Madras High Court
Paranthaman vs S.Devika on 19 August, 2021
C.M.A.Nos.4699 of 2019 & 1694 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.08.2021
CORAM :
THE HON'BLE MR.JUSTICE N.KIRUBAKARAN
and
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.Nos.4699 of 2019 & 1694 of 2020
and
C.M.P.Nos.12487 of 2020 & 2215 of 2021
C.M.A.No.4699 of 2019
Paranthaman ... Appellant
Vs
1.S.Devika
2.M/s.Reliance General Insurance Co.Ltd.,
Reliance House, 6th Floor,
No.6, Haddows Road, Nungambakkam,
Chennai-6. ...Respondents
C.M.A.No.1694 of 2020
M/s.Reliance General Insurance Co.Ltd.,
Reliance House, 6th Floor,
No.6, Haddows Road, Nungambakkam,
Chennai-6. ... Appellant
Vs.
1.Paranthaman
2.S.Devika
..Respondents
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
COMMON PRAYER: Civil Miscellaneous Appeal filed under Section
173 of the Motor Vehicles Act, 1988 against the Judgment and Decree
dated 03.09.2019 made in M.C.O.P.No.7349 of 2015 on the file of the
Motor Accident Claims Tribunal / Special Sub Court No.I / Small Causes
Court, Chennai.
For Appellant in CMA.No.4699/19 : Mr.P.Thangavel
For Appellant in CMA.No.1964/20 : Mr.S.ArunKumar
For Respondents in CMA.No.4699 /19
For R1 :Set ex-parte before the Tribunal
For R2 :Mr.S.Arunkumar
For Respondents in CMA.No.1964/2020
For R1 :Mr.P.Thangavel
For R2 :Set ex-parte before the Tribunal
JUDGMENT
(Judgment of the Court was delivered by T.V.THAMILSELVI, J.)
The appellants in both these Civil Miscellaneous Appeals are
challenging the quantum of compensation awarded by the Motor
Accident Claims Tribunal / Special Sub Court No.I / Small Causes Court,
Chennai in M.C.O.P.No.7349 of 2015, dated 03.09.2019.
2.The appellant in CMA.No.4699 of 2019 is an injured who
sustained grievous injuries in the accident which happened on
24.06.2015, due to the rash and negligent driving of an Indigo car which
belongs to the 1st respondent insured with the 2nd respondent / insurance
company.
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
3.At the time of accident, the appellant /injured was riding
pillion along with another victim namely Rajendiran, who was the driver
of the two wheeler and met with the accident. Both of them filed
MCOP.Nos.7340 of 2015 and 7349 of 2015 before the Special Sub Court
No.I, Motor Accident Claims Tribunal.
4.Both the cases were tagged together and the Tribunal passed
an Award by fixing negligence on the part of the driver of the car, which
was insured with the 2nd respondent.
5.Aggrieved by the said order, the insurance company had
preferred an appeal in CMA.No.1694 of 2020 and the victim
Parandaman in MCOP.NO.7349 of 2015 had preferred an appeal for
enhancement of compensation in CMA.No.4699 of 2019.
6.Heard both sides and perused the materials placed before this
Court.
7.The learned counsel for the appellant / injured in
CMA.No.4699 of 2019 submitted that while passing the award, the
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
Tribunal erroneously fixed a sum of Rs.6,500/- as monthly income
instead of fixing the monthly income of the appellant as Rs.15,000/-. He
relied on the judgment of the apex court in the the case of SYED SADIQ
V. DIVISIONAL MANAGER, UNITED INDIA INSURANCE
COMPANY LTD.(2014) 2 SCC 735, which relates to the accident that
happened in the year 2008 in which the monthly income of a vegetable
vendor was fixed at Rs.6,500/-. But in the case on hand, accident
occurred during 2015. So the monthly income of the injured ought to
have fixed on a higher scale. Therefore, he prays to enhance the
compensation.
8.Apart from that, he also prays to enhance the Attendant
charges of Rs.2,000/- per month as per recent ruling reported in CDJ
2020 SC 127 and also prays to adopt 100 % functional disability for loss
of income, based upon the medical board report Ex.C.1.
9.The learned counsel for the insurance company strongly
objected to the enhancement claimed by the injured and submitted that
the Tribunal without considering any medical record has erroneously
concluded about the permanent disablement of the injured and awarded
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
exorbitant compensation, which is liable to be set aside. He also
submitted that Ex.C1 medical certificate was not properly appreciated
and the award towards future loss of income is also exorbitant.
Accordingly, he prayed to set aside the award.
10.The questions of law that arise for consideration are as
follows;
(i) whether the Tribunal has erroneously fixed the monthly
income of Rs.6,500/- in MCOP.No.7249 of 2015 without considering the
fact, that the accident happened in the year 2015 and for that purpose,
the notional income ought to have been fixed at Rs.15,000/- ?
(ii) Whether the Tribunal has erroneously appreciated the
medical certificate Ex.C1 and fixed the future loss as well as the
permanent disability in favour of the appellant in CMA.No.4699 of
2019 ?
11.The facts reveal that on 24.06.2015 at about 9.hrs, the
injured / appellant / Parandaman was travelling as a pillion rider in the
two wheeler driven by his friend / another injured Rajendiran and
proceeding from Tambaram to Mettupalayam road at Panruti Junction.
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
At that time, an Indigo car belonging to the 1st respondent came in a rash
and negligent manner and hit behind the two wheeler and thereby both
sustained grievous injuries. The accident occurred only due to the
negligent act of the driver of the car, which belongs to the 1st respondent
and insured with the 2nd respondent. The 1st respondent / owner remained
ex-parte before the Tribunal.
12.The insurance company alone contested the case. To prove
his claim, on the side of the injured, Ex.P1 to Ex.P6 were marked and
P.W.1 was examined. On the side of the respondent, R.W.1 was
examined and Ex.R1 to Ex.R3 were marked.
13.The claimant / injured prima facie proved that the accident
happened due to the rash and negligent driving of the driver, by
producing the copy of the FIR which is marked as Ex.P.1 and witnesses
were examined as P.W.1 and P.W.2. This fact was not denied by the 1st
respondent either by filing counter or by adducing evidence at the time of
trial. So the Tribunal has rightly concluded that the accident happened
due to negligent driving by the driver of the vehicle (Indigo Car).
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
14.The 2nd respondent / Insurance Company has also not
adduced any contrary evidence to disprove the claimant's claim. So the
Tribunal rightly fixed the negligence on the driver of the car.
15.Now, in this appeal, the claimant prays to enhance the
award amount contending, that the monthly income was erroneously
fixed Rs.6,500/- instead of fixing Rs.15,000/- as notional income by the
Tribunal in the year 2015.
16.To substantiate his argument, the learned counsel for the
appellant submits that as per the ratio laid down in the judgment of the
apex court in the the case of Syed Sadiq, Rs.6,500/- was fixed by the
Tribunal as notional income concerning an accident of the year 2008. In
the instant case, the accident happened in the year 2015. By this time,
due to fluctuation of the prices and prevailing, cost the monthly income of
the injured ought to have been fixed at Rs.15,000/- and he prayed to
modify the monthly income and for enhancement of the Award.
17.The accident happened in the year 2015, during which time
the appellant was working as a construction labourer and the same was
proved by producing the Tamil Nadu Construction Workers Welfare
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
Board Chennai, Identity card marked as Ex.P.23.
18.As per the prevailing situation, per day, he would earn only
Rs.500/- as a construction labour in the construction field. So the
Tribunal without appreciating this fact erroneously fixed Rs.6,500/- as
monthly income. Accordingly, the Tribunal erroneously fixed a sum of
Rs.6,500/- as monthly income and the same is set aside and the notional
income of Rs.15,000/- is fixed.
Calculation: 15,000 x 12 x 14 x 100% = 25,20,000/-
Annual Income: 15,000 x 12 =1,80,000/-
19.With regard to functional disability, the Tribunal fixed
as 75 %. But the counsel for the insurance company submitted that as per
medical proof – Ex.C1, functional disability ought not to have been fixed.
For that, he relied on the document Ex.C1, the disability certificate issued
by the Regional Medical Board, Govt. Kilpauk Medical College, Hospital,
Chennai. However, it is seen that the said accident, he sustained post
traumatic quadriparesis with C3-C4 disc prolapse with contusion of
spinal cord and those injuries are grievous in nature.
20.Admittedly, he is a construction labourer and due to the said
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
grievous injuries, he suffered 100% functional disability, but the Tribunal
erroneously fixed it as 75% and the same is liable to be enhanced to
100%. Accordingly the functional disability is fixed as 100%, as rightly
pointed out by the counsel for the claimant / injured, as per the ratio laid
down in CDJ 2020 SC 127. Taking 100% of functional disability and
adopting multiplier 14, as per the Judgment of the Supreme Court in
"Sarala Varma Vs. Delhi Transport Corporation reported in 2009 (2)
TNMAC 677". Loss of earning capacity due to disability 1,80,000 x 14 x
100% = 25,20,000/-.
21.The Attendant charge is to be fixed as Rs.2000/- per month
for 25 years. Further, the Tribunal failed to award compensation under
the head of loss of permanent disability. By following the judgment of the
Hon'ble apex court reported in 2011(2)TNMAC 62 (SC) as in the case of
Kothandapani case wherein at para.12, it is enhanced as follows.
22.Considering all these facts, the compensation is enhanced as
follows:
S.No. Heads Amount
1. Loss of earning capacity Rs.25,20,000
=15000 x 12 x14 x 100%
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
S.No. Heads Amount
2. Medical Expenses Rs.1,00,293/-
3. Pain & Suffering & Mental Agony Rs.1,00,000/-
4. Loss of enjoyment and amenities Rs. 50,000/-
5. Extra Nourishment / Special diet Rs. 50,000/-
6. Attender Charges for 25 years Rs.6,00,000/-
=2,000 x 12 x 25
7. Transport Expenses Rs. 15,000/-
Total Rs.34,35,293/-
Round off to Rs.34,35,300/-
23.The insurance company has not adduced any evidence
contrary to the medical records produced on the side of the injured. The
Tribunal has rightly appreciated those documents which requires no
interference by this Court. Hence the appeal filed by the claimant in
CMA.No.4699 of 2019 is allowed by enhancing the amount from
Rs.11,21,300/- to Rs.34,35,300/-.
24.The appeal filed by the Insurance Company in Civil
Miscellaneous Appeal.No.1694 of 2020 is dismissed as devoid of merits.
25.The award passed by the Tribunal at Rs.11,21,300/- is
enhanced to Rs.34,35,300/- and rate of interest at 7.5% per annum as
awarded by the Tribunal is confirmed and the appeal in C.M.A.No.4699
of 2019 is allowed. The Insurance company is directed to deposit the
entire modified award amount before the Tribunal as tabulated above,
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
along with interest and costs, after deducting the amount, if any, already
deposited, within a period of ten weeks from the date of receipt of a copy
of this Judgment. On such deposit being made, the Tribunal is directed
to transfer the amount to the claimants / appellant in C.M.A.No.4699 of
2019 account through RTGS within a period of two weeks. The appellant
in CMA.No.4699 of 2019 is directed to pay court fee corresponding to
the proportionate enhancement of compensation made in this appeal.
26.For reporting compliance call the matter after ten weeks
and the appellant / Insurance Company shall file an affidavit showing
compliance of the order passed by this Court, failing which the
Chairman-cum-Managing Director and Chief Financial Officer-cum-Chief
Accounts Officer of the appellant – Insurance Company shall appear
before this Court.
(N.K.K.,J.) (T.V.T.S.,J.)
19.08.2021
rri
Index: Yes/No
Speaking Order: Yes/No
N.KIRUBAKARAN, J.
and
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C.M.A.Nos.4699 of 2019 & 1694 of 2020
T.V.THAMILSELVI, J.
rri
To
1. The Motor Accident Claims Tribunal,
Special Sub-Court No.I, Small Causes Court, Chennai.
2.The Section Officer, VR Section, High Court, Madras.
C.M.A.Nos.4699 of 2019
& 1694 of 2020
19.08.2021`
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