Madras High Court
Palaniappan vs C.Subramani on 19 January, 2021
C.M.A.No.1591 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19.01.2021
Coram
The Honourable Mr.Justice D.KRISHNA KUMAR
C.M.A.No.1591 of 2003
Palaniappan ... Claimant/ Appellant
..Vs..
1.C.Subramani
2.M/s. National Insurance Co., Ltd.,
Branch Office-I,
Thenthai Periyar Complex,
Salem-1. ... Respondents/Respondents
Prayer : This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the award and decree passed by the learned
Additional District and Sessions Judge (FTC-1), (MACT), Salem in
M.C.O.P.No.285 of 1998 dated 28.06.2002.
For Appellant : Mr.K.Kuppusamy
For Respondent-2 : Mrs.Sree Vidhya
******
JUDGMENT
Aggrieved by the award passed by the Additional District &
Sessions Judge (FTC-1) (M.A.C.T.), Salem in M.C.O.P. No.285/1998 dated
28.06.2002, the claimant has preferred the present appeal.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
2. The brief facts of the case are as follows:
On 04.01.1998 at about 7.00 a.m., when the claimant was
proceeding near Ramakrishna Park, Hasthampatty police limit, Salem in his
TVS 50 Moped bearing Registration No. TN-27-B-7084, the first respondent's
motor cycle bearing registration No.TN-27-B-2122 which was driven in a rash
and negligent manner, hit the claimant and thereby caused grievous injuries
to the claimant. He was admitted in hospital and taken treatment. Hence,
the claimant has filed a claim petition, claiming a sum of Rs.5,00,000/- as
compensation from the respondents towards permanent disability sustained
by the claimant.
3. Before the Tribunal, P.W.1 to P.W.3 were examined and
Exs.P1 to P6 were marked on the side of the claimant. R.W.1 to R.W.3
were examined and Exs.R1 to R7 were marked on the side of the
respondents. The Tribunal after analysing the oral and documentary
evidence came to the conclusion that the accident occurred only due to the
rash and negligent driving of the driver of the respondent vehicle and
awarded a sum of Rs.2,64,142/- as compensation along with interest at the
rate of 9% p.a. from the date of petition till the date of payment. The
award passed by the tribunal under various heads are as follows:
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
Heads Compensation
Awarded by the
tribunal (Rs.)
Permanent disability 90% 90,000/-
Medical bills 1,61,142/-
Pain and sufferings 10,000/-
Total 2,61,142/-
4. Challenging the award passed by the Tribunal, the claimant
has come forward with the present appeal for enhancement of
compensation.
5. The learned counsel appearing for the claimant/appellant
submitted that the compensation awarded by the Tribunal is very meagre as
the claimant suffered 90% permanent disability and moreover, the claimant
has lost his life and he cannot do any work without any assistance and
further, he is unable to perform his day-to-day activities. The learned
counsel further submitted that the claimant should be awarded a just and
reasonable compensation as the negligence on the part of the driver of the
respondent's vehicle is confirmed by the Tribunal. Therefore, considering all
these aspects, the appellant seeks enhancement of compensation awarded
by the tribunal.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
6. On the other hand, the learned counsel appearing for the
respondent/Insurance Company submitted that the Tribunal has awarded a
just and reasonable compensation to the claimant. She further submitted
that they are disputing the factum of percentage of disablement arrived at
by the Tribunal and also the multiplier method adopted by the Tribunal and
contended that no further enhancement is required.
7. Heard the rival submissions made by the learned counsel for
the parties and also perused the materials available on record.
8. It is admitted by the learned counsel appearing for the
respondent/Insurance Company that the appeal preferred by the Insurance
Company was dismissed by this Court.
9. On Perusal of the records reveals that the appellant have
produced the wound certificate/Ex.P2 for the injuries sustained by him and
the doctor was examined as P.W.2 before the tribunal. P.W.2 deposed that
the claimant had suffered 90% permanent disablement due to the accident.
P.W.2 further deposed that the claimant/appellant sustained fracture in
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
spinal card, hip bone and grievous injuries all over the body. According to
P.W.2, the claimant/appellant sustained disability in spinal card due to
which he unable to urinate and also problem in bowel motion. It is further
submitted that the appellant sustained grievous injuries in brain and due to
the grievous injuries at cervical spine, both hands and both legs are non
functional. Therefore, he unable to do any work without any assistance and
further, he is unable to perform his day-to-day activities on his own.
Considering all these aspects, Doctor assessed the claimant/ appellant
sustained 90 % disability and issued disability certificate Ex.P6. When there
is no contra evidence placed by the respondent/Insurance Company to
disprove 90% permanent disability sustained by the appellant, the Court has
to accept the same. Accordingly, this Court accept the assessment made by
P.W.2/Doctor that the appellant sustained 90% permanent disability.
10. In sofar as the quantum of compensation awarded by the
tribunal, the appellant filed a claim petition seeking Rs.5,00,000/- as
compensation including medical expenses. The claimant/ appellant was
aged about 52 years at the time of accident, was working as Machanic and
earned Rs.4649/- per month. The tribunal by adopting multiplier method,
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
awarded Rs.90,000/- towards disability, which is not proportionate to the
disabilities sustained by the claimant/appellant and awarded Rs.2,61,142/-
as total compensation. In sofar as permanent disability, the illustration
made by the Hon'ble Supreme Court in RAJ KUMAR VS. AJAY KUMAR AND
ANOTHER [(2011) 1 SCC 343] to decide loss of earning capacity due to
permanent disability and the same may be treated as 100% loss caused to
the claimant. The relevant paragraphs of the decision is as follows:-
“13. We may now summarize 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 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
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
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.”
11. Considering the evidence of P.W.2 and the decision of the
Hon'ble Supreme Court in RAJ KUMAR case (supra), the disabilities
sustained by the appellant is almost total in sofar as the earning capacity.
12. In yet another decision in the case of K. JANARDHAN V.
UNITED INDIA INSURANCE CO. LTD., [(2008) 8 SCC 518] the Hon'ble
Supreme Court held as under:
''5. The learned counsel for the appellant has
raised only one argument during the course of the
hearing. He has submitted that the appellant claimant
being a tanker driver, the loss of his right leg ipso
facto meant a total disablement as understood in
terms of Section 2(1)(l) of the Workmen's
Compensation Act and as such the appellant was
entitled to have his compensation computed on that
basis. In support of this plea, the learned counsel has
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
placed reliance on Pratap Narain Singh Deo v.
Srinivas Sabata [(1976) 1 SCC 289 : 1976 SCC (L&S)
52] . The cited case pertained to a carpenter who had
suffered an amputation of his left arm from the elbow
and this Court held that this amounted to a total
disability as the injury was of such a nature that the
claimant had been disabled from all work which he
was capable of performing at the time of the accident.
It was observed as under: (SCC p. 291, para 5)
“5. The expression “total disablement” has been
defined in Section 2(1)(l) of the Act as follows:
''2. (1)(l) “total disablement” means such
disablement, whether of a temporary or permanent
nature, as incapacitates a workman for all work
which he was capable of performing at the time of the
accident resulting in such disablement''
It has not been disputed before us that the injury was
of such a nature as to cause permanent disablement
to the respondent, and the question for consideration
is whether the disablement incapacitated the
respondent for all work which he was capable of
performing at the time of the accident. The
Commissioner has examined the question and
recorded his finding as follows:
‘''The injured workman in this case is carpenter
by profession…. By loss of the left hand above the
elbow, he has evidently been rendered unfit for the
work of carpenter as the work of carpentry cannot be
done by one hand only.''
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
This is obviously a reasonable and correct finding.
Counsel for the appellant has not been able to assail
it on any ground and it does not require to be
corrected in this appeal. There is also no justification
for the other argument which has been advanced with
reference to Item 3 of Part II of Schedule 1, because it
was not the appellant's case before the Commissioner
that amputation of the arm was from 8" from tip of
acromion to less than 4½" below the tip of olecranon.
A new case cannot therefore be allowed to be set up
on facts which have not been admitted or
established.”
6.Applying the ratio of the cited judgment to
the facts of the present case we are of the opinion
that the appellant herein has also suffered a 100%
disability and incapacity in earning his keep as a
tanker driver as his right leg had been amputated
from the knee. Additionally, a perusal of Sections 8
and 9 of the Motor Vehicles Act, 1988 would show
that the appellant would now be disqualified from
even getting a driving licence.''
13. Reverting to the facts of the case on hand, the appellant
who was a Mechanic suffered 90% permanent disability; both upper and
lower limbs are non functional. Therefore, the appellant was incapacitated
to work as Mechanic. In the light of decisions of the Hon'ble Supreme Court
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
cited supra, NATIONAL INSURANCE CO. LTD. VS. PRANAY SETHI [(2017)
16 SCC 680] and PAPPU DEO YADAV VS. NARESH KUMAR & OTHERS [CDJ
2020 SC 727], it is appropriate for this Court to adopt multiplier method
for fixing compensation towards loss of income. Considering the age of the
appellant, i.e. 52 years, as per the II Schedule to the amended Motor
Vehicles Act, 1988 and as per the dictum laid down by the Hon'ble Supreme
Court in Sarala Varma case, 11 multiplier should be adopted. Accordingly,
the compensation towards loss of income due to permanent disability is
Rs.4649/- x 12 x 11 = Rs.6,13,800/-. Accordingly, the award passed by the
tribunal towards loss of income is modified to the aforesaid extent. In sofar
as other conventional heads are concerned, it requires enhancement of
compensation.
14. In view of the aforesaid discussion, the award passed by
the tribunal is modified as under:
Heads Compensation Compensation
awarded by the enhanced/
tribunal Awarded by this
Rs. Court Rs.
Loss of income due to 90,000/- 6,13,800/-
permanent disability
Pain & Sufferings 10,000/- 50,000/-
Medical bills 1,61,142/- 1,61,142/-
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
Heads Compensation Compensation
awarded by the enhanced/
tribunal Awarded by this
Rs. Court Rs.
Transportation -- 10,000/-
Extra Nourishment -- 25,000/-
Attendant charges 30,000/-
Total : 2,61,142/- 8,89,942/-
rounded of to
9,00,000/-
15. Accordingly, the appellant / claimant is entitled to a sum
of Rs.9,00,000/-(Rupees nine lakhs only) as compensation along with
interest at the rate of 7.5%. Since the appellant restricted his claim to Rs.5
lakhs only as compensation, it is relevant for this Court to rely upon the
various decisions of the Hon'ble Supreme Court as well as this Court for
enhancement of compensation.
16. The Hon'ble Supreme Court by considering the scope of
Section 41 Rule 33 of the Civil Procedure Code has held that the Court has
ample powers to enhance the compensation amount without preferring
cross objection in the following cases:
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
a) NAGAPPA VS. GURDAYAL SINGH & OTHERS (2003 ACJ 12]
b) KAVITA VS. DEEPAK AND OTHERS [2012 (2) TN MAC 362 (SC)]
c) RESHMA KUMARI & OTHERS VS. MADAN MOHAN AND ANOTHER
[2013 (9) SCC 65]
D) TAMIL NADU STATE TRANSPORT CORPORATION LTD. , REP. BY ITS
MANAGING DIRECTOR, ERODE VS. KARUPATHAL AND 4 OTHERS
[CMA.1845 OF 2017]
E) RAMLA AND OTHERS VS. NATIONAL INSURANCE COMPANY LTD.,&
OTHERS [2019 (2) SCC 192]
17. Likewise, in the case of GOVIND YADAV V. THE NEW INDIA
INSURANCE CO. LTD., reported in 2012 ACJ 28 SC, the dictum of law laid
down by the Hon'ble Apex Court held that compensation can be granted
under non pecuniary heads for permanent disability. The same principle has
been followed by the Hon'ble Supreme Court in KAVITA VS. DEEPAK AND
OTHERS reported in 2012 (2) TN MAC 362 (SC), The relevant paragraphs of
the said decision are extracted below:
“18. In light of the principles laid down in the
aforementioned cases, it is suffice to say that in
determining the quantum of compensation payable
to the victims of accident, who are disabled either
permanently or temporarily, efforts should always
be made to award adequate compensation not only
for the physical injury and treatment, but also for
the loss of earning and inability to lead a normal life
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
and enjoy amenities, which would have been
enjoyed but for the disability caused due to the
accident. The amount awarded under the head of
loss of earning capacity are distinct and does not
overlap with the amount awarded for pain,
suffering and loss of enjoyment of life or the
amount awarded for medical expenses. "
Rule 33 of Code of Civil Procedure and also
in view of the rulings of the Supreme Court in
Dhangir v . Madan Mohan , AIR 1988 SC 54 to
grant the proper relief . Of course , the Apex Court
has pointed out in clear and categorical terms and
the power conferred under Order 41 , Rule 33 on
the Appellate Court is discre - tionary , and then it
must be used in proper case using the judicial
discretion to render justice . The Apex Court in
United India Insurance Co. , Ltd. , v .
Narendra Pandu - rang Kadam and others ,
1995 ( 1 ) SCC 320 has clearly laid down that the
rate of interest must be awarded from the date of
the petition and not from the date of the Judgment."
11 .Gurudayal excerpt Over and above that
decision of the Hon'ble Three Judges Bench of the
Hon'ble Apex Court, in Nagappa v. Singh and
others, 2003 AC) 12: 2004 (2) TN MAC 398 (SC),
could be cited here. An from it would run thus:
"Firstly, under the provisions of Motor Vehicles Act,
1988 (hereinafter referred to as the MV Act), there is
no restriction that compensation could be awarded
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
only up to the amount claimed by the claimant. In
an appropriate case where from the evidence
brought on record if Tribunal / Court considers that
claimant is entitled to get more compensation than
claimed, the Tribunal may pass such award. Only
embargo is - it should be 'just' compensation, that is
to say, it nor should neither be arbitrary, fanciful
unjustifiable from the evidence.
18. Though this Court in exercise of powers
conferred under Order 41 Rule 33 of the Civil
Procedure Code has suo motu enhanced the
compensation and time and again this Court has
observed that even for meager amount and in
particular, in the case on hand, a sum of Rs.3,750
/ per month, being taken consideration for the
purpose of computing the loss of contribution to the
family, appeal has been filed and that Transport
Corporations are spending huge amount for Court
fee and also delaying disbursement of
compensation awarded by the Tribunal. "
18. In a decision of the Hon'ble Supreme Court in the case of
Ramla and others Vs. National Insurance Company Ltd. , & others
reported in 2019 (2) SCC 192, wherein it has held that the Courts are duty -
bound to award just compensation. The relevant portion of the decision
reads as follows:
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
"Though the claimants had claimed a total
compensation of Rs.25,00,000 / - in their claim
petition filed before the Tribunal, we feel that the
compensation which the claimants are entitled to
is higher than the same as mentioned supra.
There is no restriction that the Court cannot
award compensation exceeding the claimed)
amount, since the function of the Tribunal or
Court under Section 168 of the Motor Vehicles
Act, 1988 is to award "just compensation". The
Motor Vehicles Act is a beneficial and welfare
legislation. A "just compensation" is one which is
reasonable on the basis of evidence produced on
record. It cannot be said to have become time
barred. Further, there is no need for a new cause
of action to claim an enhanced amount. The
courts are duty - bound to award just
compensation. (a) Nagappa Vs. Gurudayal Singh
-2003 (2) SCC 274; b) Magma General Insurance
Co. Ltd. , V. Nanu Ram - 2018 (18) SCC 130 and
c) Ibrahim V. Raju - 2011 (10) SCC 634). "
19. Accordingly, the compensation awarded by the tribunal is
enhanced from Rs.2,61,142/- to Rs.9,00,000/-. The respondent/Insurance
Company is directed to deposit the enhanced award amount along with
interest at the rate of 7.5% p.a. to the credit of M.C.O.P.No.285 of 1998 on
the file of the Additional District and Sessions Judge (FTC-1), (MACT), Salem
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
within a period of eight weeks from the date of receipt of copy of the
judgment, less the amount if any already deposited before the tribunal. On
such deposit being made by the respondent/ Insurance Company, the
claimant/appellant is permitted to withdraw the amount by filing
appropriate application. The Claimant is directed to pay the additional
court fees if any, for the enhanced compensation amount.
20. In fine, the Civil Miscellaneous Appeal is allowed to the
aforesaid extent. No costs.
19.1.2021
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
dp
To
1. The Additional District and Sessions Judge, F.T.C.-1/M.A.C.T., Salem.
2. National Insurance Co., Ltd., Branch Office-I, Thenthai Periyar Complex,
Salem-1.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1591 of 2003
D.KRISHNA KUMAR.J,
DP
C.M.A.No.1591 of 2003
19.01.2021
https://www.mhc.tn.gov.in/judis/
