Madras High Court
S.Radhika (Minor) vs The Commissioner on 6 October, 2021
C.M.A.No.939 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.10.2021
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.939 of 2020
S.Radhika (Minor)
(Minor rep. by her mother & NF S.Visalatchi)*
*Accepted the cause title vide Court order
dated 20.01.2020 made in C.M.P.No.560/2020
in CMA.SR.No.159493/2019 (VMVJ) ... Appellant
..Vs..
1.The Commissioner,
Corporation of Chennai,
Ripon Building,
Chennai – 600 003.
(set ex parte in Trial Court)
2.The New India Assurance Co. Ltd.,
Motor Third Party Claims Office,
No.232, N.S.C. Bose Road,
Bombay Mutual Building,
Parrys, Chennai – 600 001. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and decree dated 16.07.2018
passed in M.C.O.P.No.4856 of 2016 by the Special Sub Judge No.1,
M.C.O.P. Tribunal, Court of Small Causes, Chennai – 104.
For Appellant : Mr.C.Richard Suresh Kumar
For Respondent 2 : Mr.J.Chandran
Respondent-1 : Ex parte
1/8
https://www.mhc.tn.gov.in/judis/
C.M.A.No.939 of 2020
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the claimant
seeking enhancement of compensation under the impugned award dated
16.07.2018 passed by the Motor Accident Claims Tribunal (Special Sub
Court No.1, Court of Small Causes, Chennai) in M.C.O.P.No.4856 of 2016.
2. Heard Mr.C.Richard Suresh Kumar, learned counsel for the
Appellant/claimant and Mr.J.Chandran, learned counsel for the second
respondent/ Insurance Company. The first respondent has remained ex parte
both before the Tribunal as well as this Court.
3. The Tribunal under the impugned award has directed the second
respondent to pay the appellant/claimant a compensation of Rs.2,76,400/- as
detailed hereunder:
Heads Award Amount
(Rs.)
Disability 1,05,000/-
Pain and Sufferings 30,000/-
Transportation 10,000/-
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C.M.A.No.939 of 2020
Heads Award Amount
(Rs.)
Medical Expenses 12,612/-
Extra Nourishment 20,000/-
Attender Charges 28,750/-
Loss of Studies 40,000/-
Loss of future prospectus & 30,000/-
Disfigurement
Total 2,76,362/-
rounded off to
Rs.2,76,400/-
4. The appellant/claimant was 11 years old and was a student studying
6th standard when the accident happened on 20.06.2016. As a result of an
accident the appellant/claimant sustained Grade III A Compound Fracture
Middle 1/3rd of Right Tibia with Soft Tissue injury Right Leg. The Doctor
has assessed the disability of the appellant/claimant at 40%.
5. The Tribunal has awarded the disability compensation of
Rs.1,05,000/-. The Tribunal has assessed disability of the appellant/claimant
at 35% without assigning any reason for the reduction of the disability from
40% assessed by the Doctor. Since no reasons have been given for the
reduction of the disability, this Court is of the considered view that the
disability assessed by the Doctor at 40% will have to be retained. However,
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C.M.A.No.939 of 2020
the said disability is not for the whole body. If the whole body disability has
to be taken into consideration, it should be approximately 1/3rd of 40% and
accordingly this Court fixes the whole body disability of the
appellant/claimant at 15%. The nature of injuries sustained by the
appellant/claimant has not been disputed by the respondents before the
Tribunal. The appellant was hospitalised for 115 days on the following
periods: (a) 20.06.2016 to 04.07.2016, (b) 18.07.2016 to 19.09.2016, (c)
02.10.2017 to 03.11.2017 and (d) 22.01.2018 to 24.01.2018. Apart from
being hospitalised, the appellant/claimant has to take regular treatment as
seen from the evidence available on record.
6. The Tribunal ought to have taken into consideration all the
aforementioned admitted factors and ought to have adopted the multiplier
method for assessing loss of earning capacity to the appellant/claimant.
Instead, the Tribunal has erroneously awarded disability compensation at
Rs.1,05,000/- on percentage basis. Since this Court is of the considered view
that multiplier method will have to be adopted for the purpose of assessing
compensation towards loss of earning capacity, this Court fixes the notional
monthly income of the appellant/claimant at Rs.7,000/- as the accident
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C.M.A.No.939 of 2020
happened on 20.06.2016. The multiplier of 15 is adopted by this Court since
the appellant/claimant was aged at 11 years at the time of the accident.
Accordingly, this Court awards compensation of Rs.1,89,000/- towards loss
of earning capacity to the appellant/claimant as detailed hereunder:
Rs.7,000/- x 12 months x proper multiplier of 15 x 15% Disability
7,000 x 12 x 15 x 15 / 100 = Rs.1,89,000/-
7. Since this Court has awarded compensation towards loss of earning
capacity to the appellant/claimant, the appellant/claimant is not separately
entitled to get compensation under disability at Rs.1,05,000/- as awarded by
the Tribunal. Hence, the disability compensation of Rs.1,05,000/- awarded
by the Tribunal under the impugned award is set aside by this Court. The
Tribunal has awarded a lesser compensation towards Pain and sufferings,
Transportation, Extra Nourishment and Attender charges which has to be
nationally enhanced by this Court as the nature of injuries sustained by the
appellant/claimant and the long period of her hospitalisation deserves a
higher compensation. Accordingly, this Court enhances the compensation
towards Pain and Sufferings from Rs.30,000/- to Rs.75,000/-, towards
Transportation from Rs.10,000/- to Rs.15,000/-, towards Extra Nourishment
from Rs.20,000/- to Rs.30,000/- and towards Attender charges from
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C.M.A.No.939 of 2020
Rs.28,750/- to Rs.40,000/-. Insofar as the compensation awarded by the
Tribunal under the heads of Medical Expenses, which are supported by
Medical Bills, Loss of Studies at Rs.40,000/-, Loss of future prospects and
disfigurement at Rs.30,000/- are concerned, the same cannot be considered
to be inadequate as alleged by the appellant/claimant and therefore the same
is confirmed by this Court.
8. For the forgoing reasons, the compensation awarded by the Tribunal
under the impugned award is enhanced from Rs.2,76,400/- to Rs.4,31,612/-
as detailed hereunder:
Heads Amount awarded Amount awarded by
by the Tribunal this Court
(Rs.) (Rs.)
Disability 1,05,000/- -
Pain and Sufferings 30,000/- 75,000/-
Transportation 10,000/- 15,000/-
Medical Expenses 12,612/- 12,612/-
Extra Nourishment 20,000/- 30,000/-
Attender Charges 28,750/- 40,000/-
Loss of Studies 40,000/- 40,000/-
Loss of Future prospects and 30,000/- 30,000/-
disfigurement
Loss of Earning Capacity - 1,89,000/-
Total 2,76,362/- 4,31,612/-
rounded off to
2,76,400/-
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C.M.A.No.939 of 2020
Conclusion:
9. In the result, this appeal shall stands partly allowed. The Second
Respondent Insurance Company is directed to deposit the amount awarded
by this Court i.e. Rs.4,31,612/- (Rupees Four lakhs Thirty One thousand Six
hundred and Twelve only) together with interest at the rate of 7.5% per
annum from the date of claim till the date of deposit and costs after
deducting the amount already deposited to the credit of M.C.O.P.No.4856 of
2016 within a period of four weeks from the date of receipt of a copy of this
Judgment. On such deposit being made, the Tribunal is directed to transfer
the amount lying to the credit of M.C.O.P.No.4856 of 2016 to the bank
account of the Appellant/claimant through RTGS within a period of one
week thereafter. The requisite Court fee, if any has to be paid by the
Appellant before receiving the copy of this Judgment, which was exempted
by an order of this Court earlier. No costs.
06.10.2021
Index : Yes/No
Internet:Yes/No
Speaking/Non-speaking order
rsi
https://www.mhc.tn.gov.in/judis/
C.M.A.No.939 of 2020
ABDUL QUDDHOSE, J.
rsi
To
1.The Special Sub Court No.1,
Court of Small Causes, Chennai.
2.The Section Officer
V.R.Section, High Court of Madras.
C.M.A.No.939 of 2020
06.10.2021
https://www.mhc.tn.gov.in/judis/
