Madras High Court
Pandi vs Solamalai Express on 27 January, 2022
CMA No.2728 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Civil Miscellaneous Appeal No.2728 of 2021
Pandi ... Appellant
Vs.
1. Solamalai Express
2. Reliance General Insurance Co. Ltd.
“Reliance House”, 6th Floor,
No.6, Haddows Road,, Chennai 600 006.
3. S.R.M.Transports India (P) Ltd.,
No.3, Veerasamy street,
West Mambalam, Chennai 600 033.
4. ICICI Lombard General Insurance Co. Ltd.,
'Chottabai Centre' II & III Floor,
No.140, Nungambakkam High Road,
Chennai 600 034. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act,
1988, to enhance the amount awarded in MCOP No.7297 of 2015 dated
1/12
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CMA No.2728 of 2021
27.11.2020 on the file of Motor Accident Claims Tribunal, (IV Small Causes
Court), Chennai.
For Appellant : Mr. K.Varadhakamaraj
For Respondents : Mrs.C.Bhuvanasundari, for R2
Mr.Siva Kollappan, for R4
JUDGMENT
Aggrieved by the award of a sum of Rs.19,36,00,000/- as
compensation for the injuries suffered by him in a motor accident that
occurred on 16.04.2015, the claimant is on Appeal seeking enhancement.
2. The factum of the accident and the negligence are not in
dispute, since the Insurance Companies have accepted the award of the
Tribunal. The claimants sought for a compensation of Rs.80,00,000/-,
contending that he has suffered a 100% functional disability, as he could not
carry on his avocation as a driver any longer. He would also seek
compensation under various heads and the Medical expenses that were
incurred by him.
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CMA No.2728 of 2021
3. The claim was resisted by the Insurance Companies namely
respondents 2 and 4, who were the insurers of the two vehicles which had
collided, contending that the other vehicle was responsible for the accident.
They would also term the quantum of compensation claimed as very high.
However, both the Insurance Companies did not choose to let in any
evidence.
4. The Report of the Medical Board was marked as Ex.C1. The
claimant examined himself as P.W.1 and Exhibits P1 to P34 were marked.
5. The Medical Board found that the petitioner has suffered as
60% permanent disability. Rejecting the contention of the petitioner that it
would transform into a 100% functional disability, the Tribunal granted a
compensation of Rs.11,23,200/- adopting the multiplier method for the 60%
disability. The Tribunal also granted the following amounts as compensation
under various heads.
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CMA No.2728 of 2021
Heads Amount (Rs.)
Pain and suffering 25,000/-
Extra Nourishment 20,000/-
Transportation 25,000/-
Damage to Clothes 1,000/-
Attender Charges 30,500/-
Medical Expenses 6,86,542/-
Loss of Amenities 25,000/-
Including the sum of Rs.11,23,200/- awarded for functional disability, the
Tribunal awarded a sum of Rs.19,36,000/- as the total compensation.
6. Mr.K.Varadhakamaraj, learned counsel appearing for the
claimant/appellant would vehemently contend that the Tribunal was not right
in fixing the disability only at 60% for awarding compensation. The learned
counsel would contend that considering the avocation of the claimant,
namely a driver, the Tribunal should have concluded that there was 100%
permanent disability as he cannot carry on his avocation as a driver,
inasmuch as, his left leg has become useless. The learned counsel would
also fault the Tribunal for awarding a paltry sum of Rs.25,000/- towards
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CMA No.2728 of 2021
pain and suffering, having recorded a finding that the appellant was an
inpatient for more than 61 days. The award of Rs.30,500/- for attender
charges as well as Rs.25,000/- for loss of amenities is also termed as very
meagre by the learned counsel for the appellant.
7. Contending contra, Mrs.Bhuvanasundari, learned counsel
appearing for the second respondent/Insurance Company and Mr.Siva
Kollappan, learned counsel appearing for the fourth respondent/Insurance
Company would submit that even though the action of the Tribunal in
adopting multiplier method for 60% permanent disability is not acceptable to
the Insurance Companies, they have chosen to accept the award, since the
award as a whole was reasonable. They would also contend that in the
absence of any proof of his employment and earning, the Tribunal was right
in adopting Rs.12,000/- as monthly income for the claimant.
8. Adverting to the contention of Mr.K.Varadhakamaraj,
regarding non inclusion of future prospects while assessing the
compensation for disability by adopting multiplier method, the learned
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CMA No.2728 of 2021
counsel appearing for the Insurance Companies would submit that future
prospects could be considered only in cases where there is a very serious
injury and the case on hand being a case of both bone fracture may not
attract the concept of future prospects. They would also submit that the
award made under other heads is also reasonable and hence the award of the
Tribunal does not require any modification.
9. I have considered the contentions of the learned counsel on
either side.
10. The Medical Board has assessed the disability at 60%. It is a
case of both bone fracture. The fact that the claimant cannot work as a
driver in future has been recorded by the Tribunal. The employment was not
questioned in fact the employer of the petitioner is the third respondent and
the insurer of the third respondent’s vehicle is the fourth respondent. The
employment of the petitioner as a driver with the third respondent was
almost conceded, though not expressly. Therefore, I do not think the
contention of the counsel for the Insurance Company that there was no proof
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CMA No.2728 of 2021
of employment and as such the action of the Tribunal taking Rs.12,000/- as
the monthly income itself is on the higher side.
11. Once the Tribunal comes to the conclusion that there was a
functional disability and the injured claimant cannot under take his
avocation in future, adoption of multiplier method can be justified. While
adopting multiplier method, the Tribunal should also adopt a reasonable sum
as a monthly income and in appropriate cases add a certain percentage, as
suggested by the Hon’ble Supreme Court in National Insurance Company
Ltd. v. Pranay Sethi, for future prospects. It is admitted that the claimant
cannot continue his avocation as a driver in future. Therefore, there is a
definite loss of earning capacity. Since the Medical Board has assessed the
disability at 60%, the loss of earning capacity can be taken at 60%. We have
to ascertain the monthly income and in order to quantify the loss of earning
capacity.
12. In the light of the evidence that is available and the fact that
the claimant has produced his driving licence also, I am of the opinion that
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CMA No.2728 of 2021
adoption of Rs.12,000/- per month as income for a driver in the year 2015
itself is on the lower side. I am of the opinion that adoption of Rs.15,000/-
per month would be reasonable. I am unable to accept the contention of the
learned counsel for the claimant that the future prospects should be added.
There is no prohibition on adoption of future prospects in injury cases, but
the adoption to be justified should be applied only in cases where it is shown
that the claimant cannot do any other work. In the case on hand, the
Tribunal has recorded a clear finding that the claimant can do some other
work. Therefore, I do not see any reason to adopt future prospects.
13. Accepting the finding of the Tribunal regarding the disability
at 60%, the loss of earning capacity due to the functional disability is
assessed as follows:
Rs.15,000/- x 12 x 13 x 60/100 = 14,04,000/-
It is really disheartening to find that the Tribunal awarded a sum of
Rs.25,000/- towards pain and suffering, where it is proved that the claimant
was inpatient for nearly 61 days and the treatment spanned over a period of
six months. Once it is shown that there was a both bone fracture in one of
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CMA No.2728 of 2021
the legs, it goes without saying, that the claimant would have suffered a
substantial pain and suffering during the period of treatment and thereafter
also. Hence I find that award of a sum of Rs.25,000/- towards pain and
suffering is too meagre and it requires enhancement. Therefore, the award
towards pain and suffering is enhanced to Rs.75,000/-.
14. The Tribunal has awarded attender charges at Rs.500/- per day,
the same in my opinion is very meagre. Therefore, the attender charges is
enhanced to Rs.50,000/-. The award of Rs.25,000/- towards loss of
amenities is enhanced to Rs.50,000/-, considering the nature of the injury
and the fact that the left leg is rendered completely useless because of the
accident. In light of the above, the award of the Tribunal is modified and the
compensation is granted as follows:
S.No. Heads Amount (Rs.)
1 Functional Disability 14,04,000/-
2 Pain and suffering 75,000/-
3 Transportation to Hospital 25,000/-
4 Extra Nourishment 20,000/-
5 Damage to Clothing 1,000/-
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CMA No.2728 of 2021
S.No. Heads Amount (Rs.)
6 Loss of Amenities 50,000/-
7 Attender Charges 50,000/-
8 Medical Expenses 6,86,542/-
Total 23,11,542/-
and the same is rounded off to Rs.23,11,000/-.
15. In view of the above, the appeal is partly allowed. The
enhanced amount is also apportioned between the two Insurance Companies
in the same ratio i.e., at 50% each as fixed by the Tribunal. The enhanced
award will carry interest at 7.5% per annum from the date of petition till
date of deposit. The Insurance Companies are directed to deposit the
enhanced award amount within a period of six (6) weeks from the date of
receipt of a copy of the judgment. On such deposit, the claimant is
permitted to withdraw the entire amount. There shall be no order as to costs
in this appeal.
jv 27.01.2022
Index: Yes/No
Internet: Yes/No
Speaking order/Non speaking order
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CMA No.2728 of 2021
To
1. The IV Judge,
Motor Accident Claims Tribunal,
Small Causes Court, Chennai.
2. The Section Officer,
V.R.Section,
High Court of Madras.
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CMA No.2728 of 2021
R.SUBRAMANIAN, J.
jv
Civil Miscellaneous Appeal No.2728 of 2021
27.01.2022
https://www.mhc.tn.gov.in/judis
