Madras High Court

Oriental Insurance Company Limited vs Chandrakumar (Died) ... 1St on 22 December, 2023

                                                                                     C.M.A. No.1916 of 2021


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED : 22.12.2023

                                                             CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                    C.M.A. No. 1916 of 2021
                                                  and C.M.P. No.10376 of 2021

                     Oriental Insurance Company Limited,
                     Dheen Plaza, State Bank Road,
                     Mayiladuthurai                      ... Appellant / 2nd Respondent

                                                                Vs.

                     1.           Chandrakumar (Died)            ... 1st Respondent/ Petitioner
                     2.           Rameshkumar                    ... 2nd Respondent/ 1st Respondent
                     3.           C. Rathika
                     4.           Minor Rakshitha
                     5.           Thaiyalnayaki                  … LRs of the 1st Respondent

                                  Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and decree dated 17.08.2017
                     passed in M.C.O.P. No. 96 of 2014 on the file of the Additional Sub Judge,
                     Motor Accident Claims Tribunal (Additional Sub Court), Mayiladuthurai.


                                  For Appellant     :       Mr. Elveera Antionette Ravindran
                                  For R1            :       Died
                                  For R2            :       No Appearance
                                  For RR 3 to 5     :       Mr. M. Lokesh



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                                                                                   C.M.A. No.1916 of 2021


                                                         JUDGMENT

This Civil Miscellaneous appeal has been filed by the insurance

company challenging the Judgment and Decree passed in M.C.O.P. No. 96

of 2014, dated 17.08.2017 on the file of the Additional Sub Judge, Motor

Accident Claims Tribunal (Additional Sub Court), Mayiladuthurai.

2. For the sake of convenience, the parties are referred herein

according to their litigative status and rank before the Tribunal.

3. On 26.08.2012 at about 7:00 PM, the claimant was riding a

Bajaj CT 100 two wheeler on the Thirunandriyur to Vaitheswaran Kovil

main road from South to North direction, while he reached near Sandai velli

Kaliyaperumal house, a Tavera car bearing Registration No.TN-50-W-4251

came from the opposite direction, driven by its driver in rash and negligent

manner, hit against the two wheeler of the claimant, thereby causing

grievous injuries to the claimant. A criminal case was also registered

against the driver of the car in Cr.No.269 of 2012 under section 279, 337

and 338 of I.P.C on the file of the Vaitheswaran Kovil Police Station.

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Subsequent to his treatment, the claimant has come forward

with a claim petition seeking compensation for a sum of Rs.10,00,000/-

along with interest under section 166 of Motor Vehicles Act, 1988.

4. The first respondent, who is the owner of the Tavera car

bearing Registration No.TN-50-W-4251 has not contested the claim and

remained ex-parte. The second respondent – insurance company, who is the

insurer of the car has filed a counter and contended that the accident was

taken place due to the negligence on the part of the claimant and also

disputed the age, occupation, income and disability of the claimant. The

insurance company also stated that the driver of the car has no valid driving

licence at the time of occurrence and the compensation claimed under

various heads is on the higher side, hence prayed to dismiss the claim

petition.

5. Before the Tribunal, on the side of the claimant, P.W.1 was

examined and Exs.P.1 to P.10 were marked. On the side of the respondent,

no witnesses were examined and no exhibits were marked.

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6. Based on the evidence placed on record, the Tribunal in point

no.1, has held that the rash and negligence on the part of the driver of the

first respondent's car bearing Registration No.TN-50-W-4251 is responsible

for the accident. In point No.2, the Tribunal has quantified and granted

compensation for a sum of Rs.8,46,850/- along with interest @ 7.5% per

annum from the date of filing of petition till the date of realization. In point

No.3, the Tribunal has fixed the liability on the second respondent –

insurance company to indemnify the first respondent and to pay the

compensation to the claimant.

7. Aggrieved over the award, the insurance company has filed this

appeal challenging the quantum of compensation awarded by the Tribunal.

8. The learned counsel appearing for the insurance company

submitted that the Tribunal has treated the case of the injured as functional

permanent disability and awarded compensation under the head loss of

earning capacity without any evidence, which is not warranted. He further

contended that the first claimant was died subsequent to filing of this appeal,

hence the compensation awarded under the head pain and suffering, extra

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nourishment are not applicable, hence prays to modify the award.

9. Per contra, the learned counsel appearing for the claimants

submitted that the first claimant has sustained grievous injuries at the time

of accident and after filing of this appeal, he died due to the nature of

injuries sustained by him in the occurrence, hence the Tribunal has rightly

awarded compensation based on the multiplier method under the head loss

of income.

10. Heard the submissions made on both sides and perused the

materials placed on record:

11. In this case, to prove the disability, the claimant subjected

himself before the Medical Board examination and the Medical Board has

also assessed his disability as 60%, which is marked in Ex.P.10. The Ex.P.3

to P.5 are the medical records, which shows that the claimant has sustained

fracture on his Right leg femur and also below the knee of the right leg,

which is a crushed injury and he has undergone treatment for the same at

Tiruvarur Medical College and Hospital. The Ex.P.10 also shows that even

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at the time of his examination before the Medical Board for assessing his

disability, the claimant was limping and struggling to walk freely.

Moreover, the evidence of P.W.2 shows that the claimant was driver by

profession and there is no dispute regarding his profession and there is also

ample evidence to show due to his injuries, he could not continued his

earlier avocation, hence the driver, who suffered multiple fracture on the

right leg had incapacitated from doing his avocation. By the Hon'ble Apex

Court in Raj Kumar vs. Ajay Kumar [2011 ACJ 1] has given guidelines as

well as illustration for fixing the disability and granting compensation under

the head loss of earning capacity as follows:

“8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent

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disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).

.........

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 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

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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 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

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differently, the percentage of loss of earning capacity is not 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.”

12. This Court is of the view that it is a fit case to treat the

disability sustained by the claimant as a functional permanent disability,

which results in loss of his earning capacity. The Tribunal has rightly

accepted the percentage of disability of the claimant as 60%, which was

assessed by the Medical Board and awarded compensation of Rs.7,77,600/-

under the head loss of earning capacity. This Court finds no infirmity in the

award of the Tribunal and hereby confirms the same.

13. It is reported that the claimant was died due to the injuries

sustained by him, however, there is no evidence to show that he was died

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only due to the injuries sustained by him at the time of accident and it is also

submitted by the learned counsel appearing for the claimants, that the

compensation awarded under the head pain and suffering and extra

nourishment may be cancelled and this Court is inclined to accept the said

submission and however, as per the judgment of the Hon'ble Apex Court in

Erudhaya Priya vs. State Express Transport Corporation Ltd., reported in

[2020 SSCR 299 : 2020 ACJ 2159] and Jagdish vs. Mohan and others

[(2018) 4 SCC 571], the claimants are entitled for future prospectus, which

was not awarded by the Tribunal, hence considering the age of the deceased

claimant, who was 23 years at the time of occurrence and following the

dictum laid in the judgments cited supra, 40% future prospectus on the loss

of income due to disability is awarded and the same is assessed as follows:

Future prospectus @ (40% of 7,77,600/-) = Rs.3,11,040/-

14. Even though, the claimants have not come forward to file any

appeal for enhancement, and the insurance company herein has challenged

the quantum of compensation, this Court is entitled to consider, whether the

Tribunal has awarded 'Just compensation' to the claimants herein or not.

Hon'ble Apex Court in Anjali and Ors. Vs. Lokendra Rathod and Ors.

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[2023 (1) TNMAC 1 : 2023 ACJ 637] has illustrated 'just and fair'

compensation in paragraph 10, which reads as follows:

“10. The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. MANU/SC/0606/2009 : (2009) 6 SCC 121, this Court has laid down as under:

16...."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.”

15. Accordingly, the award passed by the Tribunal under various

heads are hereby modified as follows:

S. Description Amount Amount Award
No awarded by awarded by confirmed
Tribunal this Court or enhanced
(Rs) (Rs) or reduced
1. Loss of income 7,77,600/- 7,77,600/- Confirmed

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S. Description Amount Amount Award
No awarded by awarded by confirmed
Tribunal this Court or enhanced
(Rs) (Rs) or reduced
2. Pain and sufferings 50,000/- --- Cancelled
3. Extra nourishments 10,000/- --- Cancelled
4. Transportation Charges 5,000/- 5,000/- Confirmed
5. Medical expenses 4,250/- 4,250/- Confirmed
9. Future prospectus @ 40% --- 3,11,040/- Granted
Compensation Awarded 8,46,850/- 10,97,890/- Enhanced

16. In the result, this Civil Miscellaneous Appeal is disposed of and

the compensation of Rs.8,46,850/- awarded by the Tribunal is hereby

enhanced to Rs.10,97,890/- [Rupees Ten Lakhs Ninety Seven Thousand

Eight Hundred and Ninety only] together along with interest at the rate of

7.5% per annum from the date of filing of Claim Petition till the date of

deposit. The appellant -Insurance Company is directed to deposit the

amount awarded by this Court along with interest and costs, less the amount

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

receipt of a copy of this judgment to the credit of M.C.O.P.No.96 of 2014

on the file of the Additional Sub Judge, Motor Accidents Claims Tribunal,

Mayiladuthurai. On such deposit, the claimants, who are the wife, daughter

and mother of the deceased Chandrakumar are permitted to withdraw the