Madras High Court
National Insurance Company Ltd vs A.Sathish Kumar … Petitioner/ on 3 March, 2021
C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 3.3.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
Civil Miscellaneous Appeal No.3477 of 2013
Cross Obj.No.5 of 2016 and
M.P.No.1 of 2013, M.P.No.1 of 2015 & C.M.P.No.2519 of 2020
National Insurance Company ltd.,
Attur, Salem District. ... 2nd Respondent/Appellant in
C.M.A.No.3477 of 2013
3rd Respondent in Cross Obj.No.5/2016
..Vs..
1. A.Sathish Kumar … Petitioner/Respondent-1 in
C.M.A.No.3477 of 2013
Cross Objector in Cross Obj.No.5/2016
2. R.R.Chinnaswamy
3. A.K.Varadharajan .. Respondents-1 & 2/Respondents-2 & 3
Respondents 1 & 2 in Cross Obj.No.5/2016
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgment and decree dated 11.1.2013 made in M.C.O.P.No.2229 of 2012 on the
file of Special Sub Court (Motor Accidents Claims Tribunal) Coimbatore.
Cross Objection filed under Order 41 Rules 22 of C.P.C. against the
judgment and decree, dated 11.1.2013 made in M.C.O.P.No.2229 of 2012 on the
file of Special Sub. Court (Motor Accident Claims Tribunal), Coimbatore.
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1/12
C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
For Appellant/Ins. Company : Mr.G.Udhayshankar
For Respondent/Claimant : Mr.Parthi Kannan
*****
COMMON JUDGMENT
Both appeal and Cross objection filed against the award passed by
the Motor Accidents Claims Tribunal (Special Sub Court), Coimbatore, dated
11.1.2013, in M.C.O.P.No.2229 of 2012, both are heard together and disposed of
by common judgment.
2 Brief facts of the case is as follows:
On 24.10.2009 at about 10.00 a.m. when the petitioner was riding his
Yamaha motorcycle bearing registration No.TN-37-BB-1409 at Podhanur –
Nanjundapuram road, second respondent herein drove a lorry bearing registration
No. TN-27-T-8822 from opposite direction in a rash and negligent manner without
adhering traffic rules and hit against the petitioner's motorcycle, thereby caused
accident, resulting the petitioner fell down and sustained grievous injuries. A
case has been registered in Cr.No.280 of 2009 under Section 279 and 338 of I.P.C.
by T.I.W. (West) Police station. The petitioner has filed a claim petition before
the tribunal claiming compensation of Rs.15,00,000/- against the appellant and
the third respondent herein being the insurer and owner of the vehicle.
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C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
3. The appellant/Insurance Company has filed a counter statement
denied the averments made in the claim petition and disputed negligence as well
as liability against the Insurance Company.
4. The second and third respondent herein remained exparte before
the tribunal. On the side of the claimants, P.W.1 to 4 were examined and Ex.P1
to P19 were marked. On the side of the Insurance Company/appellant, no witness
was examined or any document marked.
5. Tribunal, based on the oral and documentary evidence and upon
hearing both sides, found that due to rash and negligent driving of the lorry driven
by its driver caused accident and fixed the liability as against the appellant/
Insurance Company and awarded a sum of Rs.13,96,445/- as compensation to the
claimant along with interest at the rate of 7.5% per annum from the date of claim
petition till realization. The award passed by the tribunal under various heads are
as follows:
Heads Amount in Rs.
Partial Permanent disability 33% 4,71,240/-
7000 x 12 x 17 x 33%
Transport to hospital 5,000/-
Extra Nourishment 5,000/-
Pain & sufferings 40,000/-
Medical bills 8,43,500/-
Damages to the vehicle 31,705/-
Total : 13,96,445/-
6. Challenging the said award, the Insurance Company has filed the
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C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
present appeal against the award passed by the tribunal fastening liability on the
Insurance Company and also on the ground of quantum of compensation. The
respondent/claimant also filed Cross Objection No.5 of 2016 for enhancement of
compensation.
7. Heard the learned counsel appearing for the appellant/Insurance
Company, the learned counsel appearing for the respondent/claimant and perused
the materials available on record.
8. The respondent/claimant marked Ex.P1 to P19 especially Ex.P3
Wound certificate, Ex.P5 Medical bills, Ex.P6 Discharge summaries, Ex.P7 X-rays,
Ex.P8 Scan reports, Ex.P10 Photograph of the wound and Ex.P13 disability
certificate, etc. were produced before the tribunal and P.W.1 to 4 were
examined. P.W.2 Dr.K.Gajendran deposed before the tribunal that based on the
aforesaid document, he assessed 33% partial permanent disability sustained by the
petitioner due to the accident. The tribunal also found that the petitioner has
undergone three surgeries and his face was severely injured due to the accident.
According to the learned counsel appearing for the appellant, the tribunal wrongly
adopted multiplier method when there is no evidence placed before the tribunal
to prove that the respondent/claimant suffered future earning capacity due to the
said accident. P.W.2 Doctor who examined the victim, assessed 33% partial
permanent disability. Therefore, award passed by the tribunal under the head
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C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
partial permanent disability is excessive and same is liable to be modified. In
sofar as other heads also, the appellant seeks modification.
9 The claimant/respondent in the Cross objection contended that
the claimant suffered 33% partial permanent disability, he was admitted in
hospital for five times and undergone three surgeries and due to the grievous
injuries, he suffered future earning capacity. Doctor assessed permanent
disability of 33% itself is very low and due to the grievous injuries, it will affect
100% future earning capacity. Therefore, tribunal ought to have taken Rs.12,000/-
as monthly income of the petitioner and the petitioner is entitled 50% towards
future prospects, whereas tribunal has not awarded any amount towards future
prospects. Further, no amount was awarded towards future medical expenses.
The tribunal ought to have awarded Rs.1,00,000/- for pain and sufferings instead
of Rs.40,000/. Therefore, the respondent/claimant seeks enhancement of
compensation.
10 Admittedly, the claimant suffered 33% partial permanent
disability. He produced Ex.P3 Wound certificate, Ex.P5 Medical bills, Ex.P6
Discharge summaries, Ex.P7 X-rays, Ex.P8 Scan reports, Ex.P10 Photograph of the
wound and Ex.P13 disability certificate, etc. On perusal of the award as well as
records, no material has been placed before the tribunal to prove that the
petitioner has lost his future earning capacity due to the said accident. There is
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C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
no discussion in the award that the appellant lost his future earning capacity.
However, the tribunal has stated that the claimant has undergone three surgeries
and therefore, adopted multiplier method. There is no oral or documentary
evidence to prove that the petitioner lost his future earning capacity.
11. In RAJ KUMAR VS. AJAY KUMAR AND OTHERS reported in
(2011) 1 SCC 343 the Hon'ble Supreme Court explained that the percentage of
permanent disability is expressed by the Doctors with reference to the whole
body, or more often than not, with reference to a particular limb. When a
disability certificate states that the injured has suffered permanent disability to
an extent of 45% of the left lower limb, it is not the same as 45% permanent
disability with reference to the whole body. The extent of disability of a limb (or
part of the body) expressed in terms of a percentage of the total functions of that
limb, obviously cannot be assumed to be the extent of disability of the whole
body. If there is 60% permanent disability of the right hand and 80% permanent
disability of left leg, it does not mean that the extent of permanent disability with
reference to the whole body is 140% (that is 80% plus 60%). If different parts of the
body have suffered different percentages of disabilities, the sum total thereof
expressed in terms of the permanent disability with reference to the whole body,
cannot obviously exceed 100%.
12. In the said judgment, the Hon'ble Supreme Court further held
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C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
that where the claimant suffers a permanent disability as a result of injuries, the
assessment of compensation under the head of loss of future earnings, would
depend upon the effect and impact of such permanent disability on his earning
capacity. The Tribunal should not mechanically apply the percentage of
permanent disability as the percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of economic loss, that is,
percentage of loss of earning capacity, arising from a permanent disability will be
different from the percentage of permanent disability. Some Tribunals wrongly
assume that in all cases, a particular extent (percentage) of permanent disability
would result in a corresponding loss of earning capacity, and consequently, if the
evidence produced show 45% as the permanent disability, will hold that there is
45% loss of future earning capacity. In most of the cases, equating the extent
(percentage) of loss of earning capacity to the extent (percentage) of permanent
disability will result in award of either too low or too high a compensation. What
requires to be assessed by the Tribunal is the effect of the permanently disability
on the earning capacity of the injured; and after assessing the loss of earning
capacity in terms of a percentage of the income, it has to be quantified in terms
of money, to arrive at the future loss of earnings (by applying the standard
multiplier method used to determine loss of dependency).We may however note
that in some cases, on appreciation of evidence and assessment, the Tribunal may
find that percentage of loss of earning capacity as a result of the permanent
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C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
disability, is approximately the same as the percentage of permanent disability in
which case, of course, the Tribunal will adopt the said percentage for
determination of compensation.
13. In sofar as assessment of permanent disability, the Hon'ble
Supreme Court has held as under:
''13. We may now summarise the principles
discussed above :
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference
to the whole body of a person, cannot be assumed to be the
percentage of loss of earning capacity. To put it differently, the
percentage of loss of earning capacity is not the same as the
percentage of permanent disability (except in a few cases, where
the Tribunal on the basis of evidence, concludes that percentage
of loss of earning capacity is the same as percentage of
permanent disability).
(iii) The doctor who treated an injured-claimant or who
examined him subsequently to assess the extent of his permanent
disability can give evidence only in regard the extent of
permanent disability. The loss of earning capacity is something
that will have to be assessed by the Tribunal with reference to
the evidence in entirety.
(iv) The same permanent disability may result in
different percentages of loss of earning capacity in different
persons, depending upon the nature of profession, occupation or
job, age, education and other factors.''
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C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
14. Reverting to the case on hand, the respondent/claimant has to
prove by evidence that he would suffer loss of future earning capacity and
therefore, in the light of the principles laid down by the Hon'ble Supreme Court,
the appellant has not let in evidence to prove that the petitioner suffered loss of
future earning capacity. Therefore, this Court disagree with the finding of the
tribunal by adopting multiplier method.
15 Therefore, no doubt, the respondent/claimant is entitled for
compensation for permanent disability. By considering percentage of disability
and also taking into account the respondent/claimant was admitted in the hospital
for five time and undergone three surgeries, it is appropriate for this Court to fix
Rs.4000/- per percentage to be fixed for permanent disability. Further, the
appellant is also entitled for compensation for loss of amenities, Attendant
charges, future medical expenses. Considering the aforesaid discussion and the
decision cited supra, the compensation awarded by the tribunal is modified as
under:
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C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
Heads Compensation Compensation
Awarded by the modified by
Tribunal this Court
Rs. Rs.
Partial Permanent disability 33% 4,71,240/- 1,32,000/-
4000 x 33%
Transport to hospital 5,000/- 10,000/-
Extra Nourishment 5,000/- 10,000/-
Pain & sufferings 40,000/- 40,000/-
Medical bills 8,43,500/- 8,43,500/-
Damages to the vehicle 31,705/- 31,705/-
Future medical expenses -- 30,000/-
Loss of amenities –- 15,000/-
Attendant charges – 9,000/-
Total : 13,96,445/- 11,21,205/-
Rounded of 11,21,000/-
The compensation awarded by the tribunal is modified to the aforesaid extent.
Except the above modification, the award passed by the tribunal is confirmed.
16. Accordingly, the respondent/claimant is entitled for
Rs.11,21,000/- (Rupees eleven lakhs twenty one thousand only) as fair and
reasonable compensation along with interest at the rate of 7.5% p.a. The
appellant/Insurance Company shall deposit the entire compensation amount less
the amount if any already deposited, within a period of six weeks from the date of
receipt of copy of the judgment. On such deposit, the respondent/claimant is
entitled to withdraw the same by filing appropriate application.
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C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
17. In fine, the Civil miscellaneous appeal is partly allowed. No
cost. Cross Objection No.5 of 2010 is also partly allowed. Connected
miscellaneous petitions are closed.
3.03.2021
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
vaan
To
1. The Special Sub Court (Motor Accidents Claims Tribunal) Coimbatore.
2. National Insurance Company ltd., Attur, Salem District.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3477 of 2013 & Cross Obj.No.5 of 2016
D.KRISHNAKUMAR, J.
vaan
Civil Miscellaneous Appeal No.3477 of 2013
Cross Obj.No.5 of 2016 and
M.P.No.1 of 2013, M.P.No.1 of 2015 &
C.M.P.No.2519 of 2020
Dated: 3.03.2021
https://www.mhc.tn.gov.in/judis/
