Madras High Court
The Manager vs K.K.Brindha Devi on 10 October, 2022
C.M.A.Nos.1219 and 1324 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.10.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MRS. JUSTICE N. MALA
C.M.A.Nos.1219 and 1324 of 2014
The Manager,
Royal Sundaram Alliance Insurance Co. Ltd.,
Sundaram Towers,
46, Whites Road, Royapetai,
Chennai. ... Appellant
in C.M.A.No.1219 of 2014
K.K.Brindha Devi ... Appellant
in C.M.A.No.1324 of 2014
Vs.
1.K.K.Brindha Devi
2.V.Rathanam
3.T.S.Shanmugam ... Respondents
in C.M.A.No.1219 of 2014
1.V.Rathanam
2.T.S.Shanmugam
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C.M.A.Nos.1219 and 1324 of 2014
3.The Manager,
Royal Sundaram Alliance Insurance Company Ltd.,
Sundaram Towers,
46, Whites Road,
Royapetai,
Chennai. ... Respondents
in C.M.A.No.1324 of 2014
Common Prayer : Civil Miscellaneous Appeals filed under Section 173 of
the Motor Vehicles Act, 1988, against the judgment and decree, dated
19.12.2013, in M.C.O.P.No.47 of 2012 on the file of the Motor Accident
Claims Tribunal, III Additional District Court, Erode at Gobichettipalayam.
For Appellant : Mr.M.B.Raghavan
for M/s.N.Vijayaraghavan
in C.M.A.No.1219 of 2014
Mr.P.Valliappan
in C.M.A.No.1324 of 2014
For R1 : Mr.P.Valliappan
in C.M.A.No.1219 of 2014
For R3 : Mr.M.B.Raghavan
in C.M.A.No.1324 of 2014
R2 & R3 : Set ex parte in Tribunal
in C.M.A.No.1219 of 2014
R1 & R2 : Set ex parte in Tribunal
in C.M.A.No.1324 of 2014
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C.M.A.Nos.1219 and 1324 of 2014
COMMON JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
These two Civil Miscellaneous Appeals arise out of the award of the
Motor Accident Claims Tribunal, III Additional District Court, Erode at
Gobichettipalayam (“the Tribunal” for brevity), dated 19.12.2013, in
M.C.O.P.No.47 of 2012. C.M.A.No.1219 of 2014 is by the Insurance
Company as against the award. C.M.A.No.1324 of 2014 is against the same
award by the claimant, seeking further compensation.
2.The appellant in C.M.A.No.1324 of 2014 is the 1st respondent in
C.M.A.No.1219 of 2014. She is referred to as “claimant” hereinafter.
3.The claimant suffered grievous injury on account of a motor vehicle
accident on 15.10.2011 at Anthiyur Bus Terminal in Central Bus Stand,
Erode. It is the case of the claimant that a Bus belonging to the 3 rd
respondent in C.M.A.No.1219 of 2014 and insured with the appellant in
C.M.A.No.1219 of 2014 hit the claimant on her back, when she was waiting
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C.M.A.Nos.1219 and 1324 of 2014
for the Bus with her mother at Erode Bus Stand. Because of the heavy
impact, the claimant fell on ground and the front left wheel of the Bus ran
over the left hand of the claimant and stopped at the crushing stage of the
claimant's left hand under the wheel. Due to the nonfatal accident, it is the
case of the claimant that her left hand was totally crushed below and above
the elbow, due to the heavy weight of the Bus loaded with few passengers.
The claimant took treatment as an In-Patient from 15.10.2011 at Ganga
Medical Centre and Hospital and was discharged on 15.12.2011. It is her
case that she was undergoing treatment periodically as Out-Patient and she
was also undergoing physiotherapy for a considerable time. The claimant
was 27 years old at the time of the accident and she was employed as
Technology Analyst in a private company and was drawing a salary of
Rs.74,264/- per month. It is also stated that her annual salary was more
than Rs.8,50,000/- in total with all allowances. Therefore, the claimant filed
the claim petition in M.C.O.P.No.47 of 2012 before the Tribunal, claiming a
total compensation of Rs.1,50,00,000/-.
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C.M.A.Nos.1219 and 1324 of 2014
4.Before the Tribunal, the claimant examined herself as P.W.1 and
examined the Doctor as P.W.2. The Doctor (P.W.2) gave Disability
Certificate, after assessing the claimant's disability at 90%. The Tribunal
awarded a sum of Rs.22,000/- for transport to hospital, Rs.8,000/- towards
medical expenses, Rs.75,000/- towards pain and suffering, Rs.75,000/-
towards future medical expenses. A sum of Rs.1,50,000/- was allowed for
loss of prospects of marriage and a sum of Rs.25,000/- was allowed under
the head “Loss of Amenities”. As regards compensation for loss of earning
power, the Tribunal, relying upon the judgment of the Division Bench of this
Court in the case of United India Insurance Company Limited v.
Veluchamy reported in 2005 (1) CTC 38, determined the functional
disability of the claimant at 50% and taking into consideration the income of
the claimant, allowed a sum of Rs.61,20,000/- as compensation by adopting
17 as multiplier. Accordingly, a sum of Rs.64,75,000/- was awarded by the
Tribunal, in all.
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C.M.A.Nos.1219 and 1324 of 2014
5.As against the total compensation of Rs.64,75,000/-, the above
appeals have been preferred, both by the Insurance Company as well as by
the claimant.
6.Learned counsel appearing for the Insurance Company/appellant in
C.M.A.No.1219 of 2014 submitted that the Tribunal awarded the
compensation without considering the admission of the claimant (P.W.1) in
her evidence, that she is continuing in the same employment and drawing
the same salary, even after the accident. The counsel submitted that the
Tribunal ought not to have awarded compensation by adopting multiplier
method as if the functional disability of the claimant is 50%. The counsel
also submitted that the sum awarded towards loss of earning is against the
well settled principles. All the arguments were focused on the point that the
Tribunal has awarded compensation for loss of earning by adopting
multiplier method, ignoring the fact that there was no loss of employment or
income to the claimant due to the accident.
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C.M.A.Nos.1219 and 1324 of 2014
7.On the other hand, learned counsel appearing for the
claimant/appellant in C.M.A.No.1324 of 2014 produced before this Court
the photographs taken immediately after the surgery undergone by the
claimant to join the bones with the help of metal rods and plates. By
drawing the attention of this Court to the chief-examination of the claimant
(P.W.1), the counsel submitted that the claimant (P.W.1) has deposed to the
effect that she is unable to use her left hand as she was using it before the
accident and that she is also experiencing pain in her left shoulder as a result
of the accident.
8.Heard the learned counsel on either side and perused the entire
materials available on record.
9.Though the evidence during the chief-examination of the claimant
(P.W.1) was to the effect that her income after the accident was reduced and
she has suffered 100% physical disability, the evidence during her cross-
examination reads as follows :
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C.M.A.Nos.1219 and 1324 of 2014
“tpgj;J mf;nlhgh; khjk; 2011k; ele;jJ/ v';fs;
epWtdj;jpy; ehd; tpLKiwf;fojk; vGjpf; bfhLj;J tpl;L
te;Js;nsd;/ ,e;j tpgj;jpdhy; vj;jid ehl;fs; tpLKiw
vLj;njd; vd;W fhl;Ltjw;fhf Mtz';fs; vJt[k; jhf;fy;
bra;atpy;iy vd;why; rhpjhd;/ 17/5/2010y; ,Ue;J
,d;iwa njjp tiu mnj fk;gdpapy;jhd; ntiy bra;J
tUfpd;nwd; vd;why; rhpjhd;/”
The Doctor (P.W.2), in his evidence, though states that the movement of the
claimant's left hand below wrist is affected and certified that the physical
disability of the claimant is 90%, during cross-examination, the Doctor
(P.W.2) has admitted that the permanent physical disability, if properly
calculated, would be 22.85%. From the evidence of P.W.2, this Court is
unable to sustain the order of the Tribunal, fixing the functional disability at
50%. From the claimant's admission that she is drawing salary from the
same company and she is continuing in the same employment, this Court is
unable to justify the approach of the Tribunal, fixing compensation towards
loss of income by adopting the multiplier method.
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C.M.A.Nos.1219 and 1324 of 2014
10.The learned counsel appearing for the Insurance Company, apart
from relying upon the judgment of the Division Bench of this Court in the
case of United India Insurance Company Limited v. Veluchamy (supra),
referred to the judgment of the Hon'ble Supreme Court in the case of Raj
Kumar v. Ajay Kumar and others reported in 2011 (1) SCC 343, wherein,
the Hon'ble Supreme Court had an occasion to deal with a similar case,
where, the compensation towards loss of income was determined on the
basis of physical disability. Para Nos.9 and 10 of the said judgment and the
illustrations given in Para Nos.13 and 14 are relevant and hence, they are
extracted as follows :
“9.Therefore, the Tribunal has to first decide whether
there is any permanent disability and if so the extent of such
permanent disability. This means that the tribunal should
consider and decide with reference to the evidence: (i)
whether the disablement is permanent or temporary; (ii) if the
disablement is permanent, whether it is permanent total
disablement or permanent partial disablement, (iii) if the
disablement percentage is expressed with reference to any
specific limb, then the effect of such disablement of the limb
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C.M.A.Nos.1219 and 1324 of 2014
on the functioning of the entire body, that is the permanent
disability suffered by the person. If the Tribunal concludes
that there is no permanent disability then there is no question
of proceeding further and determining the loss of future
earning capacity. But if the Tribunal concludes that there is
permanent disability then it will proceed to ascertain its
extent. After the Tribunal ascertains the actual extent of
permanent disability of the claimant based on the medical
evidence, it has to determine whether such permanent
disability has affected or will affect his earning capacity.
10.Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three steps.
The Tribunal has to first ascertain what activities the claimant
could carry on in spite of the permanent disability and what
he could not do as a result of the permanent ability (this is
also relevant for awarding compensation under the head of
loss of amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the accident,
as also his age. The third step is to find out whether (i) the
claimant is totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent disability,
the claimant could still effectively carry on the activities and
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C.M.A.Nos.1219 and 1324 of 2014
functions, which he was earlier carrying on, or (iii) whether
he was prevented or restricted from discharging his previous
activities and functions, but could carry on some other or
lesser scale of activities and functions so that he continues to
earn or can continue to earn his livelihood. For example, if
the left hand of a claimant is amputated, the permanent
physical or functional disablement may be assessed around
60%. If the claimant was a driver or a carpenter, the actual
loss of earning capacity may virtually be hundred percent, if
he is neither able to drive or do carpentry. On the other hand,
if the claimant was a clerk in government service, the loss of
his left hand may not result in loss of employment and he may
still be continued as a clerk as he could perform his clerical
functions; and in that event the loss of earning capacity will
not be 100% as in the case of a driver or carpenter, nor 60%
which is the actual physical disability, but far less. In fact,
there may not be any need to award any compensation under
the head of `loss of future earnings', if the claimant continues
in government service, though he may be awarded
compensation under the head of loss of amenities as a
consequence of losing his hand. Sometimes the injured
claimant may be continued in service, but may not found
suitable for discharging the duties attached to the post or job
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C.M.A.Nos.1219 and 1324 of 2014
which he was earlier holding, on account of his disability, and
may therefore be shifted to some other suitable but lesser post
with lesser emoluments, in which case there should be a
limited award under the head of loss of future earning
capacity, taking note of the reduced earning capacity. It may
be noted that when compensation is awarded by treating the
loss of future earning capacity as 100% (or even anything
more than 50%), the need to award compensation separately
under the head of loss of amenities or loss of expectation of
life may disappear and as a result, only a token or nominal
amount may have to be awarded under the head of loss of
amenities or loss of expectation of life, as otherwise there may
be a duplication in the award of compensation. Be that as it
may.
...
13.We may now summarise the principles discussed
above:
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with
reference to the whole body of a person, cannot be assumed to
be the percentage of loss of earning capacity. To put it
differently, the percentage of loss of earning capacity is not
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C.M.A.Nos.1219 and 1324 of 2014
the same as the percentage of permanent disability (except in
a few cases, where the Tribunal on the basis of evidence,
concludes that percentage of loss of earning capacity is the
same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who
examined him subsequently to assess the extent of his
permanent disability can give evidence only in regard the
extent of permanent disability. The loss of earning capacity is
something that will have to be assessed by the Tribunal with
reference to the evidence in entirety.
(iv) The same permanent disability may result in
different percentages of loss of earning capacity in different
persons, depending upon the nature of profession, occupation
or job, age, education and other factors.
14.The assessment of loss of future earnings is
explained below with reference to the following illustrations:
Illustration `A': The injured, a workman, was aged 30
years and earning Rs.3000/- per month at the time of
accident. As per Doctor's evidence, the permanent
disability of the limb as a consequence of the injury
was 60% and the consequential permanent disability
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C.M.A.Nos.1219 and 1324 of 2014
to the person was quantified at 30%. The loss of
earning capacity is however assessed by the Tribunal
as 15% on the basis of evidence, because the
claimant is continued in employment, but in a lower
grade. Calculation of compensation will be as
follows:
a) Annual income before the accident : Rs.36,000/-.
b) Loss of future earning per annum (15%
of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference
to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
Illustration `B': The injured was a driver aged 30 years,
earning Rs.3000/- per month. His hand is amputated and his
permanent disability is assessed at 60%. He was terminated
from his job as he could no longer drive. His chances of
getting any other employment was bleak and even if he got
any job, the salary was likely to be a pittance. The Tribunal
therefore assessed his loss of future earning capacity as 75%.
Calculation of compensation will be as follows:
a) Annual income prior to the accident : Rs.36,000/-.
b) Loss of future earning per annum (75%
of the prior annual income) : Rs.27000/-.
c) Multiplier applicable with reference
to age : 17
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C.M.A.Nos.1219 and 1324 of 2014
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/-
Illustration `C': The injured was 25 years and a final year
Engineering student. As a result of the accident, he was in
coma for two months, his right hand was amputated and
vision was affected. The permanent disablement was assessed
as 70%. As the injured was incapacitated to pursue his chosen
career and as he required the assistance of a servant
throughout his life, the loss of future earning capacity was
also assessed as 70%. The calculation of compensation will be
as follows:
a) Minimum annual income he would have
got if had been employed as an Engineer : Rs.60,000/-
b) Loss of future earning per annum (70% : Rs.42000/-
of the expected annual income)
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
[Note : The figures adopted in illustrations (A) and (B) are
hypothetical. The figures in Illustration (C) however are
based on actuals taken from the decision in Arvind Kumar
Mishra (supra)].”
11.Per contra, the learned counsel appearing for the claimant
submitted that the Tribunal has awarded only a sum of Rs.1,50,000/-
towards loss of prospects of marriage, even though the photographs and the
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C.M.A.Nos.1219 and 1324 of 2014
nature of injuries suffered by the claimant would indicate that she is entitled
to more than the amount awarded by the Tribunal. The counsel also
submitted that the Tribunal has not awarded any compensation towards
medical expenditure, even though a sum of Rs.75,000/- was allowed for
future medical expenses. The counsel submitted that the claimant is entitled
to more than the amount awarded by the Tribunal towards pain and
suffering. Relying upon the judgment of the Hon'ble Supreme Court in the
case of Govind Yadav v. New India Insurance Company Limited reported
in 2012 (1) CTC 437, the learned counsel appearing for the claimant
submitted that the claimant is entitled to a sum not less than Rs.3,00,000/-.
12.In the case relied upon by the learned counsel appearing for the
claimant, the Hon'ble Supreme Court has considered the pain and suffering
and trauma caused due to the amputation of limb and a sum of
Rs.1,50,000/- was awarded. In Para No.19 of the said judgment, the
Hon'ble Supreme Court has held as follows:
“19.The compensation awarded by the Tribunal for
pain, suffering and trauma caused due to the amputation of
leg was meager. It is not in dispute that the appellant had
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remained in the hospital for a period of over three months. It
is not possible for the Tribunals and the Courts to make a
precise assessment of the pain and trauma suffered by a
person whose limb is amputated as a result of accident. Even
if the victim of accident gets artificial limb, he will suffer from
different kinds of handicaps and social stigma throughout his
life. Therefore, in all such cases, the Tribunals and the Courts
should make a broad guess for the purpose of fixing the
amount of compensation. Admittedly, at the time of accident,
the appellant was a young man of 24 years. For the remaining
life, he will suffer the trauma of not being able to do his
normal work. Therefore, we feel that ends of justice will be
met by awarding him a sum of Rs.1,50,000/- in lieu of pain,
suffering and trauma caused due to the amputation of leg.”
13.Though the learned counsel appearing for the claimant submitted
that the functional disability of the claimant ought to have been taken as
30%, this Court is unable to find any justification for allowing the functional
disability beyond 20%, particularly having regard to the job, in which, the
claimant is engaged before and after the accident.
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14.After considering the judgment of the Hon'ble Supreme Court in
Raj Kumar's case (supra) and the judgment relied upon by the learned
counsel for the claimant in Govind Yadav's case (supra) and also the
evidence on record, this Court is of the view that the claimant is entitled to a
sum of Rs.5,00,000/- towards loss of prospects of marriage, instead of
Rs.1,50,000/- as awarded by the Tribunal. The claimant is also entitled to a
sum of Rs.5,00,000/-, as she has to employ somebody for her daily routines.
Therefore, this Court is inclined to award a sum of Rs.5,00,000/- towards
loss of amenities, instead of Rs.25,000/- as awarded by the Tribunal. The
claimant is also entitled to a sum of Rs.3,00,000/- towards pain and
suffering, instead of Rs.75,000/- as awarded by the Tribunal. Considering
the fact that, though the claimant could continue in employment, her future
prospects may not be promising and in view of the nature of injuries suffered
by her and the functional disability ascertained by the Doctor who deposed
as P.W.2, this Court is of the view that the claimant is entitled to
compensation for loss of earning power by adopting multiplier method by
calculating her functional disability at 20%. By taking her monthly income
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C.M.A.Nos.1219 and 1324 of 2014
as Rs.60,000/- as arrived at by the Tribunal, the loss of income would be
Rs.24,48,000/- (Rs.60,000 x 12 x 20% x 17).
15.In fine, the award of the Tribunal is modified as follows :
Heads Amount awarded Modified to
by the Tribunal
Pain and suffering Rs.75,000/- Rs.3,00,000/-
Loss of prospects of Rs.1,50,000/- Rs.5,00,000/-
marriage
Loss of amenities Rs.25,000/- Rs.5,00,000/-
Loss of earning power Rs.61,20,000/- Rs.24,48,000/-
Except the above, the amounts awarded by the Tribunal under the other
heads are confirmed. In toto, the award of the Tribunal is reduced from
Rs.64,75,000/- to Rs.38,53,000/- (Rupees Thirty Eight Lakhs and Fifty
Three thousand only).
16.As a result, the appeal by the Insurance Company in
C.M.A.No.1219 of 2014 is partly allowed and the award of the Tribunal is
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C.M.A.Nos.1219 and 1324 of 2014
modified to the extent indicated above, and the appeal by the claimant in
C.M.A.No.1324 of 2014 is dismissed.
17.The Insurance Company/appellant in C.M.A.No.1219 of 2014 is
directed to deposit the modified award amount, i.e., Rs.38,53,000/- (Rupees
Thirty Eight Lakhs and Fifty Three thousand only), which is now quantified
by this Court in these appeals, along with interest at 7.5% per annum from
the date of claim petition till the date of realisation, within a period of eight
weeks from the date of receipt of copy of this judgment, after deducting the
amount already deposited, if any. On such deposit being made, the claimant
is permitted to withdraw the entire amount with interest. No costs.
(S.S.S.R., J.) (N.M., J.)
mkn 10.10.2022
Internet : Yes
Index : Yes / No
To
The III Additional District Judge,
(Motor Accident Claims Tribunal),
Erode at Gobichettipalayam.
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C.M.A.Nos.1219 and 1324 of 2014
S.S. SUNDAR, J.
and
N. MALA, J.
mkn
C.M.A.Nos.1219 & 1324 of 2014
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C.M.A.Nos.1219 and 1324 of 2014
10.10.2022
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