Madras High Court

B. Kuppusamy vs The Joint Secretary To Government on 19 April, 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 19.04.2021

CORAM

THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY

C.M.A.No. 2377 of 2017 and
C.M.P.No.10566 of 2017

B. Kuppusamy ...Appellant

Vs.

1. The Joint Secretary to Government,
Public Protocol Department,
Secretariat, Fort St. George,
Chennai - 9.

2. The District Collector of Nagapattinam,
Nagapattinam. .... Respondents

Prayer:

Civil Miscellaneous Appeal filed under Section 173 of Motor

Vehicles Act, against the judgment and decree dated 04.11.2016 made in

M.A.C.T.O.P.No.4679 of 2013 on the file of the Motor Accident Claims

Tribunal, Special Sub Court No.II, Small Causes Court, Chennai.

https://www.mhc.tn.gov.in/judis/
2

For Appellant : Mr.F.Terry Chella Raja

For Respondents : Mr.Y.T.Aravind Gosh
Additional Government Pleader
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JUDGMENT

Challenging the liabilities as well as the quantum of compensation

awarded by the Tribunal, the claimant has preferred this Civil

Miscellaneous Appeal.

2. The Tribunal awarded a contributory negligence in the ratio

of 50:50 for the rider of the two wheeler as well as the rider of the

Scorpio vehicle. The accident occurred on 10.07.2012 at about 22.30 hrs,

when the rider of the motor vehicle bearing Registration No. TN-22-T-

1470 made an attempt to cross the GST Road from West to East direction

at Katankolathur Junction, he met with an accident with Scorpio LMV

Omni bus bearing Registration No.TN-01-AG-3333 driven by its driver.

3. The learned counsel appearing for the appellant submitted

that the Tribunal fixed in the ratio of 50:50 a contributory negligence

against the rider of the two wheeler and rider of Scorpio vehicle. The

driver of Scorpio LMV Omni bus, who drove the vehicle in a rash and https://www.mhc.tn.gov.in/judis/

negligent manner, hit the two wheeler. After noticing the movement of

vehicle on the main road, the rider made an attempt to cross the GST

Road. However, the driver who drove the vehicle Scorpio Omni bus in a

rash and negligent manner hit the two wheeler and thereby, the rider of the

two wheeler sustained grievous injuries. Thereafter, he was admitted in

SRM Hospital.

4. Further, he submitted that initially an FIR was filed on the

complaint made by the driver of the Scorpio vehicle. However, the charge

sheet has been filed, in which it is stated that the accident occurred due to

the rash and negligent driving on the part of the Scorpio vehicle.

Therefore, the learned counsel for the appellant submitted that fastening

50% liability as the rider of the two wheeler is not proper and the same is

liable to be set aside.

5. The learned counsel appearing for the respondents submitted

that the accident occurred only due to the negligence on the part of the two

wheeler. The rider of the two wheeler should have made all precautionary

steps before crossing the road. The rider of two wheeler made an attempt

to cross the road, all of a sudden, without noticing the Scorpio on the GST https://www.mhc.tn.gov.in/judis/

Road, thus, the accident had occurred. The rider has not taken any

precautionary measures before crossing the road. The said aspect has been

dealt with by the Tribunal in proper manner and the Tribunal fixed the

contributory negligence on the part of the rider of the two wheeler as well

as the rider of the Scorpio in the ratio of 50:50 and the same is just and

proper.

6. Upon a perusal of the rough sketch, it is clear that the rider of

the two wheeler made an attempt to cross the road. When the rider of two

wheeler made an attempt to cross the GST Road, he should have taken a

look at both side of the road to verify whether any vehicle is coming or

not, but in the present case, apparently no such precautionary steps appear

to have been taken by the rider. In fact, in the present case, initially the

driver of the Scorpio only gave a complaint to the Police Station.

Thereafter, in the charge sheet, it has been stated as if the accident

occurred due to a rash and negligent on the part of the driver of the

Scorpio vehicle. However, on a perusal of the charge sheet, it is seen that

it is simply stated therein that due to rash and negligence of the driver of

the Scorpio, the accident had occurred. It is only a ten line charge sheet.

Whether the Investigating Officer examined any person and whether he https://www.mhc.tn.gov.in/judis/

perused the entire materials, all these aspects are not available and this

cannot be considered at any cost as thorough investigation report. The

fact remains that the rider of the two wheeler has not taken any steps

before crossing the road to verify the movement of vehicle in the GST

Road, and that was the reason why the accident had occurred. The

Tribunal has also dealt with this aspect. Thus, I do not find any fault in

the judgment and decree of the Tribunal with regard to the fixation of the

liability on the part of the rider of the two wheeler as well as the driver of

the Scorpio Omni bus. Hence, the fixation of liability by the Tribunal in

the ratio is 50:50 stand confirmed.

7. The learned counsel appearing for the appellant submitted

that the accident was of the year 2012. The income of the deceased was

fixed by the Tribunal at Rs.6,500/- and the Tribunal awarded a sum of

Rs.2,000/- per percentage of disability as compensation for the disability.

The disability Certificate issued by the Doctor which was marked as

Ex.P12. The Doctor fixed at 70% as disability. The Tribunal has taken

the disability at 65% and awarded the compensation. He would submit

that instead of awarding the compensation based on the percentage, it

should have applied the multiplier method. In the present case, the https://www.mhc.tn.gov.in/judis/

injuries are severe in nature. Therefore, the counsel requested to fix the

Claimant's functional disability to the extent of not less than 40%.

8. 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. In the

present case, the claimant has sustained the following injuries:-

(i) Right Ankle joint exposed with abnormal mobility.

(ii) Swelling Right Thigh? Fracture of femur.

(iii) Abrasion of 5 X 4 cm, in the left knee.

(iv) Abrasion of 5 X 7 cm. in the right forearm.

(v) Abrasion of 3 X 2 cm in the left foot.

The deceased had undergone treatment for 144 days in the hospital, which

shows that the injuries are grievous in nature which include the head

injuries. Therefore, I am of the view that this case is a fit case to apply

multiplier method to award compensation for disabilities. The disability

certificate was marked as Ex.P12. The doctor quantified the disability at

70%. The Tribunal while awarding the compensation, considered this

claimant's disability at 65% and a sum of Rs.3,000/- was awarded for

every percentage of the disability. However, this Court as already https://www.mhc.tn.gov.in/judis/

decided, as the deceased was in hospital for 144 days and sustained

grievous injuries this case would be fit case to apply multiplier and award

compensation. Hence, I would like to apply the multiplier method as

stated above and while applying multiplier method, this Court is of the

view that the functional disability would be taken as 30%. The Tribunal

awarded a sum of Rs.75,000/- for the loss of income for a period of 12

months, by taking the loss of income of the deceased as Rs.6,500/-p.m.

However, in the present case, accident occurred in the year of 2012. 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/- in the accident of 2008.

Therefore, this Court is of the view, for the accident of the year 2012, it

would be appropriate to fix the notional income as Rs.8,000/- p.m.

Accordingly, the notional income of this claimant is fixed as Rs.8,000/-

p.m. As this Court fixed the notional income as fixed Rs.8,000/-, the said

loss of income awarded by the Tribunal a sum of Rs.78,000/- stand

increased to Rs.96,000/- (Rs.8,000x12) and with regard to all other

income heads, the amount awarded by the Tribunal is just and proper and

it need not be interfered with. Accordingly, the award with respect to

other heads shall stand confirmed.

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

9. In the present case, the age of the injured at the time of

accident was 27 years and multiplier applicable is "17". After hearing

both sides as well as the perusal of this decision of the Apex Court for

disability, this Court is of the view towards future prospects needs to be

added at 40%. The functional disability is determined at 30%. Thus, the

loss of income is redetermined by this Court as follows:-

(i) Rs.8,000 + 40% of Rs.8000/-

                    ( Rs.8,000 + Rs.3,200)                      :          Rs.11,200.00
                    (ii) Rs.11,200 x 12 x 17                    :       Rs.22,84,800.00

                    (iii) Rs.22,84,800 x 30/100                 :       Rs.6,85,440.00

Accordingly, the compensation to the claimant is re-determined by this

Court in the following manner:

(i) Loss of earning capacity : Rs.6,85,440.00

(ii) Pain and Suffering : Rs.50,000.00

(iii) Loss of income : Rs.96,000.00

(iv) Transport for Hospital : Rs.20,000.00

(v) Extra-Nourishment : Rs.50,000.00

(vi) Damage to Clothing and Articles : Rs.2,000.00

(vii) Medical Expenses : Rs.3,500.00

(viii) Attending Charges : Rs.50,000.00 https://www.mhc.tn.gov.in/judis/

(ix) Loss of Amenities : Rs.25,000.00

(x) Disfigurement : Rs.25,000.00

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                             Total                              : Rs.10,06,940.00
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