Madras High Court
Kasthuri vs Venkidusamy on 14 June, 2022
C.M.A. No.2241 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.2241 of 2021
Kasthuri .. Appellant
Vs.
1.Venkidusamy
(R1 remained exparte before the Tribunal.
Hence, notice to R1 is dispensed with.)
2.The New India Assurance Company Ltd.,
594, Obli Towers, 1st Floor,
D.B.Road, R.S.Puram,
Coimbatore 2. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 09.03.2020, made
in M.C.O.P. No.898 of 2016, on the file of the Presiding Officer, (Motor
Accident Claims Tribunal) Tiruppur.
For Appellant : Mr.M.Lokesh
for M/s.Ma.P.Thangavel
For R2 : Mr.M.Krishnamoorthy
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C.M.A. No.2241 of 2021
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
This appeal has been filed for enhancement of compensation granted by
the award dated 09.03.2020, made in M.C.O.P. No.898 of 2016, on the file of
the Presiding Officer, (Motor Accident Claims Tribunal) Tiruppur.
2.The appellant-claimant filed M.C.O.P. No.898 of 2016, on the file of
the Presiding Officer, (Motor Accident Claims Tribunal) Tiruppur, claiming a
sum of Rs.70,00,000/- as compensation for the injuries sustained by her in the
accident that took place on 14.04.2016.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
driver of the Lorry owned by the 1st respondent and directed the 2nd
respondent-Insurance Company to pay a sum of Rs.25,35,527/- as
compensation to the appellant.
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C.M.A. No.2241 of 2021
4.Not being satisfied with the amounts awarded by the Tribunal in the
award dated 09.03.2020, made in M.C.O.P. No.898 of 2016, the appellant
has come out with the present appeal.
5.The learned counsel appearing for the appellant contended that in the
accident, the appellant sustained fractures in the left leg, which was
amputated and fracture in the left hand, apart from multiple abrasions all over
the body. The Medical Board assessed that the appellant suffered 90%
permanent disability and issued disability certificate to that effect, which was
marked as Ex.C1. At the time of accident, the appellant was working as a
Tailor in Indway Garments, Tiruppur and was earning a sum of Rs.12,000/-
per month. She has examined P.W.3 – Proprietor of the said Garments and
marked Exs.P4 – salary certificate and Ex.P5 – Identity card and proved her
avocation and income. The Tribunal, considering the fact that the appellant
lost 100% of her future earning capacity, ought to have awarded atleast
Rs.3,00,000/- towards loss of permanent disability, excluding the loss of
earning capacity and a sum of Rs.5,00,000/- towards artificial limbs, since the
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C.M.A. No.2241 of 2021
same is to be changed once in two years. The Tribunal without considering the
evidence of P.W.3/employer of the appellant, fixed only a meagre sum of
Rs.7,100/- per month as notional income of the appellant. The amounts
awarded by the Tribunal towards pain and suffering and extra nourishment
are meagre. The Tribunal ought to have awarded a sum of Rs.3,00,000/- each
towards pain and suffering and extra nourishment. The Tribunal has awarded
only a meagre sum of Rs.40,000/- towards attendant charges. The Tribunal
ought to have fixed a sum of Rs.3,000/- per month for a minimum period of
30 years towards attendant charges. The amounts awarded by the Tribunal
under other conventional heads are also meagre and prayed for enhancement
of the compensation.
6.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that P.W.3 did not produce any document
to prove that he is the Proprietor of Indway Garment and the appellant is
working in the said garment. Exs.P4 and P5 are created for the
purpose of the case, claiming compensation from the Insurance Company.
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C.M.A. No.2241 of 2021
The appellant did not file any document to prove her avocation and income.
The Tribunal, in the absence of any documentary evidence to prove the
avocation and income of the appellant, fixed a sum of Rs.7,100/- per month as
notional income, which is not meagre. The compensation awarded by the
Tribunal under different heads are not meagre. The appellant has not made
out any case for enhancement of the compensation and prayed for dismissal of
the appeal.
7.Heard learned counsel appearing for the appellant as well as the 2nd
respondent-Insurance Company and perused the entire materials available on
record.
8.It is the case of the appellant that she was working as a Tailor in
Indway Garments at Tirupur and was earning a sum of Rs.12,000/- per
month. Due to the injuries sustained by her in the accident, her left leg above
knee was amputated and screws were fixed on the left hand. The Medical
Board has certified that the appellant suffered 90% disability and issued
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C.M.A. No.2241 of 2021
Ex.C1 – disability certificate to that effect. Due to the injuries, she lost her
earning capacity and has filed claim petition, claiming a sum of
Rs.70,00,000/- as compensation for the injuries sustained by her in the
accident. To substantiate her avocation and income, she has filed Ex.P4 –
salary certificate and Ex.P5 - Identity Card and examined P.W.3, the
Proprietor of Indway Garments. On the other hand, it is the case of the 2nd
respondent-Insurance Company that the appellant has not proved her
avocation and income, P.W.3 did not produce any document to prove that he
is the Proprietor of Indway Garment and the appellant is working in the said
garment. Exs.P4 and P5 are created for the purpose of the case, claiming
compensation from the Insurance Company. Except avocation and salary of
the appellant mentioned in the letter head paper, no other document was filed
by the appellant to prove the avocation and income.
9.From the materials on record, it is seen that even though P.W.3
alleged to be the Proprietor of Indway Garments, he has not produced any
document to prove the same. Further, there are certain discrepancies in Exs.P4
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C.M.A. No.2241 of 2021
and P5. P.W.3 admitted that he is maintaining salary register of his
employees, but he did not produce the same before the Tribunal to prove that
the appellant also was working in the said Garments and she was paid
Rs.12,000/- per month. The Tribunal rightly did not accept Exs.P4 and P5
and in the absence of any evidence with regard to avocation and income, fixed
a sum of Rs.7,100/- per month as notional income of the appellant. The
accident is of the year 2016. Considering the year of accident and nature of
work done by the appellant, this Court is of the view that the notional monthly
income fixed by the Tribunal is meagre and the same is enhanced to
Rs.9,000/-. The appellant was aged 36 years at the time of accident. The
Tribunal has rightly granted 40% enhancement towards future prospects of
the appellant and applying multiplier '15', awarded compensation towards loss
of income for 90% disability by adopting multiplier method. According to the
appellant, the disability is 100% and she lost her job. The appellant has failed
to prove that before the accident, she was working as a Tailor and hence, she
is not entitled to compensation for 100% loss of earning capacity. Hence,
fixing the notional income of the appellant at Rs.9,000/- per month, granting
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C.M.A. No.2241 of 2021
40% enhancement towards future prospects and applying multiplier '15', the
amount awarded by the Tribunal towards loss of income for 90% disability is
modified to Rs.20,41,200/- {[Rs.9,000/- + Rs.3,600/-(40% of Rs.9,000/-)] x
12 x 15 x 90%}.
10.The appellant has taken treatment as in-patient at KMCH,
Coimbatore for a period of 20 days and her left leg was amputated. During
treatment as in-patient and after discharge, some one should have assisted her
for day-to-day activities. Due to the injuries, she would have spent some
amount for nutrition food. In view of the same, the amount granted by the
Tribunal towards attendant charges and extra nourishment are enhanced to
Rs.50,000/- each. The amount 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 confirmed or
(Rs) this Court (Rs) enhanced or
granted
1. Loss of income 16,10,280/- 20,41,200/- Enhanced
2. Pain and sufferings 1,00,000/- 1,00,000/- Confirmed
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C.M.A. No.2241 of 2021
3. Loss of amenities 1,00,000/- 1,00,000/- Confirmed
4. Extra nourishment 25,000/- 50,000/- Enhanced
5. Attendant charges 40,000/- 50,000/- Enhanced
6. Artificial leg 1,07,340/- 1,07,340/- Confirmed
7. Medical expenses 5,52,907/- 5,52,907/- Confirmed
Total 25,35,527/- 30,01,447/- Enhanced by
Rs.4,65,923/-
rounded off to
30,01,450/-
11.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.25,35,527/- is enhanced to Rs.30,01,450/- together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit. The 2nd respondent-Insurance Company is directed to deposit the
award amount, now determined by this Court, along with interest and costs,
within a period of twelve weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P. No.898 of 2016. On such deposit, the
appellant is permitted to withdraw the award amount, now determined by this
Court, along with proportionate interest and costs, after adjusting the amount,
if any, already withdrawn, by filing necessary applications before the
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C.M.A. No.2241 of 2021
Tribunal. The appellant is directed to pay the necessary court fee on the
enhanced award amount as per the order of this Court dated 30.07.2021 made
in C.M.P.No.10464 of 2020 in C.M.A.SR.61328 of 2020. No costs.
(V.M.V., J) (S.S., J)
14.06.2022
Index : Yes/No
gsa
To
1.The Presiding Officer,
(Motor Accident Claims Tribunal)
Tiruppur.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.2241 of 2021
V.M.VELUMANI,J.
and
S.SOUNTHAR,J.
(gsa)
C.M.A.No.2241 of 2021
14.06.2022
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