Madras High Court
Mahindrakumar vs )Rep By Its Director on 26 July, 2021
CMA(MD)No.43 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.07.2021
(Reserved on 22.03.2021)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CMA(MD)No.43 of 2021
Mahindrakumar ... Appellant
vs.
1)Rep by its Director,
Jeyarathna Motors Private Limited,
Door No.551 B, Thenkasi Road,
Rajapalayam,
Virudhunagar District.
2)The Branch Manager,
The Oriental Insurance Company Limited,
Door No : 1548, Thenkasi Road,
Rajapalayam,
Virudhunagar District. ... Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated
27.11.2019 in MCOP.No.244 of 2018 on the file of the learned Chief
Judicial Magistrate Court, Virudhunagar.
For Appellant : Mr.P.Ganapathi Subramanian
For R2 : Mr.K.Bharathan
For R1 : No appearance
https://www.mhc.tn.gov.in/judis/
1/8
CMA(MD)No.43 of 2021
JUDGMENT
Not satisfied with the quantum of compensation, the claimant has
filed this appeal.
2.In an accident which occurred on 18.01.2018, the
appellant/claimant sustained fracture of right femur, right tibia, head of
the right femur and left hand and injury in head. For the injuries
sustained in the accident, the appellant filed MCOP.No.244 of 2018 on
the file of the learned Chief Judicial Magistrate Court, Virudhunagar,
claiming compensation of Rs.50,00,000/-. The 2nd respondent insurance
company with which the offending bus involved in the accident, was
insured, resisted the claim and filed counter denying the manner of
accident and the compensation claimed under various heads. The
Tribunal considering the oral and documentary evidence adduced on both
sides, held that the accident had occurred due to the rash and negligent
driving of the driver of the bus insured with the 2nd respondent and
directed the 2nd respondent to pay compensation of Rs.11,82,795/- with
7.5% interest per annum from the date of petition till the date of deposit.
Seeking enhancement on the quantum, the claimant has filed this appeal.
3.The learned counsel for the appellant would state that at the time
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.43 of 2021
of accident, the appellant was aged 19 years and he was an Engineering
student pursuing IInd year Engineering degree course and due to fracture
of right femur, right tibia and left hand which resulted in 78% permanent
disablement, he is not able to do any work and therefore, the Tribunal
ought to have adopted multiplier method to compute the loss of earning
capacity by fixing notional monthly income of the appellant at Rs.
12,000/-, instead, it has merely awarded Rs.3,000/- for each percentage
of disability which is erroneous. He would further state that the appellant
took treatment for 46 days in a private hospital, but no amount has been
awarded for attendant charges and the Tribunal ought to have awarded
Rs.2,00,000/- towards attendant charges. He would also state that during
the period of treatment, the appellant underwent four surgeries and due
the injuries, he is still taking treatment as outpatient, but the Tribunal has
not granted any sum towards future medical expenses and loss of
amenities and a sum of Rs.2,00,000/- each ought to be awarded under
that heads.
4.The learned counsel for the petitioner would further state that
due to the fracture of right femur, head of right femur, right tibia and the
surgeries underwent by the appellant on 4 occasions, the appellant would
have experienced severe pain and suffering and the award of the Tribunal
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.43 of 2021
at Rs.1,20,000/- is on the lower side and a sum of Rs.2,00,000/- should
be awarded for pain and suffering. He would further state that due to the
injuries, the appellant lost the marriage prospects and therefore, the
Tribunal ought to have awarded Rs.2,00,000/- and the award of Rs.
20,000/- for extra nourishment is low and it requires enhancement to Rs.
1,00,000/-. Thus, he would pray for enhancement on the quantum. In
support of his contentions, he would rely on various decisions.
5.The learned counsel for the 2nd respondent insurance company
would state that the Tribunal finding that the disablement suffered by the
appellant did not affect his earning capacity, has rightly awarded Rs.
3,000/- for each percentage of disability and considering the evidence
and circumstances of the case, the Tribunal has awarded just and proper
compensation under other heads which does not require interference by
this Court.
6.Heard the learned counsel for the appellant as well as the 2nd
respondent.
7.From the perusal of the records, it is seen that the appellant is the
IInd year engineering student and due to the fracture of right femur, right
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.43 of 2021
tibia, head of the right femur and left hand and injury in head, he has lost
his free movement and normal life routine. The appellant had taken
treatment for 46 days in a private hospital and the Doctor has assessed
permanent disability sustained by the appellant at 78%. Thus, I am not
able to understand on what basis the learned Judge had stated that the
appellant had not lost his earning capacity. The appellant has lost most
of his future expectations like, suitable avocation and marriage prospects
etc. It is also seen that the appellant has underwent surgeries on 4
occasions and considering the nature of injuries and the age of the
appellant, the Tribunal ought to have adopted multiplier method, but had
given Rs.3,000/- towards each percentage of disability. In my opinion,
going by the nature of injuries, the appellant's case should have been
treated as 100% functional disability and therefore, necessarily multiplier
method is to be adopted.
8.At the time of accident, the appellant was an engineering student
and therefore, relying upon the judgment of the Division Bench of this
Court in Branch Manager, Oriental Insurance Company Ltd., vs
U.Gopinath reported in CDJ 2014 MHC 6007, a sum of Rs.12,000/- is
fixed as the notional monthly income of the appellant. After adding 40%
towards future prospects, the monthly income comes to Rs.16,800/-.
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.43 of 2021
Since the appellant was a bachelor at the time of accident, as per the
judgment in Smt.Sarla Verma and others vs. Delhi Transport Corporation
and another (2009) 6 SCC 121, 50% of his income has to be deducted
towards the personal expenses. Accordingly, after 50% deduction, the
monthly income comes to Rs.8,400/-. After computing annual income
and applying multiplier 18 according to the age of the deceased, the loss
of earning capacity due to 100% functional disability works out to Rs.
18,14,400/-. Accordingly, the award of the Tribunal at Rs.2,34,000/-
towards loss of partial permanent disability is enhanced to Rs.
18,14,400/-. Except the above, the award under other heads are not
interfered with. Accordingly, the total compensation is fixed at Rs.
27,63,195/- as against Rs.11,82,795/- awarded by the Tribunal.
9.The 2nd respondent insurance company is directed to deposit the
modified compensation of Rs.27,63,195/- with 7.5% interest per annum
from the date of petition till the date of deposit, less the amount already
deposited, if any, to the credit of the claim petition within a period of
eight weeks from the date of receipt of a copy of this judgment. On such
deposit, the appellant/claimant is permitted to withdraw the same without
filing formal permission petition before the Tribunal.
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.43 of 2021
10.With the above direction, this Civil Miscellaneous Appeal is
allowed in part. No costs.
Index :yes/No 26.07.2021
Internet:yes/No
bala
To
The Chief Judicial Magistrate,
Virudhunagar.
https://www.mhc.tn.gov.in/judis/
CMA(MD)No.43 of 2021
J.NISHA BANU, J.
bala
PRE-DELIVERY JUDGMENT MADE IN
CMA(MD)No.43 of 2021
DATED : 26.07.2021
https://www.mhc.tn.gov.in/judis/
