Madras High Court

Ramamurthy vs Srinivasan on 25 February, 2021

CMA No.759 of 2012

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 25.02.2021

CORAM:

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR

CMA.No.759 of 2012

Ramamurthy ... Appellant/ Claimant

Vs.

1. Srinivasan

2. The Manager, United India Insurance Co. Ltd.,
Divisional Office-3, 58, Purasaiwalkkam High road,
Chennai-7. ... Respondents/ Respondents

This Civil Miscellaneous Appeal has been filed under

Section 173 of the Motor Vehicles Act, 1988, against the decree and

judgment dated 17.11.2003 passed in M.C.O.P.No.247 of 2000 by the

Additional District Judge, Motor Accident Claims Tribunal, Tiruvallur.

For Appellant : Mr.M.L.Ramsh

For II respondent : Mrs. R.Rathnathara

for I respondent : Notice dispensed with

Page 1 of 15
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CMA No.759 of 2012

JUDGMENT

Not satisfied with the quantum of compensation, the

claimant is before this court to enhance the compensation awarded by

the Tribunal.

2. The claimant has filed a claim petition before the

Tribunal seeking compensation of Rs.14,00,000/- for the injuries

sustained by him in a rod accident that took place on 18.01.1999.

3. The brief case of the claimant is as follows: On

08.01.1999, at 6.30 pm. the claimant was walking along the

M.T.H.Road, Villivakkam and while nearing the place, opposite to

Kalpana Hotel, a speedy lorry bearing registration No.TAR 4999

dashed against him, thereby he sustained fracture on his left leg and

also grievous injuries all over his body and he was admitted to

Government Hospital, Chennai and was taking treatment as inpatient

for a period of five months. According to the claimant, the rash and

negligent driving of the driver of the lorry was the cause of accident

and since the first respondent/ owner of the vehicle insured his lorry

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with the second respondent/ insurance company, both of them are liable

to pay compensation.

4. The claim petition was resisted by the insurance

company by filing counter affidavit.

5. Before Tribunal, the claimant and four other witnesses

were examined as PW1 to PW5 and Ex.P1 to Ex.P16 were marked. On

the side of the respondents, no oral and documentary evidence was

adduced.

6. After analysing the evidence on record, the Tribunal has

awarded a sum of Rs.2,64,000/- to the claimant. The compensation

awarded under various heads are extracted hereunder.

                                   Sl                Heads            Amount in
                                   No                                   Rs.
                                   1    Loss of earning power          1,80,000
                                   2    Disability                       70,000
                                   3    Pain and sufferings              10,000
                                   4    Transportation charges            2,000
                                   5    Extra nourishment                 1,000


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                                                                                  CMA No.759 of 2012


                                   Sl                Heads            Amount in
                                   No                                   Rs.
                                   6    Damages to clothes               1,000
                                             Total                    2,64,000

Not satisfied with the compensation awarded by the Tribunal, the

claimants have filed the present appeal to enhance the compensation.

7. Heard the learned counsel for the appellant and the

learned counsel for the insurance company and I have perused the

materials on record.

8. The learned counsel appearing for the appellant

submitted that due to the above said accident, the claimant had lost his

earning capacity and the Medical Board had certified that the claimant

is medically 'unfit' to continue his job and therefore, he was terminated

from the service as Grade-I Constable, however, the Tribunal has

awarded a very meagre amount towards " Loss of earning power".

Further he submitted that the claimant was admitted as inpatient on

18.01.1999 and was discharged only on 20.05.1999 and he has taken

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treatment for a period of four months and during the treatment, S.S.G

and V.Nailing were done. But, without considering the above facts, the

Tribunal has awarded only a sum of Rs.10,000/- towards " Pain and

sufferings". It is his contention that the Claimant had sustained fracture

of both bones of left leg with loss of muscle and skin and also crush

injury of left forearm with loss of skin. Therefore, the claimant has not

only taken treatment during the admitted period and in future also had

taken treatment, but the Tribunal has not awarded any amount towards

"Future medical expenses". Besides, the compensation awarded

towards " Transportation charges" , and " Extra Nourishment" is very

low and hence, the compensation awarded by the Tribunal has to be

enhanced.

9. The learned counsel appearing for the second

respondent/ insurance company submitted that after analysing the

evidence on record, the Tribunal has rightly assessed the loss of earning

power and disbility suffered by the claimant and has awarded a just and

reasonable compensation and hence, the same does not warrant any

interference by this court.

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10. Now the point for consideration is whether the

compensation awarded by the Tribunal has to be enhanced.

11. Point

According to the appellant, during the accident, he

sustained grievous injuries and fracture and during the treatment, S.S.G

and V.Nailing was done. Ex.P16 Disability Certificate, issued by

Dr.R.R.Thiagarajan was also produced, wherein the Doctor has

assessed the total disability suffered by the appellant/ claimant as 85%.

The above said Dr.R.R.Thiagarajan was examined as PW5 and he

deposed that the claimant sustained fracture of both bones of left leg,

below the knee in which rod was fixed and still it is inside and the

above said bones were malunited and due to the fibrous the petitioner

can fold his right knee only upto 80 degree and also there is no

movement in the left knee and for the same, he is walking only along

with stock and therefore, he assessed the disablement at 45%. He

further deposed that the fractured bones of left leg and the fingers of

left hand were bent and as such, he assessed the disablement at 40%.

During the examination, PW5 stated that x-ray was taken for assessing

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the disability. However, since the x-ray was not produced, the Tribunal

has assessed the disability suffered by the claimant as 55%. According

to the appellant/ the above said reason stated by the Tribunal is wrong.

12. Ex.P11 is the report given by the Chairman,

Government General Hospital, Chennai, wherein, it is stated that the

appellant/ claimant is medically unfit to continue his service. To

support the above said report, PW2 was examined and he deposed that

after examination, the Medical Board reported that the appellant is

"permanently incapable" to do his work. According to the appellant, he

was not able to continue his service in the Police Department till his

superannuation and therefore, he resigned his job.

13. The other contention of the appellant is that the

Tribunal has awarded a very meagre amounts towards " Pain and

sufferings", "Transportation Charges", " Extra Nourishment" and

"Damages to clothes" and the Tribunal has not awarded any amounts

towards " Future medical expenses".

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14. In reply to the above, the learned counsel appearing for

the respondent/ insurance company relied upon the evidence of PW1,

wherein, the appellant stated that he has voluntarily submitted his

resignation letter to the department and based on the resignation letter,

he was referred to the Medical Board. He also relied upon the evidence

of PW5, Dr.R.R.Thiagarajan, who has admitted in the cross

examination that he has taken x-ray, before assessing the disability and

he does not know whether the x-rays are produced or not before the

court by the claimant. Therefore, it is contended by him that the

Tribunal has rightly assessed the percentage of the disability suffered by

the claimant.

15. According to the appellant/ claimant, he had drawn a

monthly salary of Rs.6660/- per month and due to some minor

punishment imposed on him, he had drawn a sum of Rs.4,100/- as

monthly salary, however, while calculating Loss of earning power, the

Tribunal has wrongly fixed the monthly salary at Rs.1,000/-, which is

unsustainable.

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16. In so far as the assessment of disability suffered by the

claimant is concerned, the PW5, who had examined the claimant had

assessed 45% disablement for the fractured bones of left leg and

assessed 40% disablement for the bent of left hand fingers and totally

he had assessed disability suffered by the claimant at 85%. There is no

rebuttable evidence on the side of the respondents to disprove the above

said evidence and the Ex.P16 disability certificate. However, it is

unfortunate that the Tribunal on its own has assessed the disability

suffered by the claimant as 55%. The Tribunal is not an expert to assess

the disability of the claimant. If the assessment made by the Doctor is

improper, the respondent/ insurance company has to produce relevant

materials to disprove the same or to seek permission to send the

claimant to appear before the concerned Doctor or before the Medical

Board to assess the disability. In the absence of any such steps taken by

the insurance company, this court is unable to accept the assessment

made by the Tribunal.

17. The next argument advanced by the appellant/ claimant

is that, the claimant has suffered partial permanent disability during the

said accident. Dr.R.R.Thiagarajan has assessed the total disability

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suffered by the claimant as 85%. Subsequently, the appellant/ claimant

had submitted his resignation due to his inability to continue his work

in the department. Based on his resignation, he was referred to the

Medical Board by the Department and the report of the Medical Board

was marked as Ex.P11. To prove the above said report, PW2

Mr.Dasarathan was examined and he deposed that after examination of

the claimant, it was reported that the claimant was " Permanent

incapable" and he is medially unfit to do his service and the above said

report was forwarded to the Joint Commissioner of the Department.

Thereafter, accepting the report of the Medical Board, the claimant was

relieved from the service. Therefore, taking note of the afore said fact,

this court accepted the contention of the claimant and decided that the

claimant has suffered partial and permanent disability due to the above

said accident. Therefore, this court is of the view that as per the

disability certificate Ex.P16 and based on the evidence of PW5, the

claimant suffered 85% disability and inview of the same he is entitled

to get " Future prospects", as per the decision of the Honourable

Supreme Court in Raj Kumar Vs. Ajay Kumar and another reported

in 2011(1) SCC 343.

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18. It is admitted fact that at the time of accident, the

claimant was aged 42 years and was working as Grade-I Constable and

was earning a sum of Rs.4,100/- as monthly salary. However, the

Tribunal has fixed the loss of income per month as Rs.1,000 and

applied multiplier '15' and arrived at Rs.1,80,000/- towards " loss of

earning power". Though the Tribunal accepted that the claimant is

entitled for compensation towards " Loss of earning Power", has stated

reason for fixing a sum of Rs.1,000/- towards loss of income that the

petitioner can get any other white colour job for his better living. The

above said reason is without any basis. Therefore, considering all the

facts and circumstances of the case and at the time of accident, the

claimant has drawn a monthly salary of Rs.4,100/-, the loss of income is

fixed at Rs.4,100/-. the petitioner was aged 42 years, on the date of

accident and therefore, as per the decision of the Constitution Bench

of the Honourable Supreme Court of India in National Insurance

Company Limited Vs. Pranay Sethi and others reported in 2017 (2)

TNMAC 601, 25% should be added to the monthly income towards

" Future prospects". Accordingly loss of earning capacity is calculated

4100+1025=5125x12x14= 8,61,000) as Rs,8,61,000/-. In so far as the

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other heads are concerned, the Tribunal has not awarded any amounts

towards " Loss of amenities" and " Attenders charges". Accordingly a

sum of Rs.10,000/- each is awarded for the above said heads. Further

the Tribunal has awarded only a sum of Rs.10,000/- towards " pain and

sufferings', which is very meagre and the same is enhanced to

Rs.20,000/-.

19. The Tribunal has awarded a sum of Rs.70,000/- towards

" Permanent Disability", since the claimant suffered fracture of both

bone of left leg and crush injury on his left hand fingers. However, as

rightly pointed out the by the learned counsel appearing for the

respondent/ insurance company, the claimant is not entitled to the above

said compensation, since he is entitled for compensation towards " Loss

of earning power in future" . Accordingly, the revised compensation

awarded under the various heads is extracted hereunder.





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                                                                                          CMA No.759 of 2012


                                   Sl.             Heads          Compensation     Compensation
                                   No                             Awarded by the     enhanced/
                                                                    Tribunal       Awarded by this
                                                                                       court
                                   1     Loss of earning power    1,80,000         8,61,000

                                   2     Disability                70,000             -
                                   3     Pain and sufferings       10,000           20,000
                                   4     Transportation charges      2,000           2.000
                                   5     Extra nourishment          1,000            1,000
                                   6     Damages to clothes         1,000            1,000
                                   7     Loss of amenities           -               10,000
                                   8     Attender's charges          -               10,000
                                           Total                  2,64,000          9,05,000

This amount shall carry interest at the rate of 7.5% per annum from the

date of claim petition till the date of deposit.

20. In the result,

(i) The Civil Miscellaneous Appeal is partly allowed and

the award passed by the Tribunal is enhanced from Rs.2,64,000/- to

Rs.9,05,000/-. No costs.

(ii) The insurance company is directed to deposit the

revised compensation of Rs.9,05,000/- with interest at the rate of 7.5.%

p.a. from the date of claim petition till the date of deposit, less the

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amount if already deposited, within a period of six weeks from the date

of receipt of a copy of this order.