Madras High Court
M.Raja @ Rajaram vs Mrs.C.Malathi on 18 January, 2021
1 CMA No.51 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.01.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.51 of 2017
M.Raja @ Rajaram ...Appellant
Vs
1.Mrs.C.Malathi
2.M/s.ICICI Lombard Genl. Ins. CO. Ltd.,
C/o. Motor Third Party Claims Office,
Arihant Plaza, 1st Floor,
No.84 & 85, Walltax Road,
Chennai 600 003. ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 08.06.2016 made
in M.C.O.P.No.5114 of 2011 on the file of the Motor Accidents Claims
Tribunal, VI Court of Small Causes, Chennai.
For Appellant : Mr.T.G.Balachandran
For Respondents : Mr.K.Poomalai
https://www.mhc.tn.gov.in/judis/
2 CMA No.51 of 2017
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel
for the respondents.
2.The appeal is filed by the accident victim for enhancement of
compensation.
3. According to the claim petition, on 04.10.2011, at about 07.15
hours, when the appellant was proceeding in his motor cycle bearing
Registration No.TN07-BK-4042 on Royapettah High Road towards
Mandaveli, a car bearing Registration No.TN-06-B-1671 proceeding from
Kutcherry Road towards Mandaveli, rash and negligently dashed against the
motor cycle near Luz junction. As a result, the claimant sustained injury
over his body. He was admitted in the hospital. He was treated as inpatient
from 04.10.2011 to 07.11.2011. His left big toe was amputated. The skin
grafting was done and cross leg flap is causing loss of earning capacity.
Therefore, he has filed the claim petition against the owner of the car and
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the insurer seeking compensation of Rs.3,81,000/- restricting to
Rs.3,00,000/-.
4.The Insurance Company has filed a counter stating that the claimant
has contributed to the occurrence of the accident. He was not road
conscious while driving the motor cycle. Therefore, he alone is liable for
the accident and not entitled for any compensation. Regarding the income
and employment as claimed in the petition, the respondent/Insurance
Company has denied the same and contended that the claimant has to prove
his avocation and income.
5. Before the Tribunal, the claimant was examined as P.W.1. Doctor,
who gave the Disability Certificate was examined as P.W.2. Six exhibits
were marked. On behalf of the respondents, no witnesses were examined
and no documents marked.
6. The Tribunal, after considering the evidence, has awarded a sum of
Rs.1,00,000/- as compensation. Not satisfied with the quantum of
compensation, the present appeal is filed.
https://www.mhc.tn.gov.in/judis/
7. Learned counsel for the appellant would submit that the amputation
of big toe is total permanent disability and as per the schedule of Workmen
Compensation Act, the disability is 14% whereas in this case, the claimant
has not only lost his big toe, but due to skin grafting, cross skin flap, he is
unable to walk and climb the ladder. Being a Painter by profession, the
injury has substantially hampered the earning capacity of the claimant and
therefore, the Tribunal ought to have applied the dictum laid by the
judgment of the Supreme Court in Rajkumar vs. Ajay Kumar, 2011 ACJ 1
and should have applied multiplier. Further, the learned counsel would also
submit that the Tribunal ought to have considered awarding higher
compensation under other heads including loss of income during the
treatment period.
8. Learned counsel for the respondents would submit that the injury
sustained by the claimant caused the total disability, the amputation of big
toe has been assessed at 10% and Rs.3,000/- per percentage of disability has
been awarded by the Tribunal. Besides, the Tribunal has awarded
adequately for pain and suffering, loss of income and loss of amenity. For
https://www.mhc.tn.gov.in/judis/
the total disability, if multiplier is applied, the schedule under the Workmen
Compensation Act may be taken into account. Learned counsel would
submit that the award of the Tribunal is otherwise fair and need no
interference.
9.It is now well settled by the Supreme Court that in case of total
disability, the loss of income has to be assessed by applying multiplier and
the percentage of functional disability should be correlated with the
employment/avocation and the nature of injury. In this case, the claimant
has lost his left big toe. The photograph shown by the learned counsel
reveals that a big cross leg flap near the amputated side is seen. This will
naturally cause functional disability for a Painter. Therefore, this Court is
of the view that it is appropriate to apply multiplier.
10.The accident occurred on 04.10.2011. Since there is no other
evidence except self serving evidence of the claimant, the notional income
of the claimant is fixed at Rs.6,500/-. The loss of earning capacity is thus
computed as 15/100X6,500X12X16= Rs.1,87,200/-. Accordingly, the award
of the Tribunal is enhanced as below:
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Compensation under Various Award passed by this
Heads Court
Loss of Earning Capacity due to Rs.1,87,200/-
15% total disability
(15/100X6500X12X16)
Loss of earning during the Rs. 26,000/
treatment period (6500X4)
Pain and Suffering Rs. 20,000/-
Transport and extra nourishment Rs. 10,000/-
Attender Charges Rs. 4,000/-
Loss of amenities Rs. 10,000/-
Total Rs.2,57,200/-
10. Accordingly, the award is enhanced from Rs.1,00,000/- to
Rs.2,57,200/- payable with interest at the rate of 7.5% p.a. from the date of
petition till the date of realisation. The money shall be deposited by the
Insurance Company within a period of eight weeks from the date of receipt
of a copy of this judgment. On such deposit, the claimant shall withdraw
the same on appropriate application.
https://www.mhc.tn.gov.in/judis/
11. Accordingly, the Civil Miscellaneous Appeal is partly allowed.
No order as to costs.
18.01.2021
vri
To
Motor Accidents Claims Tribunal
VI Court of Small Causes,
Chennai.
https://www.mhc.tn.gov.in/judis/
Dr.G.JAYACHANDRAN,J.
VRI
CMA NO.51 OF 2017
18.01.2021
https://www.mhc.tn.gov.in/judis/
