V.Dhasarathan vs K.Balasubramanian
2021 Latest Caselaw 10974 Mad

Citation : 2021 Latest Caselaw 10974 Mad
Judgement Date : 29 April, 2021

Madras High Court

V.Dhasarathan vs K.Balasubramanian on 29 April, 2021

                                                                                  C.M.A.No.3888 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 29.04.2021

                                                         CORAM

                                     THE HON'BLE MR.JUSTICE C.SARAVANAN

                                                 C.M.A.No.3888 of 2019
                     V.Dhasarathan                                              ... Appellant

                                                            Vs.

                     1.K.Balasubramanian
                     2.The Divisional Manager,
                       National Insurance Company Ltd,
                       2nd Floor, Omalur Road, Salem.                           ... Respondents

                           Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and Decree dated 06.08.2012
                     made in M.C.O.P.No.46 of 2011, on the file of the Motor Accidents Claims
                     Tribunal/Chief Judicial Magistrate, Namakkal.

                                           For Appellant     : Mr.A.Sathish Kumar
                                           For Respondent    : Mr.J.Chandran for R2
                                                               No appearance for R1


                                                       JUDGMENT

The claimant is the appellant in this appeal. The claimant has filed

this appeal for enhancement of compensation awarded by the Tribuanl by its

judgment and decree dated 06.08.2011 in M.C.O.P.No.46 of 2011 on the file

of the Motor Accidents Claims Tribunal/Chief Judicial Magistrate,

Namakkal.

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

C.M.A.No.3888 of 2019

2.By the impugned judgment and decree, the Tribunal has awarded a

sum of Rs.6,15,030/-. The appellant has filed this appeal for enhancement

of compensation on the ground that the Tribunal has considered

disproportionately a low monthly income of Rs.4,500/- and as suo motu

reduced the disability to 50% as against 68% assessed by the physician in

the Ex.P9 disability certificate and as per the oral deposition of P.W.2.

3.Defending the impugned judgment and decree, the learned counsel

for the 2nd respondent/Insurance Company submits that the Tribunal has

awarded just compensation and therefore submits that the award amount

may be confirmed and appeal be dismissed. He submits that the Tribunal

has wrongly awarded amount towards Loss of Income during treatment,

Future Prospects etc,.

4.Heard the learned counsel for the appellant and the respondent and

perused the impugned judgment and decree and the exhibits that were

marked before the Tribunal.

5.The nature of injury suffered by the appellant indicates amputation

of his right leg up to just below knee. The medical evidence on records and https://www.mhc.tn.gov.in/judis/

C.M.A.No.3888 of 2019

the deposition of P.W.2 indicates 68% permanent disability. As per the

decision of the Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar

and Another, (2011) 1 SCC 343, once there is permanent disability, the

Court/Tribunal has to determine the functional disability with reference to

the avocation.

6.The appellant was a cook (master) aged about 42 years at the time

of accident. He stated that he was earning a sum of Rs.10,000 per month.

In my view, the determination of functional disability at 50% appears to be

correct assumption, considering the fact, the appellant can continue to be a

master cook with the help of artificial leg.

7.However, it is noticed that the Tribunal has not awarded any

amount towards permanent disability and has award compensation by

considering a low monthly income of Rs.4,500/-. The accident is of the year

2010. Considering the same, I am inclined to consider the notional income

of the appellant as Rs.8,000. On the aforesaid amount, there shall be a

further addition of 25% towards future prospect.

8.The Tribunal has also considered wrong multiplier of 12. https://www.mhc.tn.gov.in/judis/

C.M.A.No.3888 of 2019

Considering the fact, that the appellant was aged about 42 years and the

correct multiplier to be applied is 14. No amount has been awarded towards

artificial leg and therefore a sum of Rs.1,00,000/- has awarded towards the

same. The amount of Rs.25,000/- awarded towards Pain and sufferings is

enhanced by another 25,000/-, considering the fact, that there is a

amputation of leg. Therefore, the compensation awarded by the Tribunal is

re-computed as follows:-

Compensation due to permanent Rs.8,40,000 Disability 8,000 + 2,000 X 12 X 14 X ½ *25% towards future prospects Pain and sufferings Rs. 50,000 Artificial Leg Rs. 1,00,000 Loss of amenities Rs. 10,000 Total Rs.10,00,000/-

9.The 2nd respondent/Insurance Company is therefore directed to

deposit the enhanced amount of compensation of Rs.10,00,000/- together

with interest at 7.5% per annum from the date of numbering of the claim

petition till the date of such deposit, less any amount already deposited by it,

within a period of eight weeks from the date of receipt of a copy of this

Judgment.

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

C.M.A.No.3888 of 2019

10.On such deposit being made by the 2nd respondent/Insurance

Company, the appellant/claimant is permitted to withdraw his share together

with interest accrued thereon, less any amount already withdrawn in the

same proportion as was ordered by the Tribunal.