CMA.No.3487 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.09.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
CMA.No.3487 of 2013
and
M.P.Nos.1, 2 & 3 of 2013
D.Munivel
... Appellant/ Petitioner
Vs.
1.A.K.Premalatha
2.ICICI Lombard General Insurance Co. Ltd.,
Now the 2nd respondent having office at
No.140, Nungambakkam High road,
II and III - Floor,Chottabai Center, Nungambakkam,
Chennai - 34.
... Respondents / Respondents
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act,
against the Judgment and Decree made in MCOP No.3856 of 2009 dated
21.07.2012 on the file of the IV Small Causes Court Chennai/ Motor
Accident Claims Tribunal Chennai.
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https://www.mhc.tn.gov.in/judis
CMA.No.3487 of 2013
For Petitioner : Mr.K.R.Ponnusamy
For Respondent : M/s. R.Srividhya [R.2] vide order
dated 24.01.2019.
Ex parte -[R.1]
JUDGEMENT
The petitioner before the Tribunal has filed the above Civil Miscellaneous Appeal seeking an enhancement of the award passed in MCOP No.3856 of 2009 by the Motor Accident Claims Tribunal, IV Court of Small Causes, Chennai. The brief facts are as follows and the parties are referred to in the same ranking as before the Tribunal.
2. The petitioner had sustained injuries in a road accident on 14.09.2009 for which he had filed the above claim petition seeking compensation of a sum of Rs.15,00,000/-. The petitioner had sustained severe head injuries, fracture of right leg, loss of teeth, Facial injuries and multiple fractures and injuries over the body. It is his case that he is employed as a painter and earning a monthly income of Rs.7,500/-. 2/10 https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013
3. The 1st respondent/owner of the offending vehicle remained ex parte and it was the 2nd respondent/ insurance company which had contested the claim. The 2nd respondent filed a counter inter alia denying the allegations contained in the claim petition. They had also questioned the compensation claimed as being on the higher side. That apart, they had stated that the petitioner who was driving the motor cycle bearing registration No.TN 22 AX 2239 was responsible for the accident and not the car belonging to the 1st respondent, insured with the 2nd respondent bearing Registration No.TN 09 AU 3379.
4. The Tribunal below on considering the evidence on record held that the accident had occurred only on account of the negligence of the driver of the 1st respondent’s vehicle. With reference to the quantum of compensation, the Tribunal had taken into account the fact that the petitioner had been hospitalized and undergone surgeries in 3 spells. The first being from 14.09.2009 to 23.11.2009, the second from 08.01.2010 to 27.01.2010 and the last from 22.12.2010 to 11.01.20211. The accident had caused disability and disfigurement to the claimant/appellant. 3/10 https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013
5. The Tribunal had taken into account the disability certificate issued by P.W.2 and P.W.3 under Ex.P.11 and Ex.P.15 respectively and assessed the disability at 35%. The discharge summaries showing the period of treatment had been marked as Ex.P.1 to Ex.P.3. Ultimately, the learned Judge had awarded a sum of Rs.5,71,400/-. The amount under the head of permanent disability was arrived at Rs.3,21,300/- by fixing a notional income of Rs.4,500/- per month and assessing the disability at 35% and by adopting a multiplier of '17'. Aggrieved by the award, the petitioner is before this Court.
6. Mr.K.R.Ponnusamy, learned counsel appearing for the petitioner would take this Court through the discharge summaries Ex.P.1 and Ex.P.3 to show the nature of injuries and the surgeries that the petitioner had undergone. The learned counsel would also refer to the evidence of P.W.3 who had issued the disability certificate with reference to the injuries sustained by the petitioner on his ankle. P.W.3 had assessed the disability at 50%. P.W.2 on the other hand had assessed the disability on account of the head injuries which also was assessed at 50%. Therefore, the learned 4/10 https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013 counsel would submit that the Tribunal ought to have taken the entire 50 % which has been assessed by P.W.3 and taken at least 20% towards disability on account of the head injury. He would further submit that despite the 3 spells of long hospitalization, the Tribunal has not considered giving an enhanced amount towards pain and sufferings, Transportation to hospital, Extra nourishment etc.
7. Per contra, M/s. R.Srividhya, learned counsel appearing on behalf of the insurance company would submit that considering the year of the accident, the Tribunal below has rightly taken into account the disability suffered, the injuries sustained and also the amount of income to arrive at the compensation and therefore, there is no necessity to re-assess the same.
8. Heard both the counsels.
9. A perusal of Ex.P.1 to Ex.P.3 and a perusal of Ex.P.7, photos would clearly show that the petitioner's ankle has become deformed. The petitioner admittedly was a painter by profession which involves long hours of standing, squatting etc. Considering the injuries sustained by him and the 5/10 https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013 report given in the disability certificate it is clearly evident that the petitioner cannot continue his avocation as before and there is definitely a loss of earning capacity. The Tribunal ought to have assessed the disability at 45% and not 35%. This disability is a permanent one, therefore, the Tribunal has rightly adopted a multiplier method. The Tribunal has taken an income of Rs.4,500/- even according to the petitioner he has been earning a monthly income of Rs.7,500/- as a painter which appears to be slightly on the higher side and therefore, this Court adopts a sum of Rs.6,500/- as the monthly income. Therefore, the compensation towards disability to the ankle would be Rs.6,500 x 12 x 17 x 45% = Rs.5,96,700/-. Ex.P.11 disability certificate would also show that the petitioner had sustained a disability on account of the head injury. The same though not having seriously affected the earning capacity has definitely reduced the petitioner’s reflexes. Therefore, the disability can be compensated by adopting a percentage method at the rate of Rs.2,000/- per percentage. Therefore, loss on account of permanent disability due to head injury would be 20 x Rs.2,000/- = Rs.40,000/-. Therefore, the total amount due under the head of loss on account of permanent disability would be Rs.6,36,700/-. As already discussed the petitioner had to undergo 3 long spells of 6/10 https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013 hospitalization for which he has been awarded a sum of Rs.50,000/- towards the pain and sufferings which appears to be reasonable. However, he has only been awarded Rs.5,000/- and Rs.7,000/- towards Transport to hospital and extra nourishment respectively. This is enhanced to a sum of Rs.10,000/- and Rs.20,000/- respectively. Under all other heads the award remain un-altered. The award is therefore modified to the aforesaid extent as tabulated herein below:-
S.No Description Amount Amount Award confirmed
awarded by awarded by or enhanced or
Tribunal this Court granted or
(Rs) (Rs) reduced
1. Loss of income 27,000/- 27,000/- Confirmed
2. Transport to Hospital 5,000/- 10,000/- Enhanced
3. Extra Nourishment 7,000/- 20,000/- Enhanced
4. Damage to Clothing 1,000/- 1,000/- Confirmed
5. Medical Expenses 1,60,100/- 1,60,100/- Confirmed
6. pain and sufferings 50,000/- 50,000/- Confirmed
7. Permanent Disability 3,21,300/- 6,36,700 Enhanced
TOTAL 5,71,400/- 9,04,800/- enhanced by
Rs.3,33,400/-
10. Therefore, the Civil Miscellaneous Appeal is allowed and the award of the Tribunal be and hereby is enhanced to a sum of Rs.9,04,800/- from Rs.5,71,400/- together with interest @ 7.5 % per annum from the date of petition till the date of deposit. In all other respects the award of the 7/10 https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013 Tribunal is confirmed. The 2nd respondent/insurance company is directed to deposit the said amount (Rs.9,04,800 /-) to the credit of MCOP No.3856 of 2009 on the file of the Motor Accidents Claims Tribunal, IV Small Causes Court, Chennai together with interest @ 7.5% per annum from the date of claim petition till the date of deposit and costs as awarded by the Tribunal, less, the amount, if any already deposited, within a period of six weeks from the date of receipt of a copy of this Judgement. On such deposit being made, the petitioner/claimant is permitted to withdraw the award amount now determined by this Court along with interest and costs, after adjusting the amount if any already withdrawn. The claimant shall pay the Court fee for the enhanced amount, if payable. The Tribunal shall not disburse of the amount till such time as the certified copy showing proof of entire payment of Court fee has been produced. No costs. Consequently, the connected Miscellaneous Petitions are closed.
09.09.2022 Index : Yes/No Internet: Yes/No shr 8/10 https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013 To
1. The IV Small Causes Court Chennai/ Motor Accident Claims Tribunal Chennai
2.The Section Officer, V.R.Section, High Court, Madras.
9/10 https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013 P.T. ASHA, J, shr CMA.No.3487 of 2013 and M.P.Nos.1, 2 & 3 of 2013 09.09.2022 10/10 https://www.mhc.tn.gov.in/judis