.2019
Index :Yes/No
Internet :Yes/No
dss
To
1.The Motor Accident Claims Tribunal/
IV Additional Sub Judge,
Madurai.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)No.368 of 2019
KRISHNAN RAMASAMY,J.
dss
C.M.A.(MD)No.368 of 2019
and
C.M.P(MD)No.6051 of 2019
25.09.2019
http://www.judis.nic.in
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