Nirmala vs The New India Assurance Co. Ltd
2022 Latest Caselaw 13694 Mad

                                                                C.M.A. Nos.1458 & 1459 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 02.08.2022

                                                     CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI
                                                   and
                                   THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                          C.M.A.Nos.1458 & 1459 of 2022

                  Nirmala                                 .. Appellant in C.M.A.No.1458/2022


                  1.Nirmala
                  2.Chitrarasu (Minor)
                  3.Sriram (Minor)
                  (Minors rep. By their mother and natural
                  guardian viz., Nirmala)
                  4.Sulochana
                  5.Duraikannu                            .. Appellants in C.M.A.No.1459/2022

                                                        Vs.

                  Vairam (died) legal heir Kamaraj
                  (Set exparte in the Trial Court)

                  1.The New India Assurance Co. Ltd.,
                    Motor Claims Third Party Cell,
                    No.45, Moore Street, 5th Floor,
                    Chennai 600 001.

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                                                                      C.M.A. Nos.1458 & 1459 of 2022


                  2.Prabha                                                        .. Respondents in

both the appeals

(Amended as per order dated 19.07.2017 made in M.P.No.1871 of 2016) (Set exparte in the Trial Court)

Common Prayer: These Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the common judgment and decree dated 10.03.2021, made in M.C.O.P. Nos.6234 & 6199 of 2015, on the file of the Chief Judge, (Motor Accident Claims Tribunal), Court of Small Causes, Chennai.

                                            For Appellants   : Mr.K.V.Muthu Visakan

                                            For R1           : Mr.J.Chandran

                                             COMMON JUDGMENT

[Judgment of the Court was delivered by V.M.VELUMANI,J.]

Both the appeals have been filed against the common judgment and

decree dated 10.03.2021, made in M.C.O.P. Nos.6234 & 6199 of 2015, on the

file of the Chief Judge, (Motor Accident Claims Tribunal), Court of Small

Causes, Chennai.

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2.Both the appeals arise out of the same accident and common award,

and hence, disposed of by this common judgment.

3.The appellant in C.M.A.No.1458 of 2022 filed M.C.O.P.No.6234 of

2015 on the file of the Chief Judge, (Motor Accident Claims Tribunal), Court

of Small Causes, Chennai, claiming a sum of Rs.75,00,000/- as compensation

for the injuries sustained by her in the accident that took place on 27.07.2014.

The appellants in C.M.A.No.1459 of 2022 filed M.C.O.P.No.6199 of 2015 on

the file of the Chief Judge, (Motor Accident Claims Tribunal), Court of Small

Causes, Chennai, claiming a sum of Rs.50,00,000/- as compensation for the

death of one Suyambunathan, who died in the same accident.

4.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred only due to rash and negligent

driving by driver of the Car owned by deceased Vairam and directed the 1st

respondent-Insurance Company to pay a sum of Rs.15,98,000/- as

compensation to the appellant in C.M.A.No.1458 of 2022 and Rs.20,10,000/-

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as compensation to the appellants in C.M.A.No.1459 of 2022.

5.Not being satisfied with the amounts awarded by the Tribunal in

M.C.O.P. Nos.6234 & 6199 of 2015, the appellant/appellants have come out

with the present two Civil Miscellaneous Appeals.

6.Though the appellant in C.M.A.No.1458 of 2022 raised grounds

seeking enhancement of amount granted towards medical expenses, at the

time of arguments, the learned counsel appearing for the appellant submitted

that he is not pressing the same. The learned counsel appearing for the

appellant further submitted that in the accident, the appellant sustained severe

head injury and left frontal contusion and spine injury, right pedicle fracture

and lamina fracture C3, fracture C4 left spinous process C6, C7 and Bilateral

rib fracture and right clavicle fracture blunt trauma abdomen grade II liver

laceration and surgery was done and quadriparesis and lung contusion and

multiple injuries all over the body. She has taken treatment at SRMC

Hospital, Porur from 28.07.2014 to 25.08.2014, 21.09.2014 to 29.09.2014,

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24.10.2014 to 27.10.2014 and on 10.10.2019 and 11.10.2019. Due to the

injury in her spinal card, she is not able to walk and sit and she is bedridden.

The appellant has marked the disability certificate as Ex.C1 to prove the 90%

permanent disability sustained by her and proved that appellant suffered

functional disability. The Tribunal ought to have applied multiplier method

for awarding compensation. The learned counsel appearing for the appellant

further contended that at the time of accident, the appellant was aged 37

years, running a Soup Shop and was earning a sum of Rs.15,000/- per month.

The Tribunal erroneously fixed only a meagre sum of Rs.8,000/- per month as

notional income of the appellant and awarded only a sum of Rs.48,000/-

towards loss of income, which is meagre. The amounts awarded by the

Tribunal towards disability, transportation and extra nourishment are all

meagre. The Tribunal failed to award any amount towards damage to clothes,

future medical expenses, loss of amenities and loss of earning power. The

total compensation awarded by the Tribunal is meagre and prayed for

enhancement of the same.

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7.The learned counsel appearing for the appellants in C.M.A.No.1459

of 2022 contended that at the time of accident, the deceased Suyambunathan

was aged 42 years, running a Provisional Store in the name and style

'Chitrarasu Store' at Porur and was earning a sum of Rs.30,000/- per month.

They have marked Exs.P9 to P11 to prove the avocation and income of the

deceased Suyambunathan. The Tribunal without considering the same, has

fixed the meagre sum of Rs.12,000/- per month as notional income of the

deceased and granted 25% enhancement towards future prospects. The

amounts awarded by the Tribunal towards loss of dependency, loss of

consortium, loss of love and affection and funeral expenses are meagre. The

Tribunal failed to award any amount towards loss of expectation of life and

mental agony and prayed for enhancement of the compensation.

8.Per contra, the learned counsel appearing for the 1st respondent-

Insurance Company contended that the Tribunal considering the nature of

injuries sustained by the appellant in C.M.A.No.1458 of 2022 in the accident,

has awarded compensation, which is not meagre. In the absence of any

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documentary evidence to prove the income of the deceased Suyambunathan,

the Tribunal rightly fixed a sum of Rs.12,000/- per month as notional income

of the deceased in C.M.A.No.1459 of 2022. The notional income so fixed by

the Tribunal is not meagre. The Tribunal considering all the materials on

record in proper perspective, has awarded compensation, which are not

meagre. The appellant/appellants in both the appeals have not made out any

case for enhancement of the compensation and prayed for dismissal of both

the appeals.

9.Heard the learned counsel appearing for the appellant/appellants in

both the appeals as well as the 1st respondent-Insurance Company and

perused the entire materials available on record.

C.M.A.No.1458 of 2022

10.From the materials on record, it is seen that in the accident, the

appellant sustained severe head injuries, fractures and multiplier injuries all

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over her body. She has marked the disability certificate as Ex.C1 to prove the

90% permanent disability suffered by her. The appellant has taken treatment

as in-patient at SRMC Hospital, Porur for 48 days in 4 spells viz., from

28.07.2014 to 25.08.2014, 21.09.2014 to 29.09.2014, 24.10.2014 to

27.10.2014 and on 10.10.2019 and 11.10.2019 and marked the discharge

summaries as Exs.P22 to P25. The appellant has also examined one Sumathi

P.W.2, who was her attender and P.W.3 – R.Ravi, Physiotherapist, with whom

she took physiotherapy treatment. P.W.2 caretaker of the appellant deposed

that she was attending the appellant from 7.00 a.m to 7 p.m everyday and was

paid a sum of Rs.7,500/- per month as salary. She further deposed that the

appellant is bedridden due to the injuries sustained in the accident. The

Tribunal failed to consider the oral and documentary evidence let in by the

appellant and erroneously adopted percentage method and granted a sum of

Rs.3,60,000/- towards permanent disability at the rate of Rs.5,000/- per

percentage for 90% disability suffered by the appellant. Considering the

nature of injuries, we are of the opinion that the appellant suffered functional

disability and lost her earning capacity. Hence, she is entitled to

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compensation by adopting multiplier method. The appellant claimed that she

was running Soup Stall and was earning a sum of Rs.15,000/- per month. In

the absence of any documentary evidence to prove her avocation and income,

the Tribunal fixed a sum of Rs.8,000/- per month as notional income of the

appellant, which is not meagre. The appellant was aged 37 years at the time

of accident. As per the judgments of the Hon'ble Apex Court reported in 2009

(2) TNMAC 1 SC Supreme Court [Sarla Verma & others vs. Delhi

Transport Corporation & another] and 2017 (2) TN MAC 609 (SC)

[National Insurance Co. Ltd., Vs. Pranay Sethi and others], the multiplier

applicable is '15' and the appellant is entitled to 40% enhancement towards

future prospects. Hence, by fixing Rs.8,000/- per month as notional income,

granting 40% enhancement towards future prospects and applying multiplier

'15', a sum of Rs.18,14,400/- {Rs.8,000/- + Rs.3,200/- (40% of Rs.8,000/-)] x

12 x 15 x 90%} is awarded towards loss of earning capacity. In view of the

amount granted towards loss of earning capacity by adopting multiplier

method, the amounts awarded by the Tribunal towards permanent disability

and loss of income are set aside. The Tribunal failed to award any amount

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towards attendant charges and future medical expenses. Considering the

nature of injuries suffered, period of treatment taken by the appellant as in-

patient in the Hospital and the evidence of P.W.2 – attender, a sum of

Rs.5,00,000/- is awarded towards attendant charges and future medical

expenses. The amount awarded by the Tribunal towards extra nourishment is

enhanced to Rs.1,00,000/-, as the same is meagre. The Tribunal failed to

award any amount towards damages to cloth. Hence, a sum of Rs.1,000/- is

awarded towards damages to cloth. The amounts awarded by the Tribunal

under other heads are just and reasonable and hence, the same are hereby

confirmed. Thus, the compensation awarded by the Tribunal is modified as

follows:

S. No Description Amount awarded Amount Award by Tribunal awarded by this confirmed or (Rs) Court (Rs) enhanced or granted

1. Loss of dependency - 18,14,400/- Granted

2. Loss of earnings 48,000/- - Set aside

3. Permanent disability 3,60,000/ - Set aside

4. Transport charges 30,000/- 30,000/- Confirmed

5. Extra nourishment 50,000/- 1,00,000/- Enhanced

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6. Attendant charges & - 5,00,000/- Granted loss of future medical expenses

7. Damages to cloth - 1,000/- Granted

8. Pain and sufferings 3,60,000/- 3,60,000/- Confirmed

9. Medical expenses 7,50,000/- 7,50,000/- Confirmed Total 15,98,000/- 35,55,400/- Enhanced by 19,57,400/-

C.M.A.No.1458 of 2022

11.From the materials on record, it is seen that it is the case of the

appellants that at the time of accident, the deceased Suyambunathan was aged

42 years, running a Provisional Store and was earning a sum of Rs.30,000/-

per month. They have marked Exs.P9 to P11 viz., Renewal application form

of Corporation License, Profession Tax Receipt and Pass Book of the

deceased, to prove the same. Having marked documents to prove the

avocation of the deceased, the appellants failed to mark any document to

prove the income of the deceased or examine anyone regarding his business

and income. The Tribunal, observing the same, considering the year of

accident and nature of work done by the deceased, fixed a sum of Rs.12,000/-

per month as notional income of the deceased, which is not meagre. As per

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the Transfer Certificate marked as Ex.P8, the deceased Suyambunathan was

aged 44 years at the time of accident. The Tribunal, following the judgments

of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme

Court [Sarla Verma & others vs. Delhi Transport Corporation & another]

and 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay

Sethi and others], rightly applied multiplier '14' and granted 25%

enhancement towards future prospects. There are 5 dependents of the

deceased. After deducting 1/4th towards personal expenses of the deceased,

the Tribunal has granted a sum of Rs.18,90,000/- as compensation towards

loss of dependency and the same is in order. The Tribunal has awarded a sum

of Rs.30,000/- towards loss of consortium and Rs.75,000/- towards loss of

love and affection and the same are meagre. The amount awarded towards

loss of consortium to the 1st appellant, who is wife of the deceased, is

enhanced to Rs.40,000/- and the amount awarded towards loss of love and

affection to the appellants 2 & 3, who are the children of the deceased and

appellants 4 & 5, who are the parents of the deceased are enhanced to

Rs.1,60,000/-, at the rate of Rs.40,000/- each. The Tribunal failed to award

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any amount towards loss of estate. The appellants are entitled to a sum of

Rs.15,000/- towards loss of estate. The amounts awarded by the Tribunal

under other heads are just and reasonable and hence, the same are hereby

confirmed. Thus, the compensation awarded by the Tribunal is modified as

follows:

S. No Description Amount awarded Amount Award by Tribunal awarded by this confirmed or (Rs) Court (Rs) enhanced or granted

1. Loss of dependency 18,90,000/- 18,90,000/- Confirmed

2. Funeral expenses 15,000/- 15,000/- Confirmed

3. Loss of love and 75,000/ 1,60,000/- Enhanced affection to appellants 2 to 5

4. Loss of consortium to 1st 30,000/- 40,000/- Enhanced appellant

5. Loss of estate - 15,000/- Granted Total 20,10,000/- 21,20,000/- Enhanced by 1,10,000/-

12.In the result,

(i) C.M.A.No.1458 of 2022 is partly allowed and the amount awarded

by the Tribunal at Rs.15,98,000/- is enhanced to Rs.35,55,400/- together with

interest at the rate of 7.5% per annum from the date of petition till the date of

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deposit. The 1st respondent-Insurance Company is directed to deposit the

award amount now determined by this Court, along with interest and costs,

less the amount already deposited, if any, within a period of six weeks from

the date of receipt of a copy of this judgment, to the credit of M.C.O.P.

No.6234 of 2015. On such deposit, the appellant is permitted to withdraw the

award amount, after adjusting the amount, if any, already withdrawn, by filing

necessary applications before the Tribunal. No costs.

(ii).C.M.A.No.1459 of 2022 is partly allowed and the amount awarded

by the Tribunal at Rs.20,10,000/- is enhanced to Rs.21,20,000/- together with

interest at the rate of 7.5% per annum from the date of petition till the date of

deposit. The 1st respondent-Insurance Company is directed to deposit the

award amount now determined by this Court, along with interest and costs,

less the amount already deposited, if any, within a period of six weeks from

the date of receipt of a copy of this judgment, to the credit of M.C.O.P.

No.6199 of 2015. On such deposit, the appellants 1, 4 & 5 are permitted to

withdraw their respective share of the award amount now determined by this

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Court, along with proportionate interest and costs, as per the ratio of

apportionment fixed by the Tribunal, by filing necessary applications before

the Tribunal. The share of the minor appellants 2 and 3 are directed to be

deposited in any one of the Nationalized Bank, till the minors attain majority.

The 1st appellant, mother of the minor appellants 2 and 3 is permitted to

withdraw the accrued interest, once in three months for the welfare of the

minor appellants 2 and 3. No costs.

(V.M.V., J) (S.S., J) 02.08.2022 gsa

To

1.The Chief Judge, (Motor Accident Claims Tribunal), Court of Small Causes, Chennai.

2.The Section Officer, V.R Section, High Court, Madras.

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V.M.VELUMANI,J.

and S.SOUNTHAR,J.

(gsa)

C.M.A.Nos.1458 & 1459 of 2022

02.08.2022

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