Madras High Court

Sankar vs S. Shanmugasundaram on 8 July, 2021

                                                                                CMA No.1507 of 2016

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 08.07.2021

                                                       CORAM:

                             THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE

                                                C.M.A.No.1507 of 2016


                     Sankar, S/o. Kaliyaperumal                                 ...Appellant
                                                         ..Vs..

                     1. S. Shanmugasundaram
                        S/o. Sabanayagam Pillai
                     2. The Divisional Manager
                        M/s. United India Insurance Co. Ltd.
                        Nethaji Road, Cuddalore-1                             ...Respondents

                     PRAYER: Civil Miscellaneous Appeals filed under Section 173 of
                     Motor Vehicles Act, 1988 against the judgment and decree dated
                     15.04.2016 in MCOP No.498 of 2006 on the file of Motor Accidents
                     Claims Tribunal (1st Additional District Court), Cuddalore.

                               For Appellant     : Mr. S. Kalyanaraman

                               For R1            : No appearance.
                               For R2            : Mr. J. Chandran



                                                     JUDGMENT

This appeal has been filed by the claimant seeking enhancement of

compensation under the impugned award dated 15.04.2016 passed by the

Motor Accidents Claims Tribunal (1st Additional District Court),

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CMA No.1507 of 2016

Cuddalore, in MCOP No.498 of 2006.

2. The appellant/claimant, unsatisfied with the quantum of

compensation awarded by the Tribunal, has filed this Civil Miscellaneous

Appeal seeking for enhancement.

3. The Tribunal under the impugned award, directed the

respondents to pay the appellant a compensation of Rs.3,33,200/- as

detailed hereunder.

                                              Heads           Amount awarded
                                                               by the Tribunal
                                                                    (Rs.)
                                   Permanent Disability 40%          2,59,200/-
                                   Pain and suffering                  25,000/-
                                   Medical expenses                    10,000/-
                                   Extra Nourishment                   10,000/-
                                   Attender Fees                       10,000/-
                                   Transport Charges                   10,000/-
                                   Loss of income (3x3000)              9,000/-
                                   Total                             3,33,200/-


                               4. The appellant / claimant sustained the following    grievous

injuries as a result of the accident caused by a vehicle insured with the

second respondent on 21.05.2005.

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CMA No.1507 of 2016

1. Fracture on back bone

2. A fracture on femur joint

3. Reputure of Urithira and damages to kidney

4. Heavy implact on chest. 10 sutured wounds around

penis and scrottam areas.

5. Before the Tribunal, the appellant / claimant has filed 18

documents, which were marked as Exs.P1 to P18 and three witnesses

were examined on the side of the appellant/claimant, namely, the

appellant/claimant himself as P.W.1., and the two doctors who examined

the claimant as P.W.2 and P.W.3 respectively. On the side of the

respondents, neither any document was filed nor any witness examined

before the Tribunal. The nature of injuries sustained by the

appellant/claimant referred to supra has not been disputed by the

respondents before the Tribunal.

6. The doctor who has examined the appellant/claimant has

deposed that, on a perusal of medical records it reveals that the

appellant/claimant sustained grievous injuries and from the X-ray, it

reveals that he has sustained pubic bone superior and inferior pubic rami

fracture. He has also deposed that the appellant/claimant cannot stand

without the support of his right leg. He has also deposed that the https://www.mhc.tn.gov.in/judis/

CMA No.1507 of 2016

movements of right hip of the appellant / claimant has been restricted due

to the injuries sustained by him. The appellant/claimant has also deposed

before the Tribunal that he has sustained injuries on his private parts and

urine box and his testicles got damaged due to the injuries sustained by

him as a result of the accident. The doctor (P.W.2) has assessed the

disability of the appellant/claimant at 50%.

7. The doctor (P.W.3) has deposed that at the time of medical

examination of the appellant/claimant, he found that the

appellant/claimant sustained difficulty in Micturition, Hesitancy,

frequency, urgency and incontinence, burning sensation with fever on

and off. The doctor (P.W.3) has also deposed that the appellant/claimant

has developed post traumatic stricture urethra inspite of continuous

treatments at tertiary, institutions and undergoing two major surgeries.

The doctor has also deposed that the appellant/claimant is prone to

regular urinary tract infection as a result of the injury sustained by him.

The doctor P.W.3 has assessed the disability of the appellant/claimant at

30% and issued the disability certificate accordingly, which has been

marked as Ex.P18 before the Tribunal. The Tribunal, after taking into

consideration the evidence placed on records, which includes the

disability certificates Exs.P16 and P18 issued by P.W.2 and P.W.3 doctors https://www.mhc.tn.gov.in/judis/

CMA No.1507 of 2016

respectively has fixed the whole body disability of the appellant/claimant

at 40% and adopted multiplier method for the purpose of assessing the

loss of earning capacity of the appellant/claimant. This Court does not

find any infirmity with regard to the finding of the Tribunal that the

appellant/claimant has suffered 40% whole body disability. However, the

Tribunal has erroneously fixed the notional income of the

appellant/claimant at a paltry sum of Rs.3,000/- per month. In the claim

petition, it is mentioned that the appellant/claimant is a washerman and

he was earning Rs.200/- per day. The accident happened in the year

2005. If the year of the accident is taken into consideration, this Court is

of the considered view that the Tribunal should have fixed the notional

income of the appellant/claimant on a higher sum. After giving due

consideration to the year of the accident and provisions of Mininum

Wages Act, this Court fixes the notional monthly income of the

appellant/claimant at Rs.4,500/- instead of Rs.3,000/- fixed by the

Tribunal. Accordingly, the loss of earning capacity of the appellant /

claimant is fixed by this Court at Rs.3,88,800/-, as detailed hereunder,

instead of Rs.2,59,200/-, awarded by the Tribunal to the appellant /

claimant towards the compensation for his disability.

Rs.4,500/- x 12x 18 x 40/100 = Rs.3,88,800/-

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CMA No.1507 of 2016

8. As observed earlier, the appellant/claimant has sustained

grievous injuries, that too, in his private parts, which has caused him

difficulty in passing urine. The learned counsel for the appellant also

drew the attention of this Court to the various discharge summaries

issued by the hospital, which are marked as exhibits before the Tribunal,

which reveals that ever since the date of accident the appellant/claimant

has been taking continuous treatment for the injuries sustained by him. It

is also seen from the discharge summaries that he has also underwent

several surgeries. However, the Tribunal, in the impugned award, has

awarded a meager compensation of Rs.25,000/- towards pain and

sufferings. This Court, after giving due consideration to the year of the

accident and the nature of injuries sustained by the appellant/claimant,

fixes the compensation towards pain and sufferings at Rs.50,000/-

instead of Rs.25,000/- fixed by the Tribunal.

9. This Court is of the considered view that the Tribunal has

awarded a meager compensation of Rs.9,000/- towards loss of income

during the period of appellant/claimant's treatment at Rs.3,000/- per

month for a period of 3 months, which has to be necessarily enhanced in

view of the fact that the appellant has sustained grievous injuries as

indicated above. This Court is of the considered view that atleast for a https://www.mhc.tn.gov.in/judis/

CMA No.1507 of 2016

period of 8 months, the appellant/claimant would have been unable to do

his regular work as a washerman due to the grievous injuries sustained

by him. Hence, this Court fixes the compensation towards loss of

income at Rs.36,000/- (calculated at Rs.4,500/- per month for a period of

8 months). The Tribunal has also erroneously failed to award any

compensation towards the loss of amenities, which the appellant/claimant

is legally entitled to in accordance with settled law. This court awards a

compensation of Rs.10,000/- towards loss of amenities to the

appellant/claimant.

10. As regards the compensation awarded by the Tribunal at

Rs.10,000/- towards medical expenses, Rs.10,000/ towards extra

nourishment, Rs.10,000/- towards attendant charges and Rs.10,000/-

towards transportation charges are concerned, the same is a just

compensation and the same is confirmed by this Court.

11. The appellant/claimant was aged 25 years and was a bachelor

at the time of accident. Due to the injuries sustained by him in his

private parts as a result of the accident, he would have certainly lost his

marital prospects. Hence, compensation will have to be awarded

towards loss of marital prospects also, which the Tribunal has

erroneously failed to award. This Court awards a compensation of https://www.mhc.tn.gov.in/judis/

CMA No.1507 of 2016

Rs.10,000/- towards the loss of marital prospects to the

appellant/claimant.

12. For the foregoing reasons, the compensation awarded by the

Tribunal under the impugned award is enhanced from Rs.3,33,200/- to

Rs.5,34,800/- in the following manner.

                                           Heads             Amount              Amount
                                                            awarded by         awarded by
                                                           the Tribunal         this Court
                                                               (Rs.)
                                   Permanent Disability        2,59,200/-   3,88,800/-
                                   40%                     (3000x12x18x (4500x12x18x
                                                                  40/100)      40/100)
                                   Pain and suffering              25,000/-         50,000/-
                                   Medical expenses                10,000/-         10,000/-
                                   Extra Nourishment               10,000/-         10,000/-
                                   Attender Fees                   10,000/-         10,000/-
                                   Transport Charges               10,000/-         10,000/-
                                   Loss of income                    9,000/-         36,000/-
                                                                   (3x3000)         (8x4500)
                                   Loss of Amenities                       -        10,000/-
                                   Loss of marital                         -        10,000/-
                                   prospects
                                   Total                          3,33,200/-       5,34,800/-

13. In the result, the appeal filed by the appellant / claimant,

stands partly allowed by enhancing the compensation from Rs.3,33,200/- https://www.mhc.tn.gov.in/judis/

CMA No.1507 of 2016

to Rs.5,34,800/-, as indicated above. No costs. Consequently, connected

miscellaneous petition is closed.

14. The second respondent / Insurance Company is directed to

deposit the entire award amount as assessed by this Court together with

interest at 7.5% p.a. from the date of claim petition till the date of

realization, less the amount, if any, already deposited to the credit of

MCOP No.498/2006 on the file of the Motor Accidents Claims Tribunal

(1st Additional District Court), Cuddalore, within a period of eight weeks

from the date of receipt of a copy of this Judgment. On such deposit