Madras High Court
Reliance General Insurance ... vs V.Nithya on 8 September, 2023
C.M.A.Nos.2588 & 2936 of 2022
THE HIGH COURT OF JUD ICATURE AT MADRAS
DATED: 08.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.Nos.2588 & 2936 of 2022
and
C.M.P.Nos.20091 of 2022 & 19437 of 2023
C.M.A.No.2588 of 2022
Reliance General Insurance Company Ltd.,
Reliance House, R.O.Legal Department,
No.6, 6th Floor, Haddows Road,
Nungambakkam, Chennai - 600 006. ...Appellant
Vs.
1.V.Nithya
2.J.Arun ...Respondents
Prayer: Civil Miscellaneous Appeals filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree dated 06.04.2022 passed in
MCOP.No.6351 of 2015 on the file of the Motor Accident Claims Tribunal,
IV-Court of Small Causes, Chennai.
For Appellant : Mr.P.Suresh Srinivasan
For Respondents :Mr.K.Varadha Kamaraj for R1
R2-served- No appearance
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2588 & 2936 of 2022
C.M.A.No.2936 of 2022
V.Nithya ...Appellant
Vs.
1..J.Arun
2.Reliance General Insurance Company Ltd.,
Reliance House, R.O.Legal Department,
No.6, 6th Floor, Haddows Road,
Nungambakkam, Chennai - 600 006. ...Respondents
Prayer: Civil Miscellaneous Appeals filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree dated 06.04.2022 passed in
MCOP.No.6351 of 2015 on the file of the Motor Accident Claims Tribunal,
IV-Court of Small Causes, Chennai.
For Appellant : Mr.K.Varadha Kamaraj
For Respondents : Mr.P.Suresh Srinivasan
R1-served- No appearance
COMMON JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
Both these appeals arise out of MCOP.No.6351 of 2015. The
claim petition was lodged by the injured in a motor accident that occurred on
13.07.2015.
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C.M.A.Nos.2588 & 2936 of 2022
2.According to the claimant, while she was standing on the extreme
left side of the GST road at about 5.30 hours, a Car bearing registration
No.TN-31-E-4353 was waiting behind a Bus bearing registration No.TN-01-
N-5801. A Eicher Van bearing registration No.TN-69-AM-8263 driven by its
driver in a rash and negligent manner dashed against the Car from behind. As
a result of the impact, the Car hit the claimant resulting in grevious injuries.
As a result of the injuries the left leg of the claimant was amputated above the
knee and the right femur bone as well as the patella were fractured. The
claimant, who was working as Housekeeper in a Company became almost
immobile. Claiming that the disability caused has resulted in total loss of
earning capacity, the claimant sought for a compensation of Rs.50,00,000/-.
The quantum was sought to be supported by contending that she was earning
Rs.9,000/- per month.
3.The claim was resisted by the Insurance Company contending
that the accident did not occurred in the manner suggested by the claimant
and that the claimant had also contributed to the accident. It is the further
contention of the Insurance Company that the quantum claimed is excessive.
4.The said original petition in MCOP.No.6351 of 2015 was tried
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C.M.A.Nos.2588 & 2936 of 2022
along with MCOP.No.6130 of 2015, which was filed by the another victim of
the same accident. The claimant in MCOP.No.6351 of 2015, which is the
subject matter of these appeals was examined as P.W.2. Exs.P10 to P15 were
marked on her side. Ex.C2, a certificate of the Medical Board, certifying that
she has suffered 85% of disability was also marked. The Insurance Company
did not let in any evidence. The owner of te Eicher Van remained absent.
5.The Tribunal on the appreciation of the evidence on record
concluded that the accident had occurred due to the rash and negligent
driving of the Eicher Van. In coming to the conclusion, the Tribunal relied
upon the First Information Report and the fact that there was no evidence on
the side of either owner or the Insurance Company to dispute the claim made.
On the disability, the Tribunal took into account that the left leg had been
amputated above the knee and the accident had resulted in fracture of the
right femur bone also and concluded that the claimant cannot move freely
without the assitance of others. It also found that the claimant cannot carry
on her avocation.
6.On the said findings, the Tribunal fixed the loss of earning
capacity at 100%. Having fixed the loss of earning capacity at 100%, the
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C.M.A.Nos.2588 & 2936 of 2022
Tribunal took the monthly income of the claimant at Rs.9,000/-, added 25%
towards future prospects and arrived at the yearly loss of income at
Rs.1,35,000/-. Since the claimant was aged 49 years at the time of the
accident, the Tribunal applied the multiplier of 13 and arrived at
Rs.17,55,000/- towards loss of earning capacity. It also awarded a sum of
Rs.45,000/- towards loss of income, Rs.50,000/- towards pain and suffering,
Rs.5,000/- towards transportation expenses, Rs.50,000/- towards nutrition
expenses, Rs.1,000/- towards damages to clothes, Rs.50,000/- towards
attender charges, Rs.50,000/- towards loss of amenities, Rs.25,000/- towards
mental agony and Rs.25,000/- towars loss of marital status. In all, the
Tribunal arrived at the total compesation of Rs.20,56,000/-. Aggrieved, both
the Insurance Company and claimant are on appeal.
7.We have heard, Mr.K.Varadha Kamaraj and Mr.P.Suresh
Srinivasan, learned counsel appearing for the parties.
8.Mr.P.Suresh Srinivasan, learned counsel appearing for the
Insurance Company would vehemently contend that the Tribunal was not
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C.M.A.Nos.2588 & 2936 of 2022
right in fixing the loss of earning capacity at 100%, while the Medical Board
had assesed the disability only at 85%. He would also point out that the
Tribunal has granted Rs.25,000/- towards loss of marital status for 49 years
old women. He would also point out that the claimant was described as a
married woman in the claim petition itself. Therefore, according to the
learned counsel, the compensation on the head of loss of marital status ought
not to have been granted.
9.Contending contra, Mr.K.Varadha Kamaraj, learned counsel for
the claimant would vehemently argue that the Tribunal has awarded a very
low amount towards attender charges. Pointing out the finding of the
Tribunal that the claimant is virtually immobile, the learned counsel would
submit that the attender charges should be awarded at a higher rate,
considering the fact that she would be forced to have a attender through out
her life time. The learned counsel would submit that the loss of amenities
awarded at Rs.50,000/- is very low. We have considered the rival
submissions.
10.A perusal of the discharge summary, which has been filed as
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C.M.A.Nos.2588 & 2936 of 2022
Ex.P11 would show that the claimant has suffered a fracture in the shaft of
the right femur bone, apart from a fracture in the acetubulum on the left side.
It is also seen that there was an amputation above the knee of the left leg.
The Tribunal has recorded a finding that the claimant has been rendered
almost immobile and she cannot move about without the help of others. Each
injury or fracture may contribute to a percentage of disability but
dependingon the profession of the avocation of the injured, the effect of the
injury on the earning capacity will be different.
11.As we have pointed out that the claimant had claimed that she
was working as a Housekeeper. As a result of the injuries and the disabilities
suffered, it is certain that she cannot continue the said avocation. She cannot
also do any other work due to the condition that she had incurred because of
the injuries suffered at the accident. We are therefore, of the considered
opinion that the Tribunal was right in fixing the loss of earning capacity or the
functional disability at 100%.
12.On the quantum, we are unable to fault the Tribunal for having
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C.M.A.Nos.2588 & 2936 of 2022
fixed the income at Rs.9,000/- for an accident that had occurred in 2015. The
said income is less than the salary of a last grade servant in the Government
at the relevant period. We are therefore, not inclined to interfere with the
quantum of compensation under the head of loss of earning capacity.
13.As regards the other heads, we find that the award towards loss
of attender charges is little low but a sum of Rs.25,000/- awarded towards
loss of marital status cannot be justified, since the claimant was married even
at the time of the accident. Therefore, the award under the head of loss of
marital status is set aside and the sum of Rs.25,000/- awarded under the head
is added to the attender charges.
14.We do not find any other reason to enhance the award. The
award, as on whole is just and reasonable. We are conscious of the fact that a
woman aged about 49 years has suffered these injuries and she has to live
with the disabilities till her life time, which agony cannot be compensated in
terms of money. We therefore, see no reason to interfere with the award of
the Tribunal. In view of the same, these Civil Miscellaneous Appeals are
dismissed. No costs. Consequently, connected miscellaneous petitions are
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C.M.A.Nos.2588 & 2936 of 2022
closed.
15.The Insurance Company will deposit the balance amount within
a period of twelve weeks from the date of receipt of a copy of this order. The
Tribunal will pay out the 50%, which is already in deposit with accrued
interest forthwith to the claimant. The balance amount shall be paid over to
the claimant as and when it is deposited.
(R.S.M.,J.) (R.K.M.,J.)
08.09.2023
kkn
Internet:Yes/No
Index:Yes/No
Speaking/Non-speaking order
Nuetral Citation : Yes/No
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
KKN
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2588 & 2936 of 2022
To:-
The Motor Accident Claims Tribunal,
IV-Small Causes Court,
Chennai.
C.M.A.Nos.2588 & 2936 of 2022
and
C.M.P.Nos.20091 of 2022 & 19437 of 2023
08.09.2023
https://www.mhc.tn.gov.in/judis
