Madras High Court
Palani vs S.Srinivasan on 12 July, 2023
C.M.A Nos.3603 and 3895 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.07.2023
Coram
The Hon'ble Mr. Justice Krishnan Ramasamy
C.M.A Nos.3603 and 3895 of 2019
C.M.A Nos.3603 of 2019
1. Palani ... Appellant in C.M.A.No.3603 of 2019
2. Neelavathyammal ... Appellant in C.M.A.No.3895 of 2019
Vs.
1. S.Srinivasan
2. Divisional Manager,
New India Assurance Co. Ltd.,
Big Street, Thiruvannamalai Town. ... Respondents in both Appeals.
Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicle
Act, 1988, against the judgment and decree, dated 30.10.2010 in M.A.C.T.O.P.
No.647 and 736 of 2006, respectively on the file of the Motor Accident Claims
Tribunal (Additional Sub Judge, Thiruvannamalai).
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C.M.A Nos.3603 and 3895 of 2019
For Appellants in both Appeals. : Mr.A.Subadra
For Respondent – 1 : Mr.M.Krishnamurthy
For Respondent – 2 : Mr.R.Sivakumar
COMMON JUDGMENT
Not being satisfied with the quantum of compensation awarded by the
learned Additional Sub Judge, Motor Accidents Claims Tribunal,
Thiruvannamalai (hereinafter, referred to as 'the Tribunal') in and by a common
award dated 30.10.2010 in M.A.C.T.O.P. No.647 and 736 of 2006, claimants
have filed the appeals in C.M.A.Nos. 3603 and 3895 of 2019, seeking
enhancement of the compensation.
2. Since both the Appeals arise out of the same accident, they are
disposed of by way of this Common Judgment.
3. It is the case of the claimants that on 09.12.2005, at about 7.00
hours, when the claimants (both the appellants in C.M.A.No.3603 and 3895 of
2019) along with others traveled as a Coolie in the Minidoor Tempo, bearing
Registration No. TN 22 AF 8573, belonging to the first respondent/owner
insured with the second respondent/Insurance Company and while the Tempo
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was nearing Samikannu House at Melpalanandal Village, driver of the auto
drove the vehicle in a rash and negligent manner, due to which, the vehicle got
capsized, and the said accident, both the claimants and others sustained injuries.
4. For the injuries sustained by the claimant Palani, he filed
M.C.O.P.No.647 of 2006 before the Tribunal claiming a sum of Rs.15,00,000/-
as compensation. The Tribunal, on appreciation of evidence, has awarded a sum
of Rs.2,39,000/- with interest at 7.5% p.a. from the date of claim till the date of
deposit. The break up details of the compensation amount are as follows:-
Permanent disability
(95% x Rs.2,000/-) : Rs.1,90,000/-
Loss of Income during treatment : Rs. 9,000/-
Transportation to Hospital : Rs. 5,000/-
Extra-Nourishment : Rs. 5,000/-
Attender Charges : Rs. 5,000/-
Pain and sufferings : Rs. 25,000/-
__________
Total :Rs.2,39,000/-
__________
5. Similarly, for the injuries sustained by the claimant,
Mrs.Neelavathyammal, claim petition in M.C.O.P.No.736 of 2006 was filed
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C.M.A Nos.3603 and 3895 of 2019
seeking compensation of a sum of Rs.1,00,000/-, as against which, a sum of
Rs.89,000/- was awarded by the Tribunal together with interest at 7.5% p.a.
from the date of claim till the date of deposit. The break up details of the
compensation amount are as follows:-
Partial disability : Rs.70,000
Loss of Income during treatment: Rs. 3,000
Transportation to Hospital : Rs. 2,000
Extra-Nourishment : Rs. 2,000
Attender Charges : Rs. 2,000
Pain and sufferings : Rs. 10,000
___________
Total : Rs.89.000/-
___________
6. Not being satisfied with the quantum of compensations, the
claimants have filed present two appeals, as stated supra.
7. Since both the Appeals have been filed questioning only the quantum
of compensations awarded by the Tribunal, it is not necessary for this Court to
traverse into other aspects of the award.
8. C.M.A.No.3603 of 2019 filed by claimant, Palani
Insofar as this appeal is concerned, it is the contention of the learned
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C.M.A Nos.3603 and 3895 of 2019
counsel for the claimant that, on account of the accident, the claimant sustained
amputation of left hand upto shoulder, fracture in the right ankle, loss of
hearing power in the left ear and took treatment as in-patient from 10.12.2005
to 31.01.2006, (i.e. nearly 1 ½ months) at Chennai General Hospital. The
Doctor, P.W.7, though assessed the disability sustained by the claimant as
95%, however, due to amputation sustained in the left hand upto shoulder, the
claimant is unable to do any work on his own, with his one hand, and also lost
his Coolie work. Therefore, it is contended by the learned counsel that
permanent disability of the injured claimant has to be taken at 100%. The
learned counsel further submitted that the Tribunal has not applied multiplier
method while determining compensation towards Permanent Disability, which
has resulted in awarding an inadequate sum of Rs.1,90,000/-. The learned
counsel would also submit that the compensation awarded by the Tribunal
under other heads also not adequate, and sought for proper enhancement of the
compensation amount.
9. Per contra, the learned counsel for the second respondent/Insurance
Company drawn the attention of this Court to Employee's Compensation Act,
Schedule I Part II, wherein, list of Injuries deemed to result in permanent partial
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C.M.A Nos.3603 and 3895 of 2019
diablement were described, and in the said list, at Serial No.4, for Loss of a
hand or of the thumb and four fingers of one hand or amputation from
(11.43cms.) below tip of olecranon, the percentage of loss of earning capacity
is shown as 60% disability. Therefore, it is submitted that even for amputation
on the hand, the disability was fixed as 60%, whereas, in the present case, the
claimant has suffered amputation of left hand upto shoulder only, for which, the
Doctor/PW.7 assessed the disability at 95%, and the Tribunal also based on the
same, awarded Rs.1,90,000/- which is on the higher side. Therefore, he would
submit that the disability may be taken as 60% and to award compensation
accordingly.
C.M.A.No.3895 of 2019 filed by claimant, Neelavathyammal
10. As far as this appeal is concerned, it is the contention of the learned
counsel for the claimant that, on account of the accident, the claimant sustained
compound grade III Fracture in the distal radium at the right forearm, and
Doctor, P.W.8, who examined the claimant, assessed the disability as 35%,
however, the Tribunal, while determining compensation towards Partial
Disability, has fixed only a sum of Rs.2,000/- towards per percentage of
disability and awarded a sum of Rs.70,000/- under the said head, which is on
the lower side. The learned counsel further submitted that due to aforesaid
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C.M.A Nos.3603 and 3895 of 2019
fracture sustained by the claimant, though she was admitted as in-patient from
10.12.2005 to 10.01.2006 at Chennai General Hospital, i.e. for one month,
pursuant to such disability, she was not able to go for coolie work for another
period of two months, but, the Tribunal failed to take into consideration the said
aspect and awarded compensation towards Loss of Income only for one month.
Therefore, learned counsel prayed to award compensation towards Loss of
Income for another period of two months. The learned counsel also sought for
enhancement of the compensation under other heads as well.
11. The learned counsel for the second respondent/Insurance Company
would submit that the compensation awarded by the Tribunal under the head
Partial Disability is just and reasonable, as also the award passed under other
heads and the same need not be disturbed at this juncture.
12. I have given due consideration to the submissions made by the
learned counsel for the appellants and the learned counsel for the second
respondent/Insurance Company.
13. The only issue that has been raised in both the appeals is with
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C.M.A Nos.3603 and 3895 of 2019
regard to determination of compensation towards the 'Disability Aspect'.
C.MA.No.3603 of 2019 :-
14. It is case of the appellant in C.MA.No.3603 of 2019 that due to the
accident, he sustained amputation of left hand upto shoulder, owing to which,
he could not work as Coolie any more (as his left hand is amputated) and hence,
the Tribunal ought to have fixed the disability at 100% and not 95% and to
award compensation accordingly. Whereas, it is the contention of the second
respondent/Insurance Company that, as per Schedule I Part II of Employee's
Compensation Act even for imputation on the hand, percentage of disability is
fixed only at 60%, and therefore, disability taken by the Tribunal at 95% is on
the higher side and requires appropriate modification. However, this Court is
not inclined to accept the contention of the learned counsel for the second
respondent/Insurance Company for the reason that, though as per Schedule I
Part II of Employee's Compensation Act, wherein, for the Loss of a hand or of
the thumb and four fingers of one hand or amputation from (11.43cms.) below
tip of olecranon, percentage of loss of earning capacity is mentioned as 60%
disability, this Court has to look into other aspects of the functional disability of
the injured, as due to the accident, it is seen that the claimant's left hand got
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C.M.A Nos.3603 and 3895 of 2019
amputated upto shoulder, due to which, he was unable to do any work on his
own, and he also lost his Coolie work, as no employer would engage a person
for any other Job, especially, for Coolie Work (as in the present case, the
claimant is working as Coolie) if his/her arm is either amputated or
nonfunctional. Therefore, this Court has to consider the fact that the claimant
has to suffer with his disability life long, as cannot do any work on his own with
one hand, nor he would be able to find employment anywhere. Therefore, this
Court is inclined to take functional disability of the injured as 80%.
14.1 It is seen from the award that the Tribunal has fixed a sum of
Rs.2000/- towards per percentage of disability and awarded a sum of
Rs.1,90,000/- towards Permanent Disability. As rightly submitted by the
learned counsel appearing for the appellant the Tribunal has failed to apply the
multiplier method while determining the compensation towards Permanent
Disability and proceeded to determine compensation by taking disability at 95%
and fixing Rs.2,000/- towards per percentage of disability, which is not a proper
method. Therefore, this Court is setting aside the award passed by the Tribunal
with respect to Permanent Disability and is proceeding to determine
compensation towards Functional Disability based on multiplier method.
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C.M.A Nos.3603 and 3895 of 2019
14.2. At the time of the accident, i.e. on 09.12.2005, the injured
claimant was aged about 27 years and was doing Coolie Work, therefore,
definitely, he would have earned not less than Rs.6,000/- per month. Hence, this
Court, in the absence of income proof produced by the claimant, deems it fit to
fix Rs.6,000/- as notional monthly income of the claimant and following the
Constitution Bench's judgment in the case of National Insurance Company
Limited Vs. Pranay Sethi reported in 2017-13 SCALE 12, 40% of the notional
income is added as future prospects. Thus, if 40 % is added towards future
prospects, and multiplier '17' is adopted (since the claimant is aged 27 years, at
the time of the accident), and fixing 80% towards functional disability, the Loss
of Income due to Functional Disability works out to Rs.13,70,880/-, in the
manner, as calculated hereunder:-
Rs.6,000/-(monthly income) + 40% (future prospects)
(Rs.6,000/ + Rs.2,400) = Rs.8,400/-
Rs.8,400 x 12 x 17 x 80% = Rs.13,70,880/-
14.3 Insofar as the award passed by the Tribunal under all other heads
is concerned, the same stands confirmed.
14.4 Thus, the award passed by the Tribunal at Rs.2,39,000/- is
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modified and enhanced to Rs.14,19,880/-, which is rounded off to
Rs.14,20,000/- with interest at the rate of 7.5% p.a. from the date of petition till
the date of deposit.
C.M.A.No.3895 of 2019 :-
15. The injured claimant, by name Neelavathymmal was aged about
48 years at the time of the accident and she was doing Coolie work by earning a
monthly income of Rs.3,000/- and the Tribunal, taking into consideration of the
Doctor's opinion, who assessed the claimant disability as 35%, proceeded to
award compensation towards Partial Disability at Rs.70,000/- by fixing only a
sum of Rs.2,000/- towards per percentage of disability and since this Court feels
the said sum of Rs.2,000/- is on the lower side, is inclined to enhance the same
to a sum of Rs.3,000/-. Therefore, the compensation awarded by the Tribunal
towards Partial Disability at Rs.70,000/- (35% x Rs.2,000/-) is modified and
enhanced to Rs.1,05,000/- (35% x Rs.3,000/-).
15.1 Insofar as the compensation awarded by the Tribunal towards
Loss of Income during the treatment period is concerned, since it is submitted
by the learned counsel for the appellant/claimant that due to aforesaid fracture
sustained by the claimant, she undergone treatment as in-patient for a period of
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C.M.A Nos.3603 and 3895 of 2019
one month and pursuant to such disability, she was not able to go for coolie
work for another period of two months and prayed to award compensation
towards Loss of Income for three months, this Court is inclined to award
compensation of Rs.9,000/- towards Loss of Income for three months (Three
months Rs.3,000/- = Rs.9,000/-) Except the modification made under two
heads, viz., i) Partial Disability and ii) Loss of Income, the compensation
amounts awarded by the Tribunal under other heads remain unaltered as the
same appear to be just and reasonable.
15.2 Thus, the award passed by the Tribunal at Rs.89,000/- is modified
and enhanced to Rs.1,30,000/-.
16. In the result, both the Civil Miscellaneous Appeals are partly
allowed on the following terms;-
(i) C.M.A.Nos.3603 of 2019 filed by
appellant/claimant, Palani, is partly allowed and the total
compensation of Rs.2,39,000/- awarded by the Tribunal
is modified and enhanced to Rs.14,20,000/-.
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C.M.A Nos.3603 and 3895 of 2019
(ii) C.M.A.Nos.3895 of 2019 filed by
appellant/claimant, Neelavathymmal, is also partly
allowed and the total compensation of Rs.89,000/-
awarded by the Tribunal is modified and enhanced to
Rs.1,30,000/-.
(iii) The Insurance Company is directed to deposit
the entire amount awarded by this Court with respect to
both the Appeals with interest and costs within a period of
eight weeks from the date of receipt of a copy of this
judgment, after deducting the amount already deposited,
if any. The interest awarded by the Tribunal at the rate of
7.5% per annum remains unaltered. On such deposit
made by the Insurance Company, the Tribunal is directed
to transfer the award amount to the appellants/claimants'
respective bank account directly, by way of RTGS within
a period of three weeks from the deposit being made or
from date of furnishing the RTGS particulars by the
appellants/claimants, whichever is later. On such deposit,
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C.M.A Nos.3603 and 3895 of 2019
the appellants are permitted to withdraw the entire award
amount along with interes by making necessary
application before the Tribunal.
(iv) Since both the Appeals have been filed with a delay of
346 days and 343 days respectively, the appellants/claimants
shall forgo the interest for the delay period, as already stated by
this Court while condoning the delay in filing the Appeals, vide
order, dated 13.09.2019, in M.P.No.1 of 2012, in CMA(Sr)
No.30493 of 2012 and order, dated 01.10.2019, in M.P.No.1 of
2011, in CMA (Sr) No.30502 of 2012 respectively.
(v) However, there shall be no order as to costs.
12.07.2023
Index :yes/no
Speaking Order/Non speaking Order
sd
To
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C.M.A Nos.3603 and 3895 of 2019
1. The Learned Additional Sub Judge,
Motor Accident Claims Tribunal,
Thiruvannamalai.
Krishnan Ramasamy, J.,
sd
C.M.A Nos.3603 and 3895 of 2019
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C.M.A Nos.3603 and 3895 of 2019
12.07.2023
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