Madras High Court
Gurumoorthy vs Kamalakannan on 29 November, 2023
Author: N.Seshasayee
Bench: N.Seshasayee
C.M.A No.2442 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.11.2023
CORAM
MR.JUSTICE N.SESHASAYEE
C.M.A. No.2442 of 2023
Gurumoorthy ... Appellant
Vs.
1.Kamalakannan
2.The Royal Sundaram Allianz Gen. Ins. Co. Ltd.,
No.45, 46, Whites Road
Chennai - 14
Now running at Motor III Party Claims Office
No.1, Subramaniam Building, 2nd Floor
Club House Road, Anna Salai
Chennai - 2 ... Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, to substantially enhance the quantum of compensation as
granted under the judgment and decree dated 13.04.2023 in MCOP
No.412 of 2016 on the file of Motor Accident Claims Tribunal (Special
Sub Judge II, Court of Small Causes), Chennai.
For Appellant : Mr.K.Sivakumar
https://www.mhc.tn.gov.in/judis
1/7
C.M.A No.2442 of 2023
For Respondents : Mr.G.Vasudevan for R2
JUDGMENT
In a road accident that took place on 03.05.2015, the appellant herein
suffered injuries to his left femur when a car bearing Registration No.TN-
11 J-6654 belonging to the first respondent and insured with the second
respondent dashed against the motorcycle which the appellant was riding
at that relevant time. In the accident, the appellant suffered two fractures,
one to the left femur, and another fracture in the shaft of the same bone.
He was hospitalised for 32 days. For the injuries he had suffered, the
appellant had moved the Tribunal with MCOP No.412 of 2016, and the
Tribunal had fixed the compensation at Rs.2,27,100/-, and after
deducting 10% towards contributory negligence, it awarded a total sum
of Rs.2,07,400/- to the victim. Aggrieved by the perceived inadequacy of
the award, the claimant has preferred this appeal.
2. The learned counsel for the appellant submitted that the appellant was
a cook attached to the canteen in the Atomic Centre at Kalpakkam, and
was stated to be earning not less than Rs.15,000/- per month at the
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relevant time when the accident was taken place. Now owing to the
accident, he could not stand for long hours and hence, he could not go for
his job. He required the court to treat the 30% disability that was assessed
by the Medical Board as functional disability. He also added that the
Tribunal had fixed the notional income of the appellant at Rs.9,500/-, and
that it is at a lower end, requires the enhancement of the same. He also
submitted that the compensation awarded under non-pecuniary heads by
the Tribunal are also unrealistically low.
3. The learned counsel for the respondent contended that there is no proof
either about the avocation of the claimant or to suggest his monthly
income and he submitted that the approach of the Tribunal is just, fair
and reasonable.
4. The Tribunal was constrained to fix notional income essentially only in
the absence of any material to suggest the correct income. When a victim
of accident belongs to an un-organised sector and also does not belong to
any salaried class, it is inescapable that the income cannot be assessed
with precision. So far as the nature of avocation is concerned, in the
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absence of proof to the contrary, the statement made by the claimant has
to be believed.
5. The appellant/victim claims to be a cook and since the injuries suffered
are to his lower limbs, it would necessarily create certain level of
inconvenience to his avocation, as he has to stand for a considerable
length of time. Therefore, this court, ceased to treat the disability suffered
by the appellant as functional disability. While the Medical Board, by
Ext.C1 has determined the permanent disability of the victim at 30%, this
court deems it appropriate to limit it to 20%.
6. Turning to the income, it would only be reasonable to expect a cook to
make at least 12,000/- rupees in 2015. Now the compensation is
reckoned at [Rs.12,000/- + 25% towards future loss of earning power]
and the proper multiplier is 13. The value of loss of earning power is
determined at Rs.4,68,000/- [Rs.12,000/- +25% x 12 x 13 x 20%]. The
Tribunal has awarded Rs.9,600/- towards attender charges and this needs
revision. Accordingly, the same is fixed at Rs.15,000/-.
7. Since the claimant did not have any valid and effective driving licence
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at the time of accident, the Tribunal has apportioned 10% of negligence
to the victim. This portion of the Tribunal's award is retained. In all other
respects, the award of the Tribunal is just and reasonable. The revised
compensation is as below:
Sl. No. Heads of compensation Amount
1. Loss of earning capacity Rs.4,68,000/-
(12,000 + 25% x 12 x 13 x
20/100)
2. Pain and suffering Rs 35,000/-
3. Transportation Rs. 4,000/-
4. Extra Nourishment Rs. 10,000/-
5. Attender charges Rs. 15,000/-
6. Loss of earning Rs. 28,500/-
7. Loss of amenities Rs. 20,000/-
Total Rs.5,80,500/-
90% of compensation Rs.5,22,450/-
8. In conclusion, the appeal is allowed in part. The compensation
awarded by the Tribunal is enhanced from Rs.2,04,400/- to Rs.5,22,450/-
The second respondent/insurance company had already deposited the
sum awarded by the Tribunal and it is now directed to deposit the
differential sum with interest at the rate of 7.5% per annum within a
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period of six weeks from the date of receipt of a copy of this judgment.
No costs.
29.11.2023
Asr
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
The Motor Accident Claims Tribunal
(Special Sub Judge II, Court of Small Causes), Chennai.
N.SESHASAYEE, J.
Asr
https://www.mhc.tn.gov.in/judis
Dated : 29.11.2023
https://www.mhc.tn.gov.in/judis
