Madras High Court

D.Munivel vs A.K.Premalatha on 9 September, 2022

                                                                                  CMA.No.3487 of 2013


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 09.09.2022

                                                       CORAM

                                    THE HONOURABLE MS. JUSTICE P.T.ASHA

                                               CMA.No.3487 of 2013
                                                       and
                                              M.P.Nos.1, 2 & 3 of 2013


                     D.Munivel
                                                          ... Appellant/ Petitioner
                                                         Vs.
                     1.A.K.Premalatha

                     2.ICICI Lombard General Insurance Co. Ltd.,
                       Now the 2nd respondent having office at
                       No.140, Nungambakkam High road,
                       II and III - Floor,Chottabai Center, Nungambakkam,
                       Chennai - 34.
                                                             ... Respondents / Respondents




                     PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act,
                     against the Judgment and Decree made in MCOP No.3856 of 2009 dated
                     21.07.2012 on the file of the IV Small Causes Court Chennai/ Motor
                     Accident Claims Tribunal Chennai.




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https://www.mhc.tn.gov.in/judis
                                                                                   CMA.No.3487 of 2013


                                        For Petitioner   : Mr.K.R.Ponnusamy
                                       For Respondent : M/s. R.Srividhya [R.2] vide order
                                                          dated 24.01.2019.
                                                          Ex parte -[R.1]




                                                         JUDGEMENT

The petitioner before the Tribunal has filed the above Civil

Miscellaneous Appeal seeking an enhancement of the award passed in

MCOP No.3856 of 2009 by the Motor Accident Claims Tribunal, IV Court

of Small Causes, Chennai. The brief facts are as follows and the parties are

referred to in the same ranking as before the Tribunal.

2. The petitioner had sustained injuries in a road accident on

14.09.2009 for which he had filed the above claim petition seeking

compensation of a sum of Rs.15,00,000/-. The petitioner had sustained

severe head injuries, fracture of right leg, loss of teeth, Facial injuries and

multiple fractures and injuries over the body. It is his case that he is

employed as a painter and earning a monthly income of Rs.7,500/-.

https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013

3. The 1st respondent/owner of the offending vehicle remained ex

parte and it was the 2nd respondent/ insurance company which had contested

the claim. The 2nd respondent filed a counter inter alia denying the

allegations contained in the claim petition. They had also questioned the

compensation claimed as being on the higher side. That apart, they had

stated that the petitioner who was driving the motor cycle bearing

registration No.TN 22 AX 2239 was responsible for the accident and not the

car belonging to the 1st respondent, insured with the 2nd respondent bearing

Registration No.TN 09 AU 3379.

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

that the accident had occurred only on account of the negligence of the

driver of the 1st respondent’s vehicle. With reference to the quantum of

compensation, the Tribunal had taken into account the fact that the

petitioner had been hospitalized and undergone surgeries in 3 spells. The

first being from 14.09.2009 to 23.11.2009, the second from 08.01.2010 to

27.01.2010 and the last from 22.12.2010 to 11.01.20211. The accident had

caused disability and disfigurement to the claimant/appellant.

https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013

5. The Tribunal had taken into account the disability certificate issued

by P.W.2 and P.W.3 under Ex.P.11 and Ex.P.15 respectively and assessed

the disability at 35%. The discharge summaries showing the period of

treatment had been marked as Ex.P.1 to Ex.P.3. Ultimately, the learned

Judge had awarded a sum of Rs.5,71,400/-. The amount under the head of

permanent disability was arrived at Rs.3,21,300/- by fixing a notional

income of Rs.4,500/- per month and assessing the disability at 35% and by

adopting a multiplier of '17'. Aggrieved by the award, the petitioner is

before this Court.

6. Mr.K.R.Ponnusamy, learned counsel appearing for the petitioner

would take this Court through the discharge summaries Ex.P.1 and Ex.P.3

to show the nature of injuries and the surgeries that the petitioner had

undergone. The learned counsel would also refer to the evidence of P.W.3

who had issued the disability certificate with reference to the injuries

sustained by the petitioner on his ankle. P.W.3 had assessed the disability at

50%. P.W.2 on the other hand had assessed the disability on account of the

head injuries which also was assessed at 50%. Therefore, the learned

https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013

counsel would submit that the Tribunal ought to have taken the entire 50 %

which has been assessed by P.W.3 and taken at least 20% towards disability

on account of the head injury. He would further submit that despite the 3

spells of long hospitalization, the Tribunal has not considered giving an

enhanced amount towards pain and sufferings, Transportation to hospital,

Extra nourishment etc.

7. Per contra, M/s. R.Srividhya, learned counsel appearing on behalf

of the insurance company would submit that considering the year of the

accident, the Tribunal below has rightly taken into account the disability

suffered, the injuries sustained and also the amount of income to arrive at

the compensation and therefore, there is no necessity to re-assess the same.

8. Heard both the counsels.

9. A perusal of Ex.P.1 to Ex.P.3 and a perusal of Ex.P.7, photos

would clearly show that the petitioner's ankle has become deformed. The

petitioner admittedly was a painter by profession which involves long hours

of standing, squatting etc. Considering the injuries sustained by him and the

https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013

report given in the disability certificate it is clearly evident that the

petitioner cannot continue his avocation as before and there is definitely a

loss of earning capacity. The Tribunal ought to have assessed the disability

at 45% and not 35%. This disability is a permanent one, therefore, the

Tribunal has rightly adopted a multiplier method. The Tribunal has taken an

income of Rs.4,500/- even according to the petitioner he has been earning a

monthly income of Rs.7,500/- as a painter which appears to be slightly on

the higher side and therefore, this Court adopts a sum of Rs.6,500/- as the

monthly income. Therefore, the compensation towards disability to the

ankle would be Rs.6,500 x 12 x 17 x 45% = Rs.5,96,700/-. Ex.P.11

disability certificate would also show that the petitioner had sustained a

disability on account of the head injury. The same though not having

seriously affected the earning capacity has definitely reduced the

petitioner’s reflexes. Therefore, the disability can be compensated by

adopting a percentage method at the rate of Rs.2,000/- per percentage.

Therefore, loss on account of permanent disability due to head injury would

be 20 x Rs.2,000/- = Rs.40,000/-. Therefore, the total amount due under the

head of loss on account of permanent disability would be Rs.6,36,700/-. As

already discussed the petitioner had to undergo 3 long spells of

https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013

hospitalization for which he has been awarded a sum of Rs.50,000/- towards

the pain and sufferings which appears to be reasonable. However, he has

only been awarded Rs.5,000/- and Rs.7,000/- towards Transport to hospital

and extra nourishment respectively. This is enhanced to a sum of

Rs.10,000/- and Rs.20,000/- respectively. Under all other heads the award

remain un-altered. The award is therefore modified to the aforesaid extent as

tabulated herein below:-

                      S.No Description                    Amount          Amount          Award confirmed
                                                          awarded      by awarded      by or enhanced or
                                                          Tribunal        this Court      granted      or
                                                          (Rs)            (Rs)            reduced
                      1.          Loss of income          27,000/-        27,000/-       Confirmed
                      2.          Transport to Hospital   5,000/-         10,000/-       Enhanced
                      3.          Extra Nourishment       7,000/-         20,000/-       Enhanced
                      4.          Damage to Clothing      1,000/-         1,000/-        Confirmed
                      5.          Medical Expenses        1,60,100/-      1,60,100/-     Confirmed
                      6.          pain and sufferings     50,000/-        50,000/-       Confirmed
                      7.          Permanent Disability    3,21,300/-      6,36,700       Enhanced
                                  TOTAL                   5,71,400/-      9,04,800/-     enhanced         by
                                                                                         Rs.3,33,400/-

10. Therefore, the Civil Miscellaneous Appeal is allowed and the

award of the Tribunal be and hereby is enhanced to a sum of Rs.9,04,800/-

from Rs.5,71,400/- together with interest @ 7.5 % per annum from the date

of petition till the date of deposit. In all other respects the award of the

https://www.mhc.tn.gov.in/judis CMA.No.3487 of 2013

Tribunal is confirmed. The 2nd respondent/insurance company is directed to

deposit the said amount (Rs.9,04,800 /-) to the credit of MCOP No.3856 of

2009 on the file of the Motor Accidents Claims Tribunal, IV Small Causes

Court, Chennai together with interest @ 7.5% per annum from the date of

claim petition till the date of deposit and costs as awarded by the Tribunal,

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

the date of receipt of a copy of this Judgement. On such deposit being made,