Madras High Court
R.Gangadharan vs Sadanand on 9 April, 2021
C.M.A.No.373 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.04.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.No.373 of 2021
R.Gangadharan
S/o.Raj … Appellant
Vs.
1.Sadanand
S/o.Sir Rang R/o
2.Sri Ram General Insurance Co. Ltd.,
No.66, Thirumalai Pillai Street,
T.Nagar, Chennai – 17.
Now at Plot No.5, 1st Floor,
Ramachandran Nagar, Seevaram,
Chennai – 600096.
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C.M.A.No.373 of 2021
3.R.SA.Babu Shankar
S/o.Shanmuga Mudaliyar
4.The United India Insurance Co. Ltd.,
Silingi Building,
No.134, Greams Road,
Chennai – 600006. … Respondents
Prayer:
Civil Miscellaneous Appeal filed u/s.173 of the Motor Vehicles Act,
1988, against the judgment and decree dated 12.11.2019 passed in
M.C.O.P.No.7123 of 2013 on the file of IV Small Causes Court, Chennai.
For Appellant : Mrs.Ramya V Rao
For Respondents : Mr.K.Poomalai [R2]
Mr.P.Sankaranarayanan [R4]
Ex parte [R1 & R3]
*****
JUDGMENT
[The judgment of the Court was delivered by R.SUBBIAH, J]
This matter is heard through Video Conferencing.
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C.M.A.No.373 of 2021
2. Not being satisfied with the quantum of compensation awarded by the
Tribunal in and by its judgment and decree dated 12.11.2019 passed in
M.C.O.P.No.7123 of 2013 on the file of IV Small Causes Court, Chennai,
appellant/claimant has filed the present appeal.
3. For the sake of convenience, the appellant herein is referred to as
‘claimant’ and the second respondent is referred to as ‘Insurance Company’.
4. The brief facts of the case are as follows:
On 20.02.2013 at about 11.45 p.m., while the claimant was on his duty
as a cleaner in a lorry bearing Registration No.TN-04-B-5868, which was
proceeding on the Redhills-Karanodai Joint Road, another Lorry bearing
Registration No.KA-39-5387, belonging to first respondent and insured with
the Insurance Company, came in a rash and negligent manner and dashed
against the Lorry in which the claimant was travelling, as a result of which the
claimant sustained grievous injuries viz., crush injuries over his right leg, right
femur, head, left leg and multiple injuries all over the body. Immediately, the
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C.M.A.No.373 of 2021
claimant was admitted at Government Stanley Hospital, wherein his right leg
was amputated. Hence, the claimant filed the claim petition seeking
compensation in a sum of Rs.35,00,000/-.
5. Resisting the claim, the Insurance Company had filed a detailed
counter inter alia stating that the accident had not occurred in the manner as
projected by claimant. They further denied the age, occupation and income of
the claimant.
6. To prove his claim, before the Tribunal, the claimant examined himself
as PW-1 besides examining one Seenivasan as PW-2 and marked 12 documents
Exs.P1 to P12. On the side of Insurance Company, no witness was examined,
but, 2 documents were marked.
7. On appreciation of materials, the Tribunal, found that the accident had
occurred owing to the rash and negligent driving of the Lorry belonging to first
respondent and held that the Insurance Company, being the insurer of the
offending vehicle, is liable to pay compensation. The compensation awarded by
the Tribunal is as follows:
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C.M.A.No.373 of 2021
Sl.No. Compensation awarded under the head Amount (in Rs.)
1. Functional Disability 10,72,500/-
2. Future Medical Expenses 1,30,000/-
3. Pain and suffering 1,00,000/-
4. Loss of Income 90,000/-
5. Medical expenses 78,390/-
(Medical Bills and artificial leg)
6. Loss of amenities 75,000/-
7. Transportation expenses 50,000/-
8. Additional Nourishment 50,000/-
9. Attender charges 22,500/-
10. Damages to clothes 2,000/-
Total 16,70,390/-
Rounded off to 16,70,400/-
The said sum was directed to be paid together with interest at 7.5% p.a. from
the date of claim petition till the date of realization.
8. Learned counsel for claimant submits that the claimant is a cleaner by
avocation. Due to the injuries suffered in the accident, the claimant’s right leg
above knee was amputated. Ex.P4 is the copy of the disability certificate issued
by the Government Institute of Rehabilitation Medicine, K.K.Nagar, Chennai,
wherein it is mentioned that the claimant suffers from locomotor disability and
that the diagnosis done in his case was right transfemoral amputation and that
he had 80% permanent physical impairment in relation to his right lower limb.
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C.M.A.No.373 of 2021
However, the Tribunal had fixed his disability only at 55%, which had resulted
in awarding an inadequate compensation of Rs.10,72,500/- under the head
‘functional disability. Thus, learned counsel prays this Court to fix the
disability at 80% and accordingly, enhance the compensation.
9. Per contra, learned counsel for Insurance Company made his
submissions supporting the award passed by the Tribunal.
10. This Court has considered the rival submissions and perused the
materials on record.
11. This Court finds that on account of the injuries sustained in the
accident, the claimant suffers from locomotor disability and his right leg above
knee was amputated and that he had 80% permanent physical impairment in
relation to his right lower limb. However, the Tribunal had fixed the disability
only at 55% based on Ex.P5 – Photographs of the claimant. The deceased is a
cleaner by avocation and hence, he would find it difficult to carry on his
avocation throughout his life due to the injuries suffered by him in the accident.
In such circumstances, this Court is of the considered view that it would be just
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C.M.A.No.373 of 2021
and reasonable to fix the disability at 80%. Accordingly, the compensation
payable under the head ‘functional disability/future loss of earning capacity’ is
recalculated as follows:
Monthly income : Rs. 13,000/-
Add: Future Prospects : Rs. 3,250/-
25% of Rs.13,000/- : ----------------------
Rs. 16,250/-
Annual income (16,250 * 12) : Rs. 1,95,000/-
Multiplier : x 13
--------------------
Rs.25,35,000/-
80% disability : Rs.20,28,000/-
12. Learned counsel for claimant submits that the Honourable Supreme
Court in the decision in B.Kothandapani vs. Tamil Nadu State Transport
Corporation Ltd., has held that considering the nature of injury suffered by the
claimant, compensation under both the heads viz., loss of earning power and
permanent disability can be granted.
13. As per the aforesaid judgment, this Court awards a sum of Rs.2,000/-
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C.M.A.No.373 of 2021
per percentage of disability under the head permanent disability. Accordingly, a
sum of Rs.1,60,000/- is awarded under such head.
14. Considering the nature of injuries suffered by the claimant, this Court
enhances the compensation payable under the heads ‘attender charges’ and
‘loss of amenities’ to Rs.1,00,000/- each. Further, the compensation awarded
under the head ‘transportation’ and ‘Additional nourishment’ is reduced to
Rs.20,000/- and Rs.22,000/- respectively. Since compensation has been
awarded under both the heads ‘loss of future earning capacity’ and ‘permanent
disability’, the amount of Rs.90,000/- awarded under the head ‘loss of income’
is set aside. Except this modification, the award of the Tribunal, in all other
aspects, is hereby confirmed.
15. Accordingly, the modified compensation payable would be:
Award of the
Compensation awarded under the Award of
Sl.No. Tribunal this Court
head (in Rs.) (in Rs.)
1. Functional Disability/Loss of earning 10,72,500/- 20,28,000/-
capacity
2. Permanent disability - 1,60,000/-
3. Future Medical Expenses 1,30,000/- 1,30,000/-
4. Pain and suffering 1,00,000/- 1,00,000/-
5. Loss of Income 90,000/- -
6. Medical expenses 78,390/- 78,390/-
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C.M.A.No.373 of 2021
(Medical Bills and artificial leg)
7. Loss of amenities 75,000/- 1,00,000/-
8. Transportation expenses 50,000/- 20,000/-
9. Additional Nourishment 50,000/- 22,000/-
10. Attender charges 22,500/- 1,00,000/-
11. Damages to clothes 2,000/- 2,000/-
Total 16,70,390/- 27,48,390/-
Rounded off to 16,70,400/- 27,48,400/-
In the result, the Civil Miscellaneous Appeal is partly allowed. The
compensation of Rs.16,70,400/- awarded by the Tribunal is hereby enhanced to
Rs.27,48,400/-. The Insurance Company is directed to deposit the enhanced
compensation of Rs.27,48,400/-, less the amount already deposited, together
with interest at 7.5% p.a. from the date of claim petition till the date of deposit
within a period of four weeks from the date of receipt of this judgment. On such
deposit being made, the claimant is entitled to withdraw the same on due
application. No costs.
[R.P.S., J] [S.K., J]
09.04.2021
Speaking order
Index:yes/no
gm
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C.M.A.No.373 of 2021
To
1.The IV Small Causes Court,
Chennai.
2.The VR Section,
High Court, Madras.
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C.M.A.No.373 of 2021
R.SUBBIAH, J
AND
S.KANNAMMAL, J
gm
C.M.A.No.373 of 2021
09.04.2021
https://www.mhc.tn.gov.in/judis/
