Madras High Court
Andi vs Shankar on 20 January, 2021
C.M.A.No.3381 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.01.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.3381 of 2019
Andi
S/o.Subbarayan ... Appellant
vs
1.Shankar
S/o.Ponnusamy
(first respondent was set ex parte
in the trial Court)
2.Reliance General Insurance Co. Ltd.,
No.6, Haddows Road,
6th Floor, Nungambakkam,
Chennai – 600006. ... Respondents
Prayer: Civil Miscellaneous Appeal filed u/s.173 of the Motor Vehicles Act,
1988, against the judgment and decree dated 27.11.2017 made in MACTOP
No.7570 of 2014 on the file of III Small Causes Court, Chennai.
1/11
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C.M.A.No.3381 of 2019
For Appellant : Mr.K.V.Muthu Visakan
For Respondents : Mr.M.B.Raghavan [R2]
*****
JUDGMENT
[Judgment of the Court was delivered by R.SUBBIAH, J]
This matter is heard through Video Conference.
2. Not being satisfied with the quantum of compensation awarded by the
Tribunal in any by judgment and decree dated 27.11.2017 made in MACTOP
No.7570 of 2014 on the file of Motor Accident Claims Tribunal, III Small Causes
Court, Chennai, the present appeal has been filed by appellant/claimant.
3. The brief facts of the case is as follows:
On 10.05.2014, at about 20.00 hours, while appellant/claimant was riding
his bi-cycle on the Poonamallee High Road, a Van bearing Registration No.TN-
20-BX-5654 came in a rash and negligent manner and dashed the
appellant/claimant owing to which the appellant/claimant sustained grievous
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C.M.A.No.3381 of 2019
injuries. First respondent is the owner of the Van and second respondent is its
insurer. It is the case of appellant/claimant that he was a mason by avocation and
was earning a sum of Rs.800/- per day. In the accident, the appellant/claimant
suffered crush injury on the right lower limb, fracture of both bones on the right
leg and fracture in shaft femur of the right leg and amputation of right leg below
the knee. As the appellant/claimant is unable to carry out his avocation as he was
doing before the accident, he claimed compensation in a sum of Rs.50,00,000/-.
4. Resisting the claim made by appellant/claimant, second respondent
insurance company had filed a detailed counter inter alia contending that the
accident had not occurred in the manner projected by appellant/claimant. They
have also denied the age, occupation and income of the appellant/claimant. Hence,
second respondent insurance company prayed for dismissal of the claim petition.
5. To prove his case, before the Tribunal, appellant/claimant examined
PWs.1 and 2 and marked 13 documents viz., Exs.P1 to P13. On the side of second
respondent insurance company, none were examined and no exhibit was marked.
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C.M.A.No.3381 of 2019
6. On appreciation of materials on record, the Tribunal found that the
accident had occurred owing to the rash and negligent driving of the Van
belonging to first respondent and held that the insurance company, being the
insurer of the offending vehicle, was liable to pay compensation. Based on Ex.P13
– Disability Certificate issued by PW-2, Doctor, the Tribunal has fixed the
permanent disability at 60% and considering the nature of injuries suffered by the
appellant/claimant applied multiplier while awarding compensation. The
compensation awarded by the Tribunal is as follows:
Sl. Compensation awarded under the Amount
No. head (in Rs.)
1. Functional Disability 11,23,200/-
2. Pain and Suffering 2,00,000/-
3. Loss of Income 1,44,000/-
4. Transport to Hospital 1,00,000/-
5. Extra Nourishment 70,000/-
6. Attender charges 64,800/-
7. Loss of Amenities 50,000/-
8. Medical expenses 15,000/-
9. Future Medical Expenses 10,000/-
10. Damages to clothes 1,000/-
Total 17,78,000/-
The said sum was directed to be paid together with interest at 7.5% p.a. (except for
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C.M.A.No.3381 of 2019
Rs.10,000/- awarded towards future medical expenses) from the date of petition
till the date of realization.
7. Learned counsel for appellant/claimant submits that the
appellant/claimant was working as a mason and was earning a sum of Rs.24,000/-
p.m. However, the Tribunal had fixed the monthly income of the
appellant/claimant as Rs.12,000/-. The sum of Rs.12,000/- fixed by the Tribunal is
on the lower side. Hence, by fixing at least a sum of Rs.15,000/- the amount
awarded by the Tribunal under the head 'functional disability' has to be enhanced.
Further, the learned counsel for appellant/claimant submits that the Tribunal while
calculating the amount under the head 'functional disability' has not added any
amount towards future prospects. Hence, by fixing a sum of Rs.15,000/- and
adding 25% towards future prospects, the compensation has to be awarded in
proportion to 60% disability. Learned counsel further submits that the amount
awarded under the other heads is also on the lower side and hence, the same also
has to be enhanced.
8. Per contra, learned counsel for second respondent insurance company
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C.M.A.No.3381 of 2019
submits that absolutely no documentary proof was produced before the Tribunal to
prove that the appellant/claimant was earning a sum of Rs.24,000/- p.m. as stated
in the claim petition. In the absence of any proof, the monthly income fixed by the
Tribunal at Rs.12,000/- cannot be found fault with. Hence, there is no need to
enhance the compensation amount awarded under the head 'functional disability'
by fixing a sum of Rs.15,000/- as monthly income as submitted by learned counsel
for appellant/claimant. Similarly, the amount awarded by the Tribunal under the
other heads are also reasonable. Submitting as above, learned counsel prays for
dismissal of the appeal.
9. This Court has considered the rival submissions. Perused the materials on
record.
10. As rightly submitted by learned counsel for second respondent insurance
company, absolutely no proof was produced before the Tribunal to establish the
income of the appellant/claimant. In such circumstance, this Court finds that the
monthly income fixed by the Tribunal at Rs.12,000/- is justifiable. Further, the
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C.M.A.No.3381 of 2019
Tribunal had rightly applied multiplier taking into account the percentage of
permanent disability suffered by appellant/claimant while awarding compensation
under the head 'functional disability'. However, the Tribunal had not awarded any
amount towards future prospects. Given the nature of injuries suffered by
appellant/claimant, this Court considers that it would be appropriate to award 25%
towards future prospects. Accordingly, the amount awarded under the head
'functional disability' is re-calculated as follows:
Monthly Income : Rs. 12,000/-
Add : future prospects
25% of Rs.12,000/- : Rs. 3,000/-
-----------------
Rs. 15,000/-
Annual Income (15000*12) : Rs.1,80,000/-
60% permanent disability : Rs.1,08,000/-
(60% of Rs.1,80,000/-)
Multiplier : 13
Functional disability : Rs.14,04,000/-
11. In the accident, besides other injuries, the right leg of appellant/claimant
was amputated below knee. In such circumstance, this Court considers that it
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C.M.A.No.3381 of 2019
would be appropriate to award a sum of Rs.2,00,000/- towards fixing of artificial
leg. Further, taking note of the fact that as a result of the accident,
appellant/claimant cannot carry on his avocation as he was doing before the
accident, this Court is of the view that the amount awarded by the Tribunal under
the head 'loss of amenities' at Rs.50,000/- is on the lower side and hence, the same
is enhanced to Rs.90,000/-. In all other aspects, the award of the Tribunal is
hereby confirmed.
12. Accordingly, the modified compensation payable would be:
Sl. Compensation awarded Amount awarded Amount awarded
No. under the head by Tribunal by this Court
(in Rs.) (in Rs.)
1. Functional Disability 11,23,200/- 14,04,000/-
2. Pain and Suffering 2,00,000/- 2,00,000/-
3. Fixing of artificial leg - 2,00,000/-
4. Loss of Income 1,44,000/- 1,44,000/-
5. Transport to Hospital 1,00,000/- 1,00,000/-
6. Loss of Amenities 50,000/- 90,000/-
7. Extra Nourishment 70,000/- 70,000/-
8. Attender charges 64,800/- 64,800/-
9. Medical expenses 15,000/- 15,000/-
10. Future Medical Expenses 10,000/- 10,000/-
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C.M.A.No.3381 of 2019
Sl. Compensation awarded Amount awarded Amount awarded
No. under the head by Tribunal by this Court
(in Rs.) (in Rs.)
11. Damages to clothes 1,000/- 1,000/-
Total 17,78,000/- 22,98,800/-
Rounded off to 23,00,000/-
In the result, the Civil Miscellaneous Appeal is partly allowed. The
compensation of Rs.17,78,000/- awarded by the Tribunal is hereby enhanced to
Rs.23,00,000/-. The second respondent insurance company is directed to deposit
the enhanced compensation of Rs.23,00,000/- (Rupees Twenty Three Lakhs only),
less the amount already deposited, together with interest at 7.5% p.a. from the date
of petition till the date of deposit within a period of four weeks from the date of
receipt of this judgment. On such deposit being made by second respondent
insurance company, appellant/claimant is permitted to withdraw the amount, along
with accrued interest and costs, less the amount, if any already withdrawn by him,
by filing necessary application before the Tribunal. No costs.
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C.M.A.No.3381 of 2019
[R.P.S., J] [S.S.K., J]
20.01.2021
Speaking / Non-speaking order
Index: Yes/No
Internet: Yes
gm
To
The Motor Accident Claims Tribunal,
III Small Causes Court,
Chennai.
R.SUBBIAH, J
and
SATHI KUMAR SUKUMARA KURUP, J
gm
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C.M.A.No.3381 of 2019
C.M.A.No.3381 of 2019
20.01.2021
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