Madras High Court
G.K.Ravi vs M/S.Ideal Beach Resort on 3 December, 2021
CMA.No.830 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CMA No.830 of 2020
G.K.Ravi ... Appellant
Vs
1.M/s.Ideal Beach Resort,
No.3, 2nd Street, Dr.Thirumurthy Nagar,
Nungambakkam, Chennai-34.
2.The New India Assurance Company Ltd.,
No.29/30, Dr.Radhakrishnan Salai,
Mylapore, Chennai-4. ... Respondents
Prayer: This Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the Decree and Judgment order dated
30.04.2015 in M.C.O.P.No.739 of 2009 on the file of the Motor Accidents
Claims Tribunal, III Judge, Small Causes Court, Chennai, for enhancement
of compensation.
1/10
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CMA.No.830 of 2020
For Appellant : Ms.Ramya V.Rao
For Respondents : Ms.Salomi (for R2)
for Mr.C.Ramesh Babu
R1 – Notice dispensed with
JUDGMENT
The claimant who had suffered grievous injuries in a motor
accident that occurred on 06.08.2008 is on appeal terming the compensation
of Rs.2,64,942/- granted to him as meagre.
2.According to the claimant, the accident occurred due to the rash
and negligent driving of the car bearing registration No.TN01 AB 8489
belonging to the 1st respondent and insured with the 2nd respondent
Insurance Company. It was claimed that the claimant was riding a bicycle on
the East Coast Road in front of Swagath Hotel, Mahabalipuram and the Car
bearing registration No.TN01-AB-8489, proceeding towards
Mahabalipuram from Chennai driven in a rash and negligence manner by
the driver and hit the petitioner's bicycle, as a result of the impact, the
petitioner was thrown out of his bicycle and fell on another Car bearing
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CMA.No.830 of 2020
registration No.TN-07-W-1415, which was proceeding from Chennai
towards Mahabalipuram.
3.According to the claimant, he suffered grievous injuries as a
result of the accident. It was claimed that his hearing was impaired totally
and he also underwent surgeries to set right the fractures that he had
suffered. The claimant assessed the compensation at Rs.10,00,000/-. The 1st
respondent owner of the vehicle remained exparte. The Insurance Company
resisted the claim contending that the Motor Car bearing registration
No.TN01-AB-8489 was not responsible for the accident. It was claimed that
the injured claimant suddenly crossed the road with teapot in his hand and
he was hit by the Car bearing registration TN-07-W-1415 which was
coming at excessive speed. The petitioner, who was thrown out the bicycle
in fell of the wind screen of the Car bearing registration TN-01-AB-8489.
Therefore, according to Insurance Company, there was no negligence on the
part of the driver of the Car that was insured with it and hence, the
Insurance Company cannot be made liable.
4.During trial, the petitioner examined himself as PW1 and two
Doctors were examined as PW2 and PW3. Exhibits P1 to P21 were marked.
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CMA.No.830 of 2020
The Sub-Inspector of Police was examined as RW1 and Exhibits R1 and R2
were marked. R1 is Accident Register and R2 is Final Report.
5.The Tribunal on consideration of the evidence on record,
concluded that the accident occurred due to the rash and negligence driving
of the car bearing registration No.TN01-AB-8489. The F.I.R. was also
registered against the Car on the strength of the complaint given by one
Mr.Balasubramaniam. The attempt by the Insurance Company to prove that
the Car bearing Registration No.TN01-AB-8489 was not negligent, failed
because, it did not examine the investigation officer though it attempted to
produce the accident register. Thus, the Tribunal concluded that the Car
bearing registration No.TN01-AB-8489 was responsible for the accident
and the Insurance Company as the insurer is liable to pay the compensation.
On the quantum, the Tribunal granted the following amounts under the
following heads:-
S.No. Heads Amount
Rs.
1 Loss of Income 15,000
2 Transport to Hospital 7,000
3 Extra nourishment 7,000
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CMA.No.830 of 2020
S.No. Heads Amount
Rs.
5 Medical Expenses 37,442
6 Attender charges 3,000
7 Pain and suffering 35,000
8 Disability at 80% at Rs.2,000/- per
percentage 1,60,000
Total 2,64,942
6.Ms.Ramya V.Rao, learned counsel for the appellant would
vehemently contend that the Tribunal erred in not applying the multiplier
method to assess the quantum of compensation. According to her, when the
fact that there is a hearing impairment is admitted and the fact that it is a
functional disability is also admitted, the Tribunal was not justified in
granting compensation on percentage basis. According to her, the Tribunal
should have adopted percentage basis and fixed the compensation.
7.The learned counsel for the claimant would fairly concede that
the assessment of the disability at 80% by the Tribunal is not correct. The
documents that are produced would show that the petitioner had suffered
impairment in the hearing. The Tribunal had observed that the
appellant/claimant was able to answered questions in cross examination
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CMA.No.830 of 2020
without difficulty and therefore, there is no significant impairment of the
hearing.
8.This observation of the Tribunal is against the documentary
evidence that is available on record.
9.The speech for pathologist and audiologist report, which has
been marked as a document shows that the petitioner has lost reflex
completely. The audiogram report also shows that the reflex has been lost
completely in both the ears. This is definitely a serious hearing disorder. The
disorder would have an impact on the earning capacity of the individual,
more so, a person like the petitioner, who is working as a Watchman.
10.The audiogram also shows considerable loss of hearing, even
assuming that both the Doctors examined before the Tribunal had given an
exaggerated the percentage of disability. The Tribunal was not right in
adding of the percentage and coming to the conclusion that there was 80%
permanent partial disability and adopting the percentage method and
awarding a sum of Rs.1,60,000/- as compensation. Once, it is shown that the
disability suffered is a functional disability and there is a possibility of the
said disability having impact of the earning power of the victim, then the
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CMA.No.830 of 2020
Tribunal ought to have applied the multiplier method.
11.Whatever be the percentage of the disability, if it is a
functional disability having an impact of the earning power, the multiplier
method should be adopted and not the percentage method. The percentage
method can be adopted only for a permanent partial disability which does
not have an effect of the earning power or which is not a functional
disability. I am therefore of the opinion that the Tribunal erred and adopting
the percentage method. On the other hand it should have adopted the
multiplier method as loss of hearing is a functional disability. Though the
Doctors are given a very high percentage from the report of the speech
pathologist, it could be seen that the reflex is totally absent in all
frequencies. The same may not result in a complete functional disability, but
it will definitely have a bearing on the earning capacity.
12.Considering the reports of both the Doctors, I am of the
opinion that the said functional disability could be fixed at 40%. If the
functional disability fixed as 40% and the compensation is granted on the
basis of the multiplier method taking the monthly income at Rs.3,000/-, the
compensation for permanent disability / loss of earning power would be as
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CMA.No.830 of 2020
follows:
3000X40/100X12X14, equivalent to Rs.2,01,600/-.
13.The Tribunal has awarded a sum of Rs.35,000/- towards pain
and sufferings. The learned counsel for the appellant would submit that it is
too low, considering the fact that the claimant was hospitalized nearly 39
days. The claimant had undergone surgeries, there was a implant exit
surgery done. All these would have definitely caused considerable pain and
sufferings. Therefore, I assess the compensation for pain and suffering at
Rs.75,000/-. The award of the Tribunal on the other heads is reasonable and
the same is confirmed.
14.In the result, the Civil Miscellaneous Appeal is allowed. The
compensation is fixed as follows:
S.No. Heads Amount
Rs.
1 For disability/loss of earning power Rs.2,01,600
2 For Pain and suffering Rs.75,000
3 Loss of Income 15,000
4 Transport to hospital 7,000
5 Extra nourishment 7,000
7 Medical Expenses (on bills) 37,442
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CMA.No.830 of 2020
S.No. Heads Amount
Rs.
8 Attender charges 3,000
Total 3,46,542
The same is rounded off to Rs.3,50,000/-. The Insurance Company is
granted 6 weeks time to deposit the enhanced compensation with
appropriate interest as granted by the Tribunal, to the credit of
MCOP.No.739 of 2009. It is made clear that the claimant will not be entitled
to interest on the enhanced compensation of Rs.81,600/- for a period of 702
days in view of the order dated 26.02.2020 in CMP No.13871 of 2017. No
costs.
03.12.2021
vs
Index: Yes/No
Speaking order/Non speaking order
To
1.The Motor Accidents Claims Tribunal,
III Judge, Small Causes Court, Chennai.
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
CMA.No.830 of 2020
R.SUBRAMANIAN, J.
vs
CMA No.830 of 2020
03.12.2021
https://www.mhc.tn.gov.in/judis
