Madras High Court
Kumar vs Harish on 7 July, 2021
C.M.A.No.2039 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.07.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.2039 of 2015
Kumar ... Appellant
Vs
1.Harish
2.New India Assurance Company Limited,
No.92, East Coast Chambers,
1st Floor, G.N.Chetty Road,
T.Nagar, Chennai – 600 017. ... Respondents
(R1 is set exparte before the
Tribunal and hence, R1 is
given up in this appeal)
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act against the decree and judgment dated 11.10.2012 made in
MCOP.No.16 of 2012 on the file of the MACT / Additional District Court
at Namakkal.
For Appellant : Mr.M.Lokesh
for Mr.Ma.P.Thangavel
For Respondent 2 : Ms.S.R.Sumathy
1/14
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C.M.A.No.2039 of 2015
JUDGMENT
(This case is heard through Video Conferencing)
This Appeal has been filed by the claimant seeking enhancement of
compensation under the impugned award dated 11.10.2012 passed by the
Motor Accident Claims Tribunal (Additional District Court, Namakkal) in
MCOP.No.16 of 2012.
2. The Appellant/claimant unsatisfied with the quantum of
compensation awarded by the Tribunal has preferred this appeal seeking
enhancement of compensation. The details of the compensation awarded by
the Tribunal to the Appellant/claimant are as follows:
Heads Award Amount
(Rs.)
Loss of earning capacity 1,45,000/-
Injury 6,000/-
For disability 65,000/-
Pain and suffering 38,000/-
Medical Bills 2,37,300/-
Transportation 7,000/-
Extra nourishment 37,200/-
Loss of income 40,000/-
Total 5,75,500/-
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3. Heard Mr.M.Lokesh, learned counsel representing
Mr.Ma.P.Thangavel, learned counsel for the Appellant/claimant and
Ms.S.R.Sumathy, learned counsel appearing for the second respondent
Insurance company. The first respondent has remained exparte both before
the Tribunal as well as this Court.
4. The case of the Appellant is that the Tribunal ought to have
considered the fact that at the time of the accident, he was only 19 years old
and due to the injuries sustained by him, he underwent various surgeries and
plates and screws were also fixed on his left hand which made his left hand
fully paralysed and there is also no sensation in his left hand. According to
the Appellant, the Tribunal has erroneously not adopted the multiplier
method for assessing the loss of earning capacity instead has awarded the
compensation towards loss of earning capacity on lump sum basis, despite
the fact that the Doctor who examined him has assessed his permanent
disability at 70% which has affected his earlier avocation and future earning
capacity. It is also the contention of the Appellant that the compensation
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C.M.A.No.2039 of 2015
awarded by the Tribunal under various other heads is also low and it has to
be enhanced.
5. Learned counsel for the Appellant drew the attention of this Court
to the various authorities namely (a) Karthik Subramanian vs. Sarath
Babu & Another reported in CDJ 2021 SC 196 wherein the Hon'ble
Supreme Court following the decisions in Erudhaya Priya vs. State
Express Transport Corporation Ltd. reported in 2020 SCC Online SC 601
and Sandeep Khanduja vs. Atul Dande reported in (2017) 3 SCC 351 held
that injured victims are also entitled for loss of future prospects in certain
cases; and (b) Nattun Rani & another vs. Gurmail Singh & others
reported in (2018) 17 SCC 109 wherein for an accident that happened on
31.03.1994 applying the decisions of the Hon'ble Supreme Court in the case
of National Insurance Company Limited vs. Pranay Sethi & Others
reported in (2017) 16 SCC 680, the Hon'ble Supreme Court awarded loss of
future prospects. Relying upon the aforesaid authorities, the learned counsel
for the Appellant would submit that the Appellant/claimant who was a
loadman, aged 19 years, having sustained grievous injuries and having had
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C.M.A.No.2039 of 2015
to undergo various surgeries and plates and screws were also fixed which
made his left hand fully paralysed and having lost his sensation in his left
hand, the Tribunal ought to have awarded loss of future prospects to him in
accordance with the aforementioned authorities. He would submit that this
appeal is a continuation of the MCOP proceedings and would also submit
that the Hon'ble Supreme Court has awarded loss of future prospects in
Nattun Rani's case referred to supra for an accident that happened on
31.03.1994 by applying the ratio laid down by the Hon'ble Supreme Court
in Pranay Sethi's case.
6. The learned counsel for the Appellant would further submit that the
Doctor has assessed the disability of the Appellant/claimant at 70% which
has been marked as an exhibit before the Tribunal and therefore, 70%
disability has to be taken into consideration for the purpose of assessing the
loss of earning capacity by adopting the multiplier method.
7. Per contra, learned counsel for the second respondent Insurance
Company would submit that only based on the materials and evidence
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C.M.A.No.2039 of 2015
available on record, the Tribunal has assessed the compensation payable to
the Appellant/claimant. He would submit that the Appellant/claimant is not
entitled for getting compensation for loss of earning capacity by adopting
the multiplier method. Excepting for hand injuries, that too, in only one of
the hands, the Appellant/claimant has not suffered any other grievous
injuries and hence, according to her, the Tribunal has rightly assessed the
compensation based on the percentage of disability sustained by the
Appellant/claimant. He would also submit that the decisions relied upon by
the learned counsel for the Appellant/claimant have no applicability to the
facts of the instant case as according to her, each and every case will have to
be adjudicated based on the nature of injuries and the avocation. According
to her, the nature of injuries sustained by the Appellant/claimant does not
enable him to get compensation by adopting the multiplier method.
Discussion:
8. Before the Tribunal, the Appellant/claimant has filed 13 documents
which were marked as Ex.A1 to Ex.A13 and three witnesses were examined
viz., the Appellant/claimant himself as PW1, the Doctor who examined him
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C.M.A.No.2039 of 2015
as PW2 and Harish, the employer of the Appellant/claimant as PW3. On the
side of the second respondent Insurance Company, two documents were
filed which were marked as Ex.B1 & Ex.B2 and two witnesses were
examined namely Jayaraj, the RTO official as RW1 and Vijayan, the
Insurance Company Official as RW2.
9. Admittedly, the Appellant/claimant has sustained grievous injuries
in his left hand and he was hospitalised from 13.10.2011 to 16.11.2011 for a
period of 34 days as seen from the discharge summary which was marked as
Ex.A6 before the Tribunal. Because of the injuries, the Appellant/claimant
has no sensation on his left hand. The Appellant/claimant has also
underwent surgeries and plates and screws have also been fixed in his left
hand and his left hand is fully paralysed. The nature of injuries sustained by
the Appellant/claimant has not been disputed by the respondents before the
Tribunal. The long period of hospitalisation has also not been disputed by
the second respondent Insurance Company. The Doctor Orthopaedician has
assessed the disability of the Appellant/claimant as seen from the disability
certificate Ex.P11 dated 04.09.2012 at 70%. However, the Tribunal for the
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C.M.A.No.2039 of 2015
purpose of assessing the loss of earning capacity has fixed the disability at
65%. The disability fixed by the Tribunal at 65% is not a whole body
disability and the disability is only in respect of left hand of the
Appellant/claimant. This Court, after giving due consideration to the nature
of injuries sustained by the Appellant/claimant, is of the considered view
that the whole body disability can be fixed at 40%. Accordingly, the whole
body disability of the Appellant/claimant is fixed at 40% by this Court.
10. The Appellant/claimant was a loadman, aged 19 years and his left
hand has become totally paralysed as a result of the accident. Being a
loadman, he needs to lift heavy items. Without his left hand, he will be
handicapped in carrying heavy items and hence, his avocation as a loadman
has become totally paralysed. It is certain that he will not be in a position to
carry on with his avocation as a loadman now, after the grievous injuries
sustained on his left hand. The decisions relied upon by the learned counsel
for the Appellant/claimant namely (a) Karthik Subramanian vs. Sarath
Babu & Another referred to supra (b) Nattun Rani & another vs. Gurmail
Singh & others referred to supra are squarely applicable to the facts of the
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C.M.A.No.2039 of 2015
instant case also. In those cases also, the Hon'ble Supreme Court based on
the nature of injuries sustained by the accident victim held that the accident
victim who sustained injuries is entitled for loss of future prospects and in
the case of Nattan Rani referred to supra, the accident happened on
31.03.1994 and despite the same, the Hon'ble Supreme Court applied the
ratio laid down in the decision in Pranay Sethi's case referred to supra which
is a later in point of time, after the date of the accident. This appeal is a
continuation of MCOP proceedings. When there is no statutory bar or any
legal precedents to show that the claimant is not entitled to apply to his or
her advantage an authority which has been given in later point of time after
the date of the accident, there is no bar for this Court to award loss of future
prospects to the Appellant/claimant who has sustained grievous injuries on
12.10.2011, even before the decision of the Hon'ble Supreme Court was
rendered in Karthik Subramanian case, Erudhaya priya's case, Pranay
Sethi's case and Sandeep Khanduja's case referred to supra. For the
foregoing reasons, this Court fixes the future prospects of the
Appellant/claimant at 40% as per the ratio laid down in Pranay Sethi's case.
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11. The Tribunal has fixed the notional monthly income of the
deceased at Rs.5,000/- which in the considered view of this Court is a
correct assessment in view of the fact that the Appellant/claimant was only
19 years old and was a loadman at the time of the accident. Since the
Appellant/claimant was aged 19 years at the time of the accident, the correct
multiplier is 18 for the purpose of assessing the loss of earning capacity.
Accordingly, the loss of earning capacity of the Appellant/claimant by
adopting the multiplier method will work out to Rs.6,04,800/- (5000 + 40%
= 7000 x 12 x 18 x 40%).
12. The Tribunal has separately awarded a compensation of
Rs.6,000/- towards injury which is unsustainable and not in accordance with
law and the same is set aside by this Court. Since this Court has adopted the
multiplier method for the purpose of assessing the loss of earning capacity
of the Appellant/claimant, the question of separately awarding the disability
compensation will not arise and therefore, the compensation awarded by the
Tribunal towards disability at Rs.65,000/- is also set aside by this Court.
The Tribunal has awarded a compensation of Rs.40,000/- towards loss of
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C.M.A.No.2039 of 2015
income separately. This Court is of the considered view that since the
Appellant/claimant has been awarded loss of future prospects and the
multiplier method has been adopted for the purpose of assessing the loss of
earning capacity, the question of separately granting the compensation
towards loss of income will not arise. Hence, the compensation awarded by
the Tribunal at Rs.40,000/- towards loss of income is set aside by this Court.
13. Insofar as the compensation awarded by the Tribunal at
Rs.38,000/- towards pain and suffering, Rs.2,37,300/- towards medical
expenses, and another sum of Rs.7,000/- towards transportation is
concerned, the same is confirmed by this Court. However, the Tribunal has
awarded an excessive amount of Rs.37,200/- toward extra nourishment. In
accordance with the settled practice, this Court reduces the same to a sum of
Rs.10,000/- towards extra nourishment instead of Rs.37,200/- fixed by the
Tribunal.
14. However, the Tribunal has failed to award any compensation
towards attender charges and loss of amenities which the
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Appellant/claimant is legally entitled to as per the settled law. This Court in
accordance with the settled law awards a compensation of Rs.15,000/-
towards attender charges and another sum of Rs.15,000/- towards loss of
amenities, after giving due consideration to the period of the
Appellant/claimant's hospitalisation and the nature of injuries sustained by
him.
15. For the foregoing reasons, the compensation awarded by the
Tribunal under the impugned award is enhanced from Rs.5,75,500/- to
Rs.9,27,100/- as detailed hereunder:
Heads Amount awarded by the Amount awarded by
Tribunal this Court
(Rs.) (Rs.)
Loss of earning capacity 1,45,000/- 6,04,800/-
(5000 + 40% = 7000 x 12
x 18 x 40%)
Injury 6,000/- ---
For disability 65,000/- ---
Pain and suffering 38,000/- 38,000/-
Medical Bills 2,37,300/- 2,37,300/-
Transportation 7,000/- 7,000/-
Extra nourishment 37,200/- 10,000/-
Loss of income 40,000/- ---
Loss of amenities --- 15,000/-
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C.M.A.No.2039 of 2015
Heads Amount awarded by the Amount awarded by
Tribunal this Court
(Rs.) (Rs.)
Attender charges --- 15,000/-
Total 5,75,500/- 9,27,100/-
16. In the result, the appeal is partly allowed. The second respondent
Insurance Company is directed to deposit the amount awarded by this Court
after deducting the amount already deposited by them, if any, together with
interest at the rate of 7.5% per annum from the date of claim till the date of
realisation to the credit of MCOP.NO.16 of 2012 within a period of four
weeks from the date of receipt of a copy of this Judgment. On such deposit
being made, the Tribunal shall transfer the amount lying to the credit of
MCOP.No.16 of 2012 to the bank account of the Appellant/claimant
through RTGS within a period of one week. No costs.
07.07.2021
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Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
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C.M.A.No.2039 of 2015
ABDUL QUDDHOSE, J.
nl
To
1. The Additional District Court at Namakkal.
2.The Section Officer, V.R.Section, High Court of Madras.
C.M.A.No.2039 of 2015
07.07.2021
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