Madras High Court
V.Veeraraghavan vs C.K.Vijaya Kumar on 6 July, 2023
C.M.A.No.1957 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2023
CORAM:
THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI
C.M.A.No.1957 of 2013
V.Veeraraghavan ... Appellant
vs.
1. C.K.Vijaya Kumar
2. The New India Assurance Co. Ltd.,
Motor Third Party Cell
No.46, Moore Street, “Regina Mansion”,
Chennai – 600 001 ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, to enhance the compensation of Rs.3,47,500/- as
awarded by the lower Court to Rs.12,00,000/-.
For Appellant : Mr.R.Kalai Arasan
For Respondents : Mr.K.Vinod for R2
R1-Not ready in notice
1/20
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JUDGMENT
Not being satisfied with the award passed by the II Judge, Small
Causes Court, Motor Accident Claims Tribunal, Chennai, in the Judgment
and decree passed in M.C.O.P.No.1864 of 2001 dated 16.11.2012, this
Civil Miscellaneous Appeal is filed by the claimant herein for enhancement
of compensation.
2. The claim petition was filed by the claimant under Section 163(A)
and 166 of the Motor Vehicles Act and Rule 3 of M.A.C.T. Rules claiming a
compensation of Rs.12,00,000/- for the injuries sustained by him in a road
accident that occurred on 31.08.2000.
3. The Tribunal, after hearing the arguments of both sides and upon
considering the oral and documentary evidence, has passed the award for
an amount of Rs.3,47,500/- with interest at 7.5% per annum from the date
of numbering of the petition, i.e.11.06.2001 till the date of deposit.
4. Reiterating the grounds of appeal, the learned counsel appearing
for the appellant would strenuously argue that the injured, who was 20
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years old, suffered Grade -III B, compound comminuted fracture both bone
left leg and he was given treatment as inpatient for 173 days. He would
further contend that the monthly salary of the claimant which was fixed by
the Tribunal at Rs.4,500/- per month, is very less. The Doctor assessed
the disability of the the appellant as 75% . But, the Tribunal has fixed the
disability at 25% which is on the lower side. The amount awarded for pain
and sufferings undergone, loss of amenities, attendant charges are also
insufficient.
5. To strengthen his arguments, the learned counsel for the petitioner
referred to the judgment of the Hon'ble Supreme Court in the case of Syed
Sadiq, etc. Vs. Divisional Manager, United India Insurance Co. Ltd.,
reported in 2014 (1) TN MAC 459 (SC), wherein the monthly income of an
injured Vegetable Vendor, aged 24 years, was fixed as Rs.6,500/- for the
accident occurred in the year 2008.
6. Per contra, the learned counsel for the 2nd respondent/insurance
company would vehemently argue that the award was passed in the year
2012. The accident occurred in the year 2000. The doctor who treated the
injured was not examined. The disability has to be assessed only for the
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C.M.A.No.1957 of 2013
whole body. No document was marked to show that the appellant was
running a meat shop. Therefore, he cannot claim that his employment is
affected as he can employ some other person in his place. The notional
income fixed by the Tribunal, for the accident occurred in the year 2000, at
Rs.4,500/- is on the higher side in the given circumstances. If at all the
appellant is not able to do any work, then alone, multiplier can be invoked.
Considering the date of accident and the nature of injury, the award passed
by the Tribunal appears to be reasonable.
7. Heard the rival contentions put forth by the learned counsels of
both sides and perused the entire materials on record.
8. It is the evidence of the appellant/P.W.1 that on 31.08.2000, at
15.15 hours, while he was standing near the center median-G.S.T. Road,
near Hotel Sahar, Guindy, Chennai, a lorry bearing Reg. No.TN-09-D3966
which came from East to West, hit him and eventually, he sustained
grievous injuries, which is not in dispute.
9. It is the evidence of P.W.1 that he was a proprietor of a Pork stall
and was earning Rs.10,000/- per month. To substantiate the said claim, no
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C.M.A.No.1957 of 2013
document was filed. Therefore, the Tribunal has fixed the notional income
at Rs.4,500/- per month and it is taken as such as notional income.
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C.M.A.No.1957 of 2013
10. As regards the future prospects, the Hon'ble Supreme Court has
standardized the details of future prospects for various age group of
persons, to be added with income in National Insurance Co. Ltd. Vs.
Pranay Sethi [reported in (2017) 2 TN MAC 609 (SC), wherein, it has
been held that for the persons who are below 40 years and are self
employed or on a fixed salary, 40% of the income to be added as future
prospects while computing the monthly income.
11. As per the medical records, the age of the claimant was 25 years
at the time of accident. As stated above, the notional income of the
appellant is taken at Rs.4,500/- per month and it is worked out as
Rs.6,300/- (i.e.Rs.4,500/- +40%=Rs.6,300/-).
12. It is seen from Ex.P.2, discharge summary issued by the
Government Hospital, Chennai that the appellant, on account of the
injuries sustained in the accident, was admitted in the above said hospital
on 31.08.2000 and he had taken treatment for 173 days. He suffered
Grade -III B, compound comminuted fracture both bone left leg, for which,
he had undergone surgeries on 31.08.2000, 07.11.2000 and 09.01.2001 in
which, external fixation and skin grafting were done.
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13. It is the evidence of the doctor/P.W.2 that he assessed the
disability of the appellant/claimant as 75%. He has also stated that there is
total contraction of left ankle and the appellant is suffering from equines
deformity and his left heel is not touching the ground while standing and
only front portion of the leg is touching the ground. His left leg below knee
is totally deformed, he can walk only with support of stick, at the time of
walking he is severely limping, he cannot stand continuously for more than
5 minutes, he cannot squat or sit cross-legged and he cannot do any
manual work.
14. Due to the fractures suffered, the appellant now would definitely
find difficult to walk, sit and lift objects. It is pertinent to note that he is
unable to do any manual work.
15. Thus, on account of the accident, the appellant/claimant suffered
Grade -III B, compound comminuted fracture both bone left leg. The doctor
has assessed the disability as 75% which is partial permanent. The
evidence of the appellant himself gives a clear picture about the difficulties
that he has been facing after the accident. P.W.2/Dr.K.J.Mathiazhagan has
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C.M.A.No.1957 of 2013
spoken about the injuries and the difficulties in detail. Therefore, it is made
clear that the appellant cannot earn for his living as he did before. This is a
case where a 25 year old person has met with an accident, due to which,
he is not in a position to work and severely limping. Therefore, no doubt
that he would find it difficult to stand, walk and lift the objects. So, relying
upon the said observations, the disability for the whole body is taken as
30%.
16. In injury cases, under what circumstances the multiplier method
has to be adopted, has been discussed by the Hon'ble Apex in Arvind
Kumar Mishra Vs. New India Assurance Company Limited and
Another reported in (2010) 10 SCC 254 wherein, the appellant, at the time
of accident, was a final year Engineering (Mechanical) student in a reputed
college. He was remarkably a brilliant student having passed all his
semester examinations in distinction. Due to such accident, he suffered
grievous injuries and remained in Coma for about 2 months. His studies got
interrupted as he was moving to different hospitals for surgery and other
treatments. For many months, his condition remained serious. His right
hand was amputated and even seriously affected. These multiple injuries
led to 70% permanent disablement. He rendered incapacitate, and his
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C.M.A.No.1957 of 2013
career in the line of Mechanical Engineering got dashed for ever. He is
now in a physical condition that he requires domestic help throughout his
life. He has been deprived of pecuniary benefits which he could have
reasonably acquired had he not suffered permanent disablement to the
extent of 70% in the accident and the Hon'ble Supreme Court granted
compensation by invoking multiplier method.
17. As regards the quantum, the Hon'ble Supreme Court in Herdeo
Kaur and Others Vs. Rajasthan State Transport Corporation reported
in (1992) 2 SCC 567, has held that in the determination of the quantum of
compensation, the Court must be liberal and not niggardly in as much as in
a free country, law must value life and limb on a generous scale.
18. To summarize the material facts of the case that the appellant
who was a mutton meat seller by profession and 25 years old at the time of
accident, sustained Grade -III B, compound comminuted fracture both
bone left leg in a road accident that had taken place on 31.08.2000 while he
was standing near the center median for crossing the road. A lorry as
mentioned supra which came from east to west, hit him and due to the
impact, he suffered the above said fracture. He was taken to Government
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General Hospital, Chennai and for about 5 ½ months, he was treated as
inpatient and the claim petition was filed only in the year 2001.
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19. It is made clear through the evidence of appellant as well as
Doctor that it would be extremely difficult for the claimant to do any manual
work as he did before.
20. It is also relevant to refer to the observations made by the Hon'ble
Supreme Court in Rajkumar Vs. Ajaykumar and another reported in
(2011) 1 SCC 343 wherein, it has been held that disability refers to any
restriction or lack of ability to perform an activity in the manner considered
normal for a human being. Permanent disability refers to the residuary
incapacity or loss of use of some part of the body, found existing at the
end of the period of treatment and recuperation, after achieving the
maximum bodily improvement or recovery which is likely to remain for the
remainder like of the injured. Temporary disability refers to the incapacity or
loss of use of some part of the body on account of the injury, which will
cease to exist at the end of the period of treatment and recuperation.
Permanent disability can be either partial or total. Partial permanent
disability refers to a person's inability to perform all the duties and bodily
functions that he could perform before the accident, though he is able to
perform some of them and is still able to engage in some gainful activity.
Total permanent disability refers to a person's inability to perform any
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C.M.A.No.1957 of 2013
avocation or employment related activities as a result of the accident. The
permanent disabilities that may arise from motor accident injuries, are of a
much wider range when compared to the physical disabilities which are
enumerated in the persons with disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995.
21. Therefore, based upon the observations made by the Hon'ble
Apex Court in the above mentioned cases and the impact and the effects of
fracture suffered by the appellant, this Court is of the considered view that
invoking of multiplier method for calculating loss of dependency which was
done by the Tribunal cannot be found fault with.
22. As per the medical record/discharge summary/Ex.P.2, his age is
fixed at 25 years. But no proof for date of birth was filed by the appellant
herein. As per the law laid down by the Hon'ble Apex Court in the Sarla
Verma & Others Vs. Delhi Transport Corporation reported in 2009 (2)
TN MAC 1 (SC), the proper multiplicand to be applied for the age group of
persons between 21 to 25 years is 18. Therefore for arriving at the loss of
income, the following formula emerges i.e.Rs.6,300/-x12x18x30% =
Rs.4,08,240/-.
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23. Keeping into consideration the nature of disability and the period
of treatment given, age and avocation, an amount of Rs.10,000/- each is
granted for extra nourishment and for transportation in addition to the
amount already granted (in total Rs.20,000/-). For medical expenses, a
amount of Rs.15,000/- is granted in addition to the amount already granted
by the Tribunal. For proper appreciation of nature of injuries suffered by the
appellant, photo copy of his leg which is marked as Ex.P.5 is enclosed with
this judgment.
24. The appellant is not in a position even to directly walk like a
ordinary person. Therefore, for loss of amenities, an amount of Rs.15,000/-
is granted in addition to the amount already granted and for pain and
sufferings, an amount of Rs.10,000/- is granted in addition to the amount
already granted. Multiplier method is invoked for calculating loss of earning
capacity. Therefore, the amount of Rs.54,000/- granted by the Tribunal
for loss of income during treatment period is set aside.
25. As regards the other heads, the amount awarded by the Tribunal
appears to be reasonable and hence, the same need not be interfered with.
Therefore, the Compensation awarded by the Tribunal is reworked as
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tabulated below:
Sl. Description Amount Amount Award
No. awarded by awarded by this confirmed or
Tribunal Court enhanced or
granted or
reduced
1 Loss of income for Rs.54,000/- ---- Set aside
12 months
2 Transportation Rs.5,000/- Rs.15,000/- Enhanced
3. Extra Nourishment Rs.5,000/- Rs.15,000/- Enhanced
4 Damage to clothes Rs.500/- Rs.500/- Confirmed
5 Medical expenses Rs.5,000/- Rs.20,000/- Enhanced
5 Attender Charges Rs.5,000/- Rs.5,000/-
6 Loss of amenities Rs.10,000/- Rs.25,000/- Enhanced
of life and mental
agony to the
petitioner
7 Pain and Rs.20,000/- Rs.30,000/- Enhanced
Sufferings
8 Loss of earning Rs.2,43,300/- Rs.4,08,240/- Enhanced
power Rs.4,500/-
x12x18x25% (Rs.6,300/-
x12x18 x 30%)
Total Rs.3,47,500/- Rs.5,18,740/- Enhanced
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26. Thus, the compensation awarded by the Tribunal is enhanced
from Rs.3,47,500/- to Rs.5,18,740/- which would carry interest at 7.5% per
annum from the date of numbering of the petition, i.e.11.06.2001 till the
date of deposit.
27. In the result,
(i) The Civil Miscellaneous Appeal is partly allowed. No costs.
(ii) The compensation awarded by the Tribunal is enhanced from
Rs.3,47,500/- to Rs.5,18,740/-
(iii) The 2nd respondent / Insurance Company is directed to deposit
the enhanced compensation amount i.e., Rs.5,18,740/- (less the amount
already deposited if any) together with interest at 7.5% per annum from the
date of numbering of the petition, i.e.11.06.2001 till the date of deposit to
the credit of M.C.O.P.No.1864 of 2001 on the file of the Motor Accident
Claims Tribunal (II Court of Small Causes) Chennai, within a period of eight
weeks from the date of receipt of a copy of this Judgment.
(iv) On such deposit being made, the appellant / claimant is at liberty
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to withdraw the same on filing of cheque petition. The claimant is directed
to pay the Court fee for the enhanced compensation amount, if required.
The Tribunal below shall disburse the enhanced amount upon production of
the certified copy showing proof of payment of Court fee by the claimant.
06.07.2023
Index : Yes/No
Speaking / Non-speaking order
ksa-2
Encls:4
Photo copy of the leg of the appellant/claimant/Ex.P.5
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C.M.A.No.1957 of 2013
Ex.P.5 in M.C.O.P.No.1864 of 2001
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C.M.A.No.1957 of 2013
To:
1. The Motor Accident Claims Tribunal
(II Court of Small Causes), Chennai,
2. The Section Officer,
V.R.Section,
High Court of Madras,
Chennai.
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C.M.A.No.1957 of 2013
R.KALAIMATHI, J.,
ksa-2
C.M.A.No.1957 of 2013
06.07.2023
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