Madras High Court
The New India Assurance Co. Ltd vs B.Midhun Prabhu on 24 November, 2023
Author: M. Dhandapani
Bench: M. Dhandapani
C.M.A.No.345 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.11.2023
CORAM :
THE HONOURABLE MR. JUSTICE M. DHANDAPANI
C.M.A.No.345 of 2020
and
C.M.P.No.2259 of 2020
The New India Assurance Co. Ltd.,
Having its Divisional Office at Calicut,
Shafeer Complex Extension,
Opp. YMCA, Kannur Road,
Kerala State. ... Appellant
Vs.
1.B.Midhun Prabhu
2.V.S.Suresh Babu
3.V.Hameed
[2nd & 3rd respondents remained exparte and
notice dispensed with for them] ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgement and Decree made in
M.A.C.T.O.P.No.338 of 2016 on the file of the Motor Accidents Claims
Tribunal (Special Subordinate Judge Court), Erode, dated 31.10.2018.
For Appellant : Mr.M.Krishnamoorthy
For Respondents : Mr.M.Mariappan [R1]
Exparte [R2 & R3]
1/10
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C.M.A.No.345 of 2020
JUDGEMENT
Questioning the procedure adopted by the Motor Accidents Claims
Tribunal (Special Subordinate Judge Court), Erode, in computing the
quantum of compensation in M.A.C.T.O.P.No.338 of 2016, dated
31.10.2018, the insurance company has filed the above appeal.
2. As per the claim petition, on 07.09.2016 at about 2.30 p.m., the
claimant was riding his motorcycle bearing Regn.No.TN-39-BP-3317
along with his friend Premkumar as pillion rider and when he stopped his
motorcylce near Sathi to Gobi, a lorry bearing Regn.No.KA-9-A-8777
from Gobi to Sathi road, driven by its driver in a rash and negligent
manner, hit against the motorcycle of the claimant, due to which, the
claimant and the pillion rider fell down on the road and the claimant
sustained bone fracture and multiple grievous injuries. For the injuries
suffered by the claimant, the claimant had filed a claim petition claiming
a sum of Rs.7,00,000/- as compensation before the Tribunal in
M.C.O.P.No.338 of 2016.
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3. Before the Tribunal, the claimant examined himself as P.W.1
and marked 15 documents viz., Ex.P.1 to Ex.P.15. No witnesses were
examined nor any documents were marked on the side of the
respondents. The Tribunal has marked the Disability Certificate received
from District Medical Board as Ex.C.1. After adjudication, the Tribunal
by its award dated 31.10.2018 awarded compensation in a sum of
Rs.5,63,800/- with an interest of 7.5% p.a. directing the insurance
company to pay the said compensation. Aggrieved by the same, the
insurance company has preferred the present appeal.
4. The learned counsel appearing for the appellant/insurance
company submitted that, the procedure adopted by the Tribunal for
awarding compensation towards functional disability is contrary to the
ratio laid down by the Apex Court in the case of Raj Kumar Vs. Ajay
Kumar & Anr. reported in 2011 (1) SCC 343. On the sole ground, the
present appeal is filed.
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5. Per contra, the learned counsel appearing for the first
respondent/claimant submitted that, the medical board assessed the
disability at 40% and the Tribunal by arriving at a conclusion that the
disability suffered by the claimant is functional disability and awarded
compensation, which cannot be interfered with and the other heads
awarded by the Tribunal are just and reasonable and the same does not
require any interference. Accordingly, he prays for dismissal of the
appeal.
6. Heard the learned counsel appearing for the appellant as well as
the first respondent and also perused the materials available on record.
7. The factum of the accident is not disputed by the parties and so
also the liability. Therefore, this Court is not entering into the said
aspect. The only grievance of the appellant is with regard to adoption of
multiplier for temporary disability suffered by the claimant. A perusal of
the award reveals that, in order to ascertain the disability suffered by the
claimant, he was referred to the District Medical Board. Ex.C.1 is the
disability certificate with regard to assessment of the medical with regard
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to disability of the claimant, which has been assessed at 30% temporary
disability and 10% temporary disability for his head injury. The Hon'ble
Apex Court has elaborately discussed with regard to ascertainment of
functional disability in the case of Raj Kumar Vs. Ajay Kumar & Anr.
reported in 2011 (1) SCC 343 and the relevant portion of the judgment is
as follows :-
''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
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
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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.''
8. A perusal of the above decision makes it clear that, if the
Tribunal based on evidence arrives at a conclusion that the claimant
cannot be able to continue his avocation after the accident because of the
injuries suffered in the accident, then the Tribunal can pass award in
favour of the claimant by considering the disability suffered by the
claimant as functional disability. In the case on hand, the claimant was a
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student and he was not employed anywhere and the temporary disability
assessed by the medical board at 40% is not functional disability,
however, the claimant has continued his studies and finished his
education. Such being the case, the disability suffered by the claimant is
not functional disability. Hence, the adoption of multiplier method by the
Tribunal in awarding a sum of Rs.4,02,200/- towards disability and loss
of earning power is totally erroneous and the same is liable to be
modified. Therefore, taking a sum of Rs.4,000/- per percentage of
disability and fixing the disability sustained by the first
respondent/claimant at 40%, the compensation towards disability and
loss of earning is reassessed on percentage basis i.e., Rs.4,000/- x 40 =
1,60,000/- and, accordingly, the compensation towards disability and loss
of earning is reduced from Rs.4,02,200/- to a sum of Rs.1,60,000/-.
9. Further, this Court is of the view that the compensation awarded
by the Tribunal under the other heads, viz., loss of income, transport
expenses, extra nourishment, damages for clothes and articles, medical
expenses and pain and sufferings, are just and reasonable and the same
are confirmed.
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10. In the above circumstances, the compensation awarded by the
Tribunal is modified as under :-
S.No. Description Awarded by Awarded by
the Tribunal this Court
(Amount in (Amount in
Rs.) Rs.)
1 Loss of Income 13,300/- 13,300/-
2 Transport expenses 5,000/- 5,000/-
3 Extra nourishment 3,000/- 3,000/-
4 Damages for clothers and 500/- 500/-
articles
5 Medical expenses 89,300/- 89,300/-
6 Pain and suffering 50,000/- 50,000/-
7 Disability and loss of 4,02,200/- 1,60,000/-
earning power (reduced)
Total 5,63,300/- 3,21,100/-
11. Accordingly, the civil miscellaneous appeal is partly allowed
and the impugned award of the Tribunal is modified, reducing the
compensation amount from Rs.5,63,300/- to Rs.3,21,100/-. The
appellant/Insurance Company is directed to deposit the modified award
amount to the credit of M.C.O.P.No.338 of 2016 along with interest at
the rate of 7.5% per annum from the date of claim petition till the date of
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deposit and costs as awarded by the Tribunal, less the amount already
deposited, within a period of four weeks (4) from the date of receipt of a
copy of this judgment. On such deposit being made, the Tribunal is
directed to transfer the said amount directly to the bank account of the
first respondent/claimant through RTGS within a period of two (2) weeks
thereafter. There shall be no order as to costs in the present appeal.
Consequently, the connected miscellaneous petition is closed.
24.11.2023
Index : Yes / No
Speaking order / Non-speaking order
Neutral Citation Case : Yes / No
sp
To
1.The Motor Accidents Claims Tribunal (Special Subordinate Judge
Court), Erode.
2.The Section Officer, V.R.Section, High Court, Madras.
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M.DHANDAPANI, J.,
sp
24.11.2023
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