Madras High Court
K.Sundar @ Krish Sundar vs Nalini Wilson on 23 November, 2023
Author: R.Subramanian
Bench: R.Subramanian
C.M.A.No.2297 of 2021
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
C.M.A.No.2297 of 2021
K.Sundar @ Krish Sundar ...Appellant
Vs.
1.Nalini Wilson
2.ICICI Lombard General Insurance Company Ltd.,
No.140, Chotabai Centre, II Floor,
Nungambakkam High Road,
Chennai - 600 034. ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated 02.07.2020 made
in MACTOP.No.6025 of 2014 on the file of the Motor Accident Claims
Tribunal, II-Court of Small Causes, Chennai.
For Appellant : Mr.A.G.F.Terry Chella Raja
For Respondents : Mr.B.Sivakolappan for R2
R1 - Notice - Dispensed with
1/14
https://www.mhc.tn.gov.in/judis
C.M.A.No.2297 of 2021
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The injured claimant is the appellant. Challenge is to the award of
a sum of Rs.5,07,453/- as compensation for the injuries suffered by him in
the motor accident that occurred on 19.03.2014. According to the claimant,
when he was travelling in the car bearing Registration No.TN-06-Q-1000
belonging to his employer from Chennai to Bangalore near Burgur, a Cow
crossed the road, due to which, the driver who drove the vehicle in a rash
and negligent manner applied sudden break, resulting in the car capsizing
and dashing against the rock on the road side. As a result of the accident,
the claimant suffered multiple injuries and was rendered paraplegic.
Contending that the rash and negligent driving of the driver of the car was
cause for the accident, the claimants sought for a compensation of
Rs.50,00,000/-.
2.The quantum was sought to be supported by the pleading that
the claimant, who holds Diploma in Hotel Management and Catering was
working as a Marketing Head with a Resort in Mahabalipuram and was
earning a sum of Rs.45,000/- per month. According to the claimant, he had
https://www.mhc.tn.gov.in/judis
lost his job and he cannot do any other work and therefore, the functional
disability as a result of the accident was assessed at 100%.
3.The Insurance Company resisted the claim contending that the
accident did not occur in the manner as suggested by the claimant. The age,
occupation and monthly income of the claimant were denied and the
claimant was put to strict proof of the same. It was also contended that the
disability claimed is not 100% and therefore, the claimant would not be
entitled to compensation on the basis of the multiplier method, since there is
no functional disability.
4.On the above pleading, the Tribunal framed the necessary issues.
At trial, before the Tribunal, P.W.1 to P.W.4 were examined on the side of
the petitioner and Exs.P1 to P34 were marked. There was no evidence let in
on the side of the respondent / Insurance Company. The 1st respondent /
owner of the vehicle remained absent. In support of the disability, the
claimant relied upon Ex.P-34, disability certificate issued by the Peripheral
Hospital. The Tribunal, refused to take the same into account and required
the petitioner to appear before the Medical Board. Since the petitioner did
https://www.mhc.tn.gov.in/judis
not co-operate and did not chose to appear before the Medical Board, the
Tribunal rejected Ex.P-34, the disability certificate issued by the Peripheral
Hospital and assessed the disability at 40%.
5.The Tribunal also found that there was no functional disability
and therefore, the claimant would not be entitled to compensation on the
basis of the multiplier method. The Tribunal granted a sum of Rs.1,20,000/-
as compensation for the disability on the ground that the claimant had
suffered disability of 40%, it calculated at Rs.3,000/- per percentage of
disability and arrived the total compensation for disability at Rs.1,20,000/-.
The Tribunal also awarded a compensation under the other heads as
follows:-
S.No. Description Amount
1 Pain and Suffering Rs.50,000/-
2 Extra nourishment Rs.25,000/-
3 Transport to Hospital Rs.25,000/-
4 Damages to clothes Rs.1,000/-
5 Attender charges Rs.3,400/-
6 Medical Expenses Rs.1,33,053/-
7 Future Medical Expenses Rs.25,000/-
8 Loss of Education Rs.75,000/-
9 Loss of Amenities Rs.50,000/-
Thus, the total compensation awarded by the Tribunal worked out to
https://www.mhc.tn.gov.in/judis
Rs.5,07,453/-, which was rounded off to Rs.5,07,500/-. Aggrieved, the
claimant is on appeal.
6.Heard Mr.A.G.F.Terry Chella Raja, learned counsel appearing
for the appellant and Mr.B.Sivakolappan, learned counsel appearing for the
2nd respondent / Insurance Company. The 1st respondent though served, is
not appearing either in person or through counsel, duly instructed.
7.Mr.A.G.F.Terry Chella Raja, learned counsel for the appellant
would vehemently contend that the Tribunal's assessment of the disability is
skewed and it is intemperate consequence of the claimant not complying
with the direction of the Tribunal to appear before the Medical Board as
suggested by it. The learned counsel would point out that even the
Peripheral Hospital is an authorized Institution and it has certified the
disability at 90%. The Tribunal was not right in rejecting the same and fixing
the disability at 40% and concluding that there was no functional disability.
8.During the pendency of this appeal, a Division Bench of this
Court dated 24.06.2022, required the petitioner to appear before the Medical
https://www.mhc.tn.gov.in/judis
Board. Since there was some difficulty, we had passed an order on
10.02.2023, requiring the petitioner to appear before the Medical Board on
13.02.2023. The petitioner has accordingly, appeared before the Medical
Board constituted by the Dean of Rajiv Gandhi Government General
Hospital, Chennai - 3. The Medical Board, which consists of the Dean,
Senior Civil Surgeon, Physical Medicine, Senior Civil Surgeon, Neuro
Surgery and Senior Civil Surgeon, Orthopaedics had examined the petitioner
and had given its opinion wherein, the Medical Board has opined that the
petitioner has suffered Traumatic Quadriplegia. Locomotor disability due to
the said condition is assessed at 90%. Clinical and Physical assessment
would show that there is a profound level of disability in social and adaptive
functioning at 100%. As per Stedman's Medical Dictionary, Traumatic
Quadriplegia means paralysis of all the four limbs. This is a condition,
which would render person 100% immobile and dependent on external
support even for his day to day activities. Relying upon the report of the
Medial Board, Mr.Terry Chella Raja would vehemently contend that the
Tribunal's assessment of disability and grant of compensation on percentage
basis is wholly unacceptable and the Tribunal fell in error in rejecting the
certificate issued by the Peripheral Hospital, which is now found to be in
https://www.mhc.tn.gov.in/judis
tune with the opinion of the Medical Board.
9.On the negligence, the Tribunal concluded that the accident
occurred due to the negligent driving of the driver of the car based on the
First Information Report, Ex.P1 and the evidence of the petitioner himself,
who was a passenger in the car, which met with the accident. The appellant,
Insurance Company has not chosen to let in any evidence on the negligence
aspect so as to enable us to interfere with the findings of the Tribunal on the
question of negligence.
10.Mr.A.G.F.Terry Chella Raja, learned counsel would further
argue that the Tribunal has granted only Rs.3,400/- towards attender
charges, which is abysmally low, considering the fact that the petitioner
would be requiring an attender through out his life.
11.Mr.B.Sivakolappan, learned counsel for the Insurance
Company would however, submit that there is no proof for income and claim
based on Ex.P33, the salary slip cannot be believed. He would also point
out that the claimant has not chosen to produce any bank statement or any
https://www.mhc.tn.gov.in/judis
other evidence in support of the salary slip. The salary slip, Ex.P33 relates
to the month of April, 2010. The accident occurred in 2014 and except the
said salary slip, no other document has been filed to show the income of the
injured. The claimant in order to prove his salary or income is expected to
produce at least some documentary evidence in support of the salary slip. In
the absence of such supporting document, Mr.Sivakolappan would submit
that, we cannot safely go by Ex.P33 to fix the monthly income. We have
considered the rival submissions.
12.On a perusal of the report of the Medical Board that has been
placed before us pursuant to the reference made by this Court, it is clear that
the Tribunal's finding regarding quantum of disability will have to be
necessarily set aside. As rightly argued by the learned counsel for the
appellant, the finding on disability appears to be a intemperate out burst
because of the attitude of the claimant for not appearing before the Medical
Board as suggested by the Tribunal. We are unable to resist observing that
the Tribunal should not be so emotional and be vindictive against the parties,
who normally act according to the advise of their learned counsel. Personal
emotions or anger against the counsel or a party should not be reflected in
https://www.mhc.tn.gov.in/judis
the judgments of the Tribunals.
13.If we are to take the Medical Board's opinion as the guiding
factor on the injuries and on the physical assessment of atleast three experts
that have been made available to us, we will have to necessarily conclude
that the functional disability is 100% because a 90% Quadriplegic is
definitely confined to a wheel chair and he cannot move about without the
help of others. We therefore, conclude that the functional disability is 100%.
14.Once the functional disability is arrived at 100%, we will have
to fix the quantum of compensation. As rightly argued by the learned
counsel for the Insurance Company, Ex.P33 cannot form basis for the
income. At the same time, we cannot also ignore the fact that there is
evidence to the effect that the petitioner has a Diploma in Hotel Management
and Catering. It is also seen that he has obtained a Diploma in Computer
Office Management. It is also seen from the report in Times of India dated
1st May, 2010 that the petitioner was working with a Resort in
Mahabalipuram, which is a hub of tourist activity in Tamil Nadu. We
therefore, assume a monthly income of Rs.20,000/-. Since the petitioner was
https://www.mhc.tn.gov.in/judis
aged about 42 years at the time of the accident, we have to take future
prospects at 25%. Then, the monthly income would be Rs.25,000/- and the
multiplier applicable is 14. Therefore, the compensation for disability would
be Rs.25,000/- x 12 x 14 = Rs.48,00,000/-.
15.The next head, on which, the Tribunal has awarded very low
compensation is attender charges. Once we find that the petitioner has
suffered 100% disability, he has to have an attendant through out his life
time. Therefore, the attender charges must be fixed on the expectation of
life. The Hon'ble Supreme Court in Kavita Vs. Deepak & Others reported
in CDJ 2012 SC 564 has held that the attender charges must be fixed on the
basis of the nature of injury and the life expectancy. While doing so, the
Hon'ble Supreme Court observed as follows:-
"21. In light of the decision in Raj Kumar V. Ajay
Kumar (supra), the Tribunal and High Court erred in failing
to award compensation under the heads of loss of amenities
and loss of expectation of life. Relying on the decision in
Nizam's Institute of Medical Sciences V. Prasanth S.Dhananka
(supra) and assuming the claimant's life expectancy to be 55
years, we deem it appropriate to award attendant charges at
https://www.mhc.tn.gov.in/judis
the rate of Rs.2,000/- per month and physiotherapy expenses
at the rate of Rs.3,000/- per month. With regard to the head
of physical and mental pains the amount is enhanced to
Rs.3,00,000/- and another Rs.3,00,000/- is awarded under the
heads of loss of amenities and loss of life expectancy."
16.The accident in the said case took place in 2004 and the
Hon'ble Supreme Court had observed that monthly attender charges would
be Rs.2,000/-. Since the accident in the case on hand, has occurred in 2014,
ten years thereafter, we would be justified in assuming the monthly attender
charges at Rs.5,000/-. If we are to apply the multiplier of 14, the attender
charges would be Rs.5,000/- x 12 x 14 = Rs.8,40,000/-. The compensation
granted by the Tribunal on the other heads does not required interference at
our hands. Thus, the total compensation would be Rs.54,24,053/-, which is
rounded off to Rs.54,24,000/-.
17.In fine, this Civil Miscellaneous Appeal is allowed, the award
of the Tribunal is set aside. There will be an award of a sum of
https://www.mhc.tn.gov.in/judis
Rs.54,24,000/- with interest at 7.5% per annum from the date of filing of the
petition before the Tribunal i.e., 03.09.2014 till date of payment. The
amount, if any paid, pursuant to the award of the Tribunal will be deducted
and the Insurance Company will have twelve weeks time to deposit the
balance amount to the credit of the Original Petition before the Tribunal. On
such deposit, the injured claimant will be entitled to withdraw the same.
The claimant will pay the Court fee payable. Since the appeal was
necessitated because of the claimant's refusal to appear before the Medical
Board, we direct the parties to bear their own costs.
(R.S.M., J.) (N.S., J.)
23.11.2023
kkn
Internet:Yes
Index:No
Speaking
Nuetral Citation :No
To:-
The Motor Accident Claims Tribunal,
https://www.mhc.tn.gov.in/judis
II-Court of Small Causes,
Chennai.
R.SUBRAMANIAN, J.
and
https://www.mhc.tn.gov.in/judis
N.SENTHILKUMAR, J.
KKN
23.11.2023
https://www.mhc.tn.gov.in/judis
