Madras High Court

Kusum Chandak (Alias) Kusum Metha vs Nirmal Metha on 20 April, 2021

                                                            1                      C.M.A.No. 3088 of 2017


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                Dated : 20.04.2021

                                                       CORAM

                        THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY

                                                 C.M.A.No. 3088 of 2017


                    Kusum Chandak (alias) Kusum Metha                                   ...Appellant

                                                           Vs.


                    1.Nirmal Metha

                    2.The Oriental Insurance Company Limited,
                     No.216, Prakasam Salai,
                      Broadway, Chennai - 600 108.                                 .... Respondents

                    Prayer:

                              Civil Miscellaneous Appeal filed under Section 173 of Motor

                    Vehicles Act, against the judgment and decree dated 14.03.2017 made in

                    M.C.O.P. No.6968 of 2013 on the file of the Motor Accident Claims

                    Tribunal, Court of Small Causes-II, Chennai.

                                      For Appellant             :   Mr.K.Suryanarayanan

                                      For R1                    :   Vacated from the address

                                      For R2                 : Mr.J.Chandran
                                                          -----
https://www.mhc.tn.gov.in/judis/
                                                            2                    C.M.A.No. 3088 of 2017



                                                    JUDGMENT

Challenging the quantum of compensation, the claimant has been

filed the present appeal.

2. The factum of the accident and the fixation of negligence, are not

in dispute. The learned counsel appearing for the appellant/claimant

submitted that the Tribunal has awarded a sum of Rs.1,35,000/- under the

head "disability". The Doctor who assessed the claimant, determined the

disability at 50% based on Ex.P-13. However, the Court after deducting

5%, had fixed the disability of the claimant at 45% and awarded a sum of

Rs.3,000/- per percentage (in total 45 x 3 x 1000) under the head

"disability" at Rs.1,35,000/-.

3. The learned counsel appearing for the appellant/claimant

submitted that the assessed amount is very low. This is a fit case to apply

multiplier method. The learned counsel further submitted by referring to

Ex.P13, Ex.P14 and Ex.P15, that the claimant sustained grievous injuries

due to the accident and she was not able to walk and she has been suffering

from headache and giddiness due to the multiple fracture on the head.

https://www.mhc.tn.gov.in/judis/

Further, the learned counsel submitted that, in this situation, the Court

should have applied multiplier method and awarded the compensation. In

the case of Raj Kumar v. Ajay Kumar and Another, reported in [CDJ

2010 SC 1153], the Apex Court considered for applying the multiplier

method at the time of awarding the compensation.

4. Further, the learned counsel for the appellant/claimant submitted

that the Court below fixed the notional income of the deceased at

Rs.8,000/- per month. However, in the present case, accident occurred in

the year of 2013. The Hon'ble Apex Court in Syed Sadiq v. Divisional

Manager, United India Insurance reported in [2014 (1) TNMAC 459

(SC)], fixed the notional income of a vegetable vendor as Rs.6,500/- and if

the same principle is applied to the present case, by taking into

consideration of increase in cost of living over a period from 2008 to 2013,

it would be appropriate to fix the notional income of the claimant at a sum

of R.13,000/- and accordingly the counsel plead before this Court to fix the

notional income at Rs.13,000/-.

https://www.mhc.tn.gov.in/judis/

5. Per contra, Mr.J.Chandran, the learned counsel appearing for the

second respondent/Insurance Company strongly opposed the submissions

of the learned counsel for the appellant/claimant stating that in the present

case, though the disability certificate was issued by the Doctor, the said

Doctor was not examined and he has stated that number of injuries and

they are only minor injuries and the same are not related to the accident

and she has already pre-existing diseases. Towards the medical expenses a

sum of Rs.6,10,100/- has been awarded, against which, they have not

preferred any appeal. Therefore, the appellant/claimant must be satisfied

with the award passed by the Tribunal. Further, he submitted that there is

no need for any re-consideration of the award passed by the Tribunal.

6. Heard both side and perused the materials available on record.

7. The accident occurred on 16.02.2013. The factum of accident

and the fixation of liability are not in dispute. In the present case, the only

issue that arises for consideration is as to with regard to the non-

applicability of the multiplier method and the notional income fixed by the

Tribunal is just and fair. The Doctor who assessed the claimant determined

the disability at 50% and issued the Disability Certificate which was https://www.mhc.tn.gov.in/judis/

marked as Ex.P13. However, the Tribunal, for the purpose of awarding the

compensation, had taken the disability at 45%. A plea has also been made

on the part of the learned counsel appearing for the 2nd

respondent/Insurance Company that, even if the Court is inclined to apply

the multiplier method, the functional disability may be taken as 1/3

permanent partial disability, as determined by the doctor.

8. On a perusal of Ex.P3, Ex.P4, Ex.P5 and Ex.P6, would show that

the claimant has sustained following injuries:-:

(i) Traumatic Communited Depressed Fracture of partial bone in the Vertex,

(ii) Subarachnoid Hemorrhage,

(iii) Ring fracture of CI Vertebra Tear drop fracture of C6 Vertebrl Body,

(iv) Bilateral Lung consolidation with mild pleural effusion,

(v) Stress Induced cardiomyapathy,

(vi) Anernia,

(vii) Gram Negative Bacteremia,

(viii) Hypokalemia,

(ix) Coagulopathy,

(x) Drug Rash,

https://www.mhc.tn.gov.in/judis/

9. On a perusal of PW1's deposition, it is seen that she has

sustained multiple fracture injuries on the head, due to the said accident,

and she has been suffering from headache and also sudden giddiness

continuously. That apart, she has also been facing the hearing problem as

well. PW2-Dr.Mathiazhagan also deposed that the claimant has been

suffering from headache, giddiness and hearing problem due to the

multiple fractures sustained on the head due to the accident. This Court

perused the deposition of PW1 and PW2 and also the cross examination

made on the part of the Insurance Company. The statements of both the

Doctor as well as the appellant/claimant has not been refuted. No question

was put against these statements on the part of the respondent/Insurance

Company. Therefore, this Court is of the view that the injuries sustained

by the claimant are grievous in nature. At the time of sustaining of

injuries, the claimant was about 30 years, thus the contention that she is

having the complication of blood pressure, sugar and giddiness, otherwise,

has not been proved. Hence, the said contention of Insurance Company

cannot be accepted. The claimant had taken treatment for 21 days in the

hospital as in-patient, and the Tribunal fixed Rs.6,10,100/- towards

medical expenses to the claimant. Having accepted and paid the medical

expenses by the Insurance Company, now they can not claim that the https://www.mhc.tn.gov.in/judis/

injuries sustained are not grievous in nature. Therefore, this Court is of the

view that the injuries are grievous in nature and following the judgment of

the Hon''ble Apex Court in the case of Raj Kumar v. Ajay Kumar and

Another, reported in [CDJ 2010 SC 1153], it would be appropriate to

apply the multiplier for awarding the compensation under the head

"disability". Due to the nature of injuries sustained by the claimant, this

Court would like to take the functional disability of the claimant at 25%

for the purpose of determination of compensation for his disability.

10. The next issue for consideration is as to the fixation of notional

income. The Tribunal fixed a sum of Rs.8,000/- as notional income. The

accident is of the year 2013. Even the Hon'ble Apex Court in Syed Sadiq v.

Divisional Manager, United India Insurance reported in [2014 (1) TN

MAC 459 (SC)], fixed the notional income of a vegetable vendor as

Rs.6,500/- and the accident in that case was of the year 2008, in the present

case, the accident occurred in the year 2013, therefore, by providing

appropriate addition to the increase in cost of living over a period of five

years, it would be appropriate to fix the notional income at Rs.13,000/-

p.m. On behalf of the appellant/claimant, Ex.P11 Income Tax Return was

filed and marked. On a perusal of the IT return, it would show that she https://www.mhc.tn.gov.in/judis/

was earning a sum more than Rs.4,00,000/- per annum, but how she was

earning that amount is not known. No evidence has been produced to

substantiate the same. No pass book details are produced about continuous

receipt of the salary. Under these circumstances, the fixation of notional

income of the claimant at a sum of Rs.13,000/- (including future prospects)

would be proper. For the age group of 30, the multiplier applicable is 17.

The loss of income for the disability of the claimant is determined as

follows:-

Rs.13,000 x 12 x 17 x 25/100 : Rs.6,63,000/-.

11. With regard to the award passed by the Tribunal under the other

heads are just and fair and the same stands confirmed and accordingly, the

award amount of Rs.9,01,100/- fixed by the Tribunal is re-determined at

Rs.14,29,600/- as total compensation as follows:-

                                                                          Amount            Amount
                                                                         awarded by      awarded by this
                                   S.No           Description
                                                                          Tribunal           Court
                                                                            (Rs)              (Rs)
                                    1.    Transportation, nourish food         50,000              50,000
                                          and Miscellaneous Expenses
                                    2.    Medical Expenses                    6,10,100           6,10,100
                                    3.    Future Medical Expenses              10,000              10,000
                                    4.    Attender Charges                     10,000              10,000
                                    5.    Damages for Pain &                   50,000              50,000
                                          Suffering and Trauma
https://www.mhc.tn.gov.in/judis/



                        6.   Disability                        1,35,000          6,63,000
                        7.   Loss of Earning during the         16,000             16,000
                             period of treatment
                        8.   Loss of Amenities                  20,000             20,000
                             Total                             9,01,100        14,29,100

12. The second respondent/Insurance Company is directed to deposit

the entire award amount as determined now, along with 7.5% interest from

the date of filing of the petition till the date of realization, after deducting

the amount if any already deposited before the Tribunal, within a period of

8 weeks from the date of receipt of a copy of this order. Further, the

Tribunal is directed to transfer the entire amount to the claimant within a

period three weeks from the date of the deposit of the amount by the

Insurance Company, by way of RTGS to the Bank account of the claimant

or from the date of filing an application for withdrawal of the award

amount, whichever is later.

13. Accordingly, the Civil Miscellaneous Appeal is disposed of. No

order as to costs. Consequently, connected Miscellaneous Petition is