Madras High Court
The Divisional Manager vs Arumugam on 6 September, 2021
C.M.A. Nos.141 and 1665 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.09.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. Nos.141 and 1665 of 2021
and CMP.Nos.966 and 6932 of 2021
The Divisional Manager,
M/s.United India Insurance Co. Ltd.,
No.14, Whites Road,
Sudarsan Building II Floor,
Chennai 600 014. ... appellant in CMA.141 of 2021
Vs.
1. Arumugam
2. Kathiravan ...respondents in CMA.141 of 2021
Arumugam ... appellant in CMA.1665 of 2021
Vs.
1. Kathiravan
2. The Divisional Manager,
M/s.United India Insurance Co. Ltd.,
No.14, Whites Road,
Sudarsan Building II Floor,
Chennai 600 014. ...respondents in CMA.1665 of 2021
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C.M.A. Nos.141 and 1665 of 2021
Prayer in CMA.No.141 of 2021: Civil Miscellaneous Appeal filed
under Section 173 of Motor Vehicle Act, 1988 against the award and decree
dated 07.12.2018 made in MCOP.No.656 of 2015 on the file of the Motor
Accidents Claims Tribunal, Additional Sub Judge, Puducherry.
Prayer in CMA.No.1665 of 2021: Civil Miscellaneous Appeal filed
under Section 173 of Motor Vehicle Act, 1988 for enhancement of the
compensation awarded in the judgment and decree dated 07.12.2018 made
in MCOP.No.656 of 2015 on the file of the Motor Accidents Claims
Tribunal, Additional Sub Judge, Puducherry.
In CMA.No.141 of 2021:
For Appellant : Mr.S.Arun Kumar
For Respondents
for R1 : Mr.V.Elangovan
for R2 : Notice unclaimed
in CMA.No.1665 of 2021:
For Appellant : Mr.V.Elangovan
For Respondents
for R1 : Notice unclaimed
for R2 : Mr.S.Arun Kumar
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C.M.A. Nos.141 and 1665 of 2021
COMMON JUDGMENT
[Judgment of the Court was delivered V.SIVAGNANAM, J]
The appeals are heard through video conferencing.
2. Challenging the award passed by the Motor Accidents Claims
Tribunal, Additional Sub Judge, Puducherry in MCOP.No.656 of 2015,
dated 07.12.2018, CMA.No.141 of 2021 has been filed by the Insurance
Company.
3. Not being satisfied with the quantum of compensation awarded by
the Motor Accidents Claims Tribunal, Additional Sub Judge, Puducherry in
the very same order, CMA.No.1665 of 2021 has been filed by the claimant.
4. For the sake of convenience, the parties are referred to as per their
ranking before the Tribunal.
5. It is the case of the claimant that on 04.04.2015 at about
03.00 hours, he was returning from Chidambaram to Vanur along with his
friends, in a Tata Indica Car bearing Registration No.PY-01-BK-7709,
driven by its driver/Ramalingam. When they were nearing SRS Tiles at
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C.M.A. Nos.141 and 1665 of 2021
Reddiarpalayam, Puducherry, the driver of the said Car drove the vehicle in
a rash and negligent manner and hit the divider of the road. Due to the
impact, the claimant sustained grievous injuries all over the body.
Immediately, he was taken to Government General Hospital, Puducherry
and given first-aid and thereafter, he took treatment in other Hospitals. The
claimant underwent surgery in his right leg on 22.04.2015 and discharged
on 13.05.2015. The claimant, who was practicing as an Advocate before the
accident, could not continue his avocation. Hence, he laid a claim petition
claiming a sum of Rs.33,00,000/- as compensation.
6. Resisting the claim made by the claimant, the Insurance Company
filed a counter statement inter alia contending that the accident had not
occurred in the manner as projected by the claimants. They also denied the
the age, occupation and income of the claimant.
7. In order to prove the claim before the Tribunal, the claimant
examined himself as PW1 and marked Exs.P1 to P17. On the side of the
Insurance Company, neither any oral evidence was adduced nor any
document was marked.
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C.M.A. Nos.141 and 1665 of 2021
8. The Tribunal after analysing the entire evidence came to the
conclusion that the accident had occurred only due to the rash and negligent
driving of the driver of the Car bearing Registration No.PY-01-BK-7709.
By coming to such conclusion, the Tribunal passed an award for a sum of
Rs.24,10,200/- and directed the Insurance Company to pay the above
compensation.
9. It is the submission of the learned counsel for the Insurance
Company that the Tribunal failed to note that Ex.X1 Disability Certificate
does not indicate the percentage of disability sufffered to the claimant and
also not mentioned whether it is of partial or partial permanent or
permanent in nature. The Tribunal failed to note that mild shoulder
dislocation would have been rectified immediately and the same would not
result in any disablement. Further, the said certificate does not reveal as to
whether the disablement assessed is in respect of whole body or in respect
of a single part. The Tribunal ought not to have placed reliance upon Ex.X1,
since the Board had not annexed the working sheet and guidelines for
arriving at the percentage of disability. The Tribunal failed to differentiate
between disability and loss of earning power. The Tribunal, by following
the principles enunciated by the Supreme Court in the judgment reported in
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C.M.A. Nos.141 and 1665 of 2021
2011 ACJ 1 (SC) (Rajkumar vs. Ajaykumar), ought to have fixed the
disability of the claimant at 35%. However, the Tribunal, by fixing the
disability at 71%, awarded a huge sum of Rs.22,15,200/- under the head
Permanent Disability.
10. The learned counsel for the first respondent/claimant submitted
that the claimant is a practicing advocate. Due to the accident, he sustained
grievous injuries, viz., right acetabulum and left shoulder dislocation, which
caused permanent disablement. The Medical Board also gave the opinion
that he sustained 71% disability. Due to the accident, the claimant could not
even lead a normal life.
11. Heard both sides and perused the materials available on record.
12. Considering the avocation of the claimant and the cost of living
prevalent at the time of the accident, this Court is of the view that the sum
of Rs.20,000/- taken as monthly income of the claimant is just and proper.
However, the point that has to be considered is that the Tribunal, without
properly appreciating the injuries suffered by the claimant, just by relying
on Ex.X1 Disability Certificate, had taken the disability of the claimant at
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C.M.A. Nos.141 and 1665 of 2021
71%. On a perusal of the Disability Certificate, it is seen that the nature of
disability has not been spellt out, i.e., whether the disablement is permanent,
partial permanent, or temporary one. This Court, on going through the
medical records, Ex.X1 Disability Certificate and the photographs produced
by the claimant comes to the conclusion that that the disability suffered by
the claimant would not have prevented him from carrying on his avocation
as an Advocate, though it might obstruct his smooth functioning. Hence,
this Court by following the case of Rajkumar vs. Ajaykumar (referred
supra), fixes the disability of the claimant at 35%. The relevant paragraph
of the said judgment reads as follows:
"18. The Tribunal has proceeded on the basis that the
permanent disability of the injured-claimant was 45% and the
loss of his future earning capacity was also 45%. The Tribunal
overlooked the fact that the disability certificate referred to
45% disability with reference to left lower limb and not in
regard to the entire body. The said extent of permanent
disability of the limb could not be considered to be the function
disability of the body nor could it be assumed to result in a
corresponding extent of loss of earning capacity, as the
disability would not have prevented him from carrying on his
avocation as a cheese vendor, though it might impede in his
smooth functioning. Normally, the absence of clear and
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C.M.A. Nos.141 and 1665 of 2021
sufficient evidence would have necessitated remand of the case
for further evidence of this aspect. However, instead of
remanding the matter for a finding on this issue, at this
distance of time after nearly two decades, on the facts and
circumstances, to do complete justice, we propose to assess the
permanent functional disability of the body as 25% and the loss
of future earning capacity as 20%".
13. Since the age of the claimant at the time of the accident was
44 years, 25% of the income is to be added towards Future Prospects, if so
added, the total income comes to Rs.25,000/-. Resultantly, the Loss of
Future Income comes to Rs.13,65,000/- [25,000 x 25% x 12 x 13 x 35%].
14. In addition to that, this Court is inclined to modify the functional
heads as follows: Rs.1,00,000/- towards Pain and Sufferings; Rs.50,000/-
towards Transportation; Rs.50,000/- towards Attender Charges;
Rs.50,000/- towards Future Medical Expenses. Further, this Court confirms
the award passed by the Tribunal in the following heads: Rs.25,000/-
towards Extra Nourishment; Rs.1,00,000/- towards Medical Expenses; In
total, the claimant is entitled to Rs.18,00,000/- along with interest at the rate
of 7.5% per annum from the date of claim petition till the date of
realization.
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C.M.A. Nos.141 and 1665 of 2021
15. Thus, the total compensation payable to the claimant are re-
calculated and tabulated below:
S. Amounts awarded Amounts awarded Amounts awarded
No under the heads by the Tribunal in Rs. by this Court in Rs.
1. Permanent Disability/ 22,15,200 13,65,000
Loss of Future Income
2. Pain and Sufferings 50,000 1,00,000
3. Extra Nourishment 25,000 25,000
4. Medical Expenses 1,00,000 1,00,000
5. Transportation 10,000 50,000
6. Attender Charges 10,000 50,000
7. Future Medical - 50,000
Expenses
8. Loss of Amenities - 60,000
Total 24,10,000 18,00,000
(Total amount comes to
Rs.24,10,200/-, but Tribunal
wrongly mentioned as
Rs.24,10,000)
16. In view of the above modifications, CMA.No.141 of 2021 is
partly allowed and CMA.No.1665 of 2021 is dismissed. The Insurance
Company is directed to deposit the above modified award amount with
accrued interest and costs, less the amount already deposited, if any, within
a period of eight weeks from the date of receipt of a copy of this judgment.
On such deposit, the claimant is permitted to withdraw the award amount,
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C.M.A. Nos.141 and 1665 of 2021
less the amount already withdrawn, if any, together with interest and costs.
No costs. Consequently, connected Miscellaneous Petitions are closed.
[M.K.K.S, J] [V.S.G., J]
06.09.2021
Index : Yes / No
Speaking order: Yes/No
pvs
To
1. The Motor Accidents Claims Tribunal/
Additional Sub Judge, Puducherry
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. Nos.141 and 1665 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
pvs
C.M.A. Nos.141 and 1665 of 2021
06.09.2021
https://www.mhc.tn.gov.in/judis/
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