Madras High Court

Ezhilarasi @ Ezhilarasu @ Arasu vs Geetha on 15 April, 2021

                                                                             C.M.A.No.3065 of 2019

                            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 15.04.2021

                                                      CORAM

                                   THE HON'BLE MR.JUSTICE C.SARAVANAN

                                             C.M.A.No.3065 of 2019

                 Ezhilarasi @ Ezhilarasu @ Arasu,
                 W/o.Chinraj                                           ... Appellant

                                                        Vs.
                 1.Geetha
                 2.ICICI Lombard General Insurance
                     Company Limited,
                   No.84 & 85, Arihand Plaza Waltax Road,
                   Chennai – 600 003.                                        ... Respondents

                       Civil Miscellaneous Appeal filed under Section 173 of Motor
                 Vehicles Act, 1988 against the Judgment and Decree dated 12.07.2017
                 made in M.A.C.T.O.P.No.4549 of 2009, on the file of the Motor
                 Accidents Claims Tribunal and Special Sub Judge No.2 deal with
                 M.C.O.P.Cases, Small Causes Court, Chennai.

                                   For Appellant     : Ms.A.Subadra
                                   For Respondents   :
                                   For R1            : No appearance
                                   For R2            : Mr.K.Poomalai


                                                     JUDGMENT

The claimant is the appellant in this appeal and is aggrieved by the

impugned Judgement and decree dated 12.07.2017 passed by the Motor

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Accidents Claims Tribunal and Special Sub Judge No.2, Small Causes

Court, Chennai in M.A.C.T.O.P.No.4549 of 2009.

2. By the impugned Judgment and decree, the Tribunal has

awarded a sum of Rs.2,07,500/- as compensation under the following

heads:-

                        S.No                        Particulars            Amount
                       1.          Compensation for Disability       Rs.1,20,000/-
                       2.          Pain and Sufferings               Rs. 25,000/-
                       3.          Loss of Income                    Rs. 19,500/-
                       4.          Transport to hospital             Rs.   5,000/-
                       5.          Extra-nourishment                 Rs. 10,000/-

6. Damage to clothing and articles Rs. 3,000/-

                       7.          Medical Expenses                  Rs.   5,000/-
                       8.          Mental Agony to the petitioner    Rs. 10,000/-
                       9.          Attending Charges                 Rs. 10,000/-
                                   Total                             Rs.2,07,500/-

3. The Nature of Injuries suffered by the appellant/claimant as per

Ex.P4-Disability Certificate, is as follows:-

(i) Head and Neck Injury

(ii) LOC CTB: Frontal Lobe

(iii) Concussion brain

(iv) Compression C4, C5 Neck and LS Strain, LS Hard Support

(v) Post Traumatic head ach guiltiness tremors left hand and leg, memory deficit, cannot carry bead loads

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(vi) Fibrous C4, C5 joint & Para Spinal Muscle cannot bend the neck and head.

(vii) Fibrous L5S joint & Para Spinal Muscle cannot work as coolie.

4. The learned counsel for the appellant/claimant submits that

though the Tribunal has considered the evidence of P.W.2 and

Ex.P4-Disability Certificate, it has awarded only a sum of Rs.1,20,000/-

towards disability at 40% at Rs.3,000/- per percent. She further submits

that the Tribunal ought to have awarded compensation by adopting

multiplier as per the decision of the Hon'ble Supreme Court in Raj

Kumar Vs Ajay Kumar and another, (2011) 1 SCC 343.

5. Per contra, the learned counsel for the 2nd respondent/Insurance

Company submits that the impugned Judgment and decree passed by the

Tribunal is well reasoned and requires no intereference. He further

submits that the Tribunal has correctly assessed the permanent disability

at 40% and has awarded a sum of Rs.1,20,000/- at Rs.3,000/- per

percentage and therefore submits that there is no case made out for

interference. He further submits that the Tribunal has awarded a just

compensation and the award amount may be confirmed, this appeal may

be dismissed.

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6. Heard the learned counsel for the appellant and the second

respondent.

7. There is permanent disability. The evidences on record and the

nature of injuries suffered by the appellant/claimant clearly indicate that

the appellant/claimant cannot be work as a coolie. As per the decision of

the Hon'ble Supreme Court in Raj kumar Vs Ajay Kumar and another,

2011 (1) SCC 343, the compensation in case of permanent disability has

to be determined by applying the multiplier with reference to functional

disability.

8. The relevant paragraphs from the decision reads as under:-

“13. We may now summarise the principles

discussed above:

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it

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differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

14. The assessment of loss of future earnings is explained below with reference to the following illustrations:

Illustration `A': The injured, a workman, was aged 30 years and earning Rs.3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:

a) Annual income before the accident : Rs.36,000/-

b) Loss of future earning per annum (15%

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of the prior annual income) : Rs. 5400/-

c) Multiplier applicable with reference to age : 17

d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-

Illustration `B': The injured was a driver aged 30 years, earning Rs.3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows:

a) Annual income prior to the accident : Rs.36,000/- .

b) Loss of future earning per annum (75% of the prior annual income) :

Rs.27000/-.

c) Multiplier applicable with reference to age : 17

d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-

Illustration `C': The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows:

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a) Minimum annual income he would have got if had been employed as an Engineer : Rs.60,000/-

b) Loss of future earning per annum (70% : Rs.42000/-

of the expected annual income)

c) Multiplier applicable (25 years) : 18

d) Loss of future earnings : (42000 x 18) : Rs.

7,56,000/-

[Note : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra (supra)].

15. After the insertion of section 163A in the Act (with effect from 14.11.1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the second schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation :

"5. Disability in non-fatal accidents :

The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents : -

Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.

PLUS either of the following :-

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(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."

16. We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favorable. This forces the injured claimants to approach `professional' certificate givers whose evidence most of the time is found to be not satisfactory. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of

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apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses.”

Ultimately, the Court summarized as follows:-

“19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or

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Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.”

9. Considering the fact that the appellant/claimant was a manual

labour who was working as coolie, it would have been appropriate to

award compensation by applying the above decision of the facts of the

case.

10. Therefore, the compensation awarded by the Tribunal under the

head of disability for a sum of Rs.1,20,000/- is hereby enhanced to

Rs.4,68,000/- under the head of loss of dependency by applying the

multiplier of 15.

11. That apart, the appellant/claimant would also be entitled to

further compensation towards future prospects of 40%. Therefore, the

amount awarded by the Tribunal towards loss of earning for a sum of

Rs.19,500/- has to be reversed. As far as the other conventional heads are

concerned, they are not disturbed as the amount awarded appears to be

reasonable.

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12. Thus, the compensation awarded by the Tribunal is

re-quantified as follows:-



                   Sl.No.      Heads of   Amount Awarded           Amount           Award
                             Compensation by the Tribunal        awarded by     confirmed or
                                                                  this Court     enhanced or
                                                                                  reduced or
                                                                                granted or set
                                                                                     aside
                   1.       Compensation         Rs.1,20,000/-    Rs.4,68,000/- Enhanced
                            towards                              (6500x12x15*
                            Disability                              x40/100**)
                   2.       Pain             &   Rs. 25,000/-      Rs.25,000/- Confirmed
                            Suffering

                   3.       Transportation       Rs.   5,000/-    Rs. 5,000/- Confirmed
                            Charges

                   4.       Extra-               Rs. 10,000/-     Rs. 10,000/- Confirmed
                            nourishment

                   5.       Damage         to    Rs.   3,000/-    Rs. 3,000/- Confirmed
                            clothing      and
                            articles
                   6.       Medical              Rs.   5,000/-    Rs. 5,000/- Confirmed
                            Expenses
                   7.       Mental agony         Rs. 10,000/-     Rs. 10,000/- Confirmed


                   8.       Attender             Rs. 10,000/-     Rs. 10,000/- Confirmed
                            Charges
                            Total                Rs.2,07,500/-   Rs.5,36,000/- Enhanced      by
                                                                               Rs.3,28,500/-

*Proper Multiplier of 15 is fixed by this court as per the decision of the Hon'ble Supreme Court in Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 12.

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** Future prospects is added by this Court at 40% as per the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and Others, (2017) 16 SCC 680.

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

deposit the enhanced amount of compensation of Rs.5,36,000/- 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 six weeks from the date of receipt of a copy of this

Judgment.

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

Company, the appellant/claimant is permitted to withdraw the same

together with interest accrued thereon, less any amount already

withdrawn in the same proportion as was ordered by the Tribunal.

15. This Civil Miscellaneous Appeal stands partly allowed with the

above observations. No costs.