Madras High Court

K. Sellakumar vs A. Madhankumar on 20 October, 2022

                                                                       C.M.A.No.2551 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 20.10.2022

                                                     CORAM

                                     THE HONOURABLE Ms.JUSTICE P.T.ASHA

                                               C.M.A.No.2551 of 2014


                     K. Sellakumar                                        .. Appellant

                                                        -Vs.-
                     1. A. Madhankumar
                     2. Soundararaja Pandiyan
                     3. The New India Assurance Company Limited,
                        No.674, Periyakulam Road,
                        Theni – 625 531                                   .. Respondents



                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, against the judgment and Award of the Motor Accident
                     Claims Tribunal (Special Sub Court), Erode in M.C.O.P.No.160 of 2013
                     dated 11.03.2014.


                                    For Appellant         : Mr.S.Kaithamalai Kumaran
                                    For Respondents 1 & 2 : Served-No Appearance
                                    For Respondent-3      : Mr.J.Chandran




https://www.mhc.tn.gov.in/judis
                                                                                C.M.A.No.2551 of 2014

                                                          JUDGMENT

Seeking enhancement of the compensation granted by the Motor

Accident Claims Tribunal (Special Subordinate Court), Erode in

M.C.O.P.No.160 of 2013, the petitioner has filed the above appeal.

2. The parties are referred to in the same ranking as before the

Tribunal. The facts in brief, which are necessary for considering the case of

the petitioner, are as follows:

The petitioner on 06.05.2012, at about 12.00 noon was riding his two

wheeler bearing Registration No.TN-33-AQ-3704 on the Chithode to Erode

Road. At that time, a lorry bearing Registration No.TAL-4293 hit the

petitioner, as a result of which, the petitioner had sustained injuries all over

the body. The accident had occurred only on account of the rash and

negligent driving by the first respondent, who was driving the second

respondent's lorry. The third respondent is the insurer of the offending

vehicle. The petitioner had claimed a compensation of a sum of

Rs.20,00,000/-. He would state that on account of the accident, he had

suffered grievous injuries.

https://www.mhc.tn.gov.in/judis C.M.A.No.2551 of 2014

3. The first and second respondents remained ex-parte and it was the

third respondent-Insurance Company which had filed its counter. The

Insurance Company had countered the claim petition by contending that the

petitioner had also contributed to the accident, by suddenly crossing to the

left side. Therefore, the liability has to be fastened on the first respondent-

driver. They had further contended that the petition is bad for non-joinder

of the owner and the insurer of the two wheeler. The insurance Company

has further contended that the petitioner has driven the vehicle on the ill-

fated day without a proper driving licence, which is clear from a perusal of

the motor vehicles inspector's report. They had also put the petitioner to

strict proof of his age, income and occupation.

4. The Tribunal below on considering the evidence on record had

come to the conclusion that the accident had occurred only on account of

the rash and negligent driving of the first respondent. Though the third

respondent through witnesses R.W1 and R.W2 had attempted to contradict

the statement regarding the negligence on the part of the lorry driver, they

had not succeeded in dislodging the same. As regards the quantum of

https://www.mhc.tn.gov.in/judis C.M.A.No.2551 of 2014

compensation, the Tribunal has awarded a total sum of Rs.6,42,207/- as

compensation. Challenging the same, the petitioner is before this Court.

5. The learned counsel appearing for the petitioner would submit

that the Tribunal has committed a grave error in calculating compensation

under the head of disability by not adopting a multiplier method. He would

submit that the injuries sustained by the petitioner would clearly show that

the accident has resulted in a partial permanent disability, which has

affected his earning capacity. He would draw the attention of the Court to

Ex.P4-wound certificate and Ex.P15-Discharge summary to show that the

petitioner was an inpatient for over 2 months and had suffered injuries to his

abdomen, crush injury to left forearm and fracture on his hip. Therefore, he

would submit that the Tribunal ought to have calculated the compensation

by adopting a multiplier method particularly when under Ex.P22-Disability

Certificate, the Tribunal has assessed the disability at 65%. He would

further submit that though Ex.P14-Medical Bills had been filed to prove the

medical expenses, the Tribunal has failed to give credit to the sum of

Rs.1,17,400/-, and therefore, this omission has to be rectified. That apart,

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though the petitioner had been an inpatient for over 2 months, the Tribunal

had not granted any compensation under the head of attender charges.

6. Per contra, Mr. J.Chandran, learned counsel for the third

respondent-Insurance Company would submit that the compensation has

been rightly arrived at by the Tribunal. The injuries sustained are only

partial permanent ones, which has in no way hindered the day-today

activities of the petitioner. Therefore, the adoption of the percentage method

is correct. He would therefore submit that the Award does not require any

modification.

7. Heard the learned counsels on either side and perused the

materials available on record.

8. A perusal of Ex.P4-Wound certificate would indicate that the

petitioner had been admitted on 06.05.2012 at C.K.Hospital. He has been

discharged from the said hospital only on 05.07.2012. The petitioner has

sustained the following injuries:

https://www.mhc.tn.gov.in/judis C.M.A.No.2551 of 2014

1. Anterior abdomen – open injury with prolapse intestines

2. Multiple tyre marks over anterior asd wall and back with contusion and hematoma.

3. Swelling, deformity, tenderness over left hand crush injury left forearm and wrist.

4. Deformity left side hip.

It is seen that the he has undergone the following procedures:

1. Wound Debridement \ Excision of Devitalised tissue, laparatomy, lavage closure.

2. Flap cover anterior abdominal wall with teflon Double layers mesh with excison Necrotic tissues.

3. Split skin graft to raw area pelvic region left fore arm and hand.

4. Right pedicled radial artory flap with skin graft.

5. Flap division with SSG to right fore arm.

K-Wire fixation 4th MC and PP Little finger left hand A perusal of Ex.P22-Disability Certificate would indicate that there has

been a malunion of the hip bones which had got fractured in the accident,

as a result of which, the petitioner is finding it very difficult to walk and

climb the stairs. That apart, he has undergone a radial artery flap skin graft

teflon procedure, under which process, skin from thigh was removed for the

grafting purpose and the Doctor has assessed the disability at 65%. The

https://www.mhc.tn.gov.in/judis C.M.A.No.2551 of 2014

nature of the injuries, the procedures undergone and the disability certificate

issued by P.W3-Doctor would clearly indicate that the injuries sustained by

the petitioner has definitely reduced his earning capacity and there is a

slight functional disability as well. Therefore, the Tribunal ought to have

calculated compensation under the head of loss of earning capacity by

adopting the multiplier method. Although P.W3-Doctor has assessed the

disability at 65%, this Court fixes the functional disability is fixed at 30%.

Therefore, the compensation under the head of disability would be

Rs.3,24,000/- [5,000 x 12 x 18 x 30%]. From a perusal of Ex.P14-Medical

Bills, it is also seen that a sum of Rs.1,17,400/- has been omitted by the

Tribunal. The Tribunal has rejected the bills constituting the above amount

on the ground that the same relates to consultant fee receipts, which has to

be necessarily taken into account. Therefore, the amount under the head of

medical expenses is enhanced from a sum of Rs.3,59,707/- to a sum of

Rs.4,77,107/-. Considering the fact that the compensation for disability

granted under the multiplier method, the amount under the head of loss of

income and loss of earning capacity is set aside. The petitioner has been an

inpatient for over 2 months but no amounts under the head of attender

https://www.mhc.tn.gov.in/judis C.M.A.No.2551 of 2014

charges has been given. Therefore, a sum of Rs.15,000/- is granted under

this head. Therefore, the total compensation is enhanced to a sum of

Rs.9,12,107/-. Accordingly, the Compensation awarded by the Tribunal is

reworked as below:

Heads Amount Awarded by the Amount Awarded by this Tribunal in Rs. Court in Rs.

                            Loss of Income                            31,500                            -
                            Disability                              1,30,000                     3,24,000
                            Pain and Suffering                        75,000                      75,000
                            Extra Nourishment                         10,000                      10,000
                            Damages for clothes                        1,000                       1,000
                            Transport Expenses                        10,000                      10,000
                            Medical Expenses                        3,59,707                     4,77,107
                            Attender Charges                                  -                   15,000
                            Loss of earning Power                     25,000                            -
                            Total                                   6,42,207                     9,12,107