Madras High Court
Reliance General Insurance Company Ltd vs N.Vijayalakshmi on 4 January, 2024
Author: M.Sundar
Bench: M.Sundar
C.M.A.No.3089 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2024
Coram
THE HON'BLE MR.JUSTICE M.SUNDAR
and
THE HON'BLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI
C.M.A. No.3089 of 2023
and
C.M.P. No.29302 of 2023 in C.M.A.No.3089 of 2023
Reliance General Insurance Company Ltd.,
Rai's Tower, 2nd Floor,
No.2054, 2nd Avenue, Chennai – 40. .. Appellant
vs
1.N.Vijayalakshmi
2.R.Kamal .. Respondents
Appeal filed under Section 173 of The Motor Vehicles Act,
1988 against the judgment and decree dated 27.07.2023 passed in
M.C.O.P. No.6384 of 2015 on the file of Motor Accidents Claims
Tribunal Special Sub Judge II, Court of Small Causes, Chennai.
For Appellant : Mr.P.Suresh Srinivasan
For Respondents : Mr.P.C.Ramesh
for Ms.J.Jayapriya
for R1/Caveator
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1/13
C.M.A.No.3089 of 2023
JUDGMENT
[Judgment of the Court was delivered by M.SUNDAR, J.]
Captioned main 'Civil Miscellaneous Appeal' (hereinafter
'CMA' for the sake of brevity) has been filed in this Court on
12.12.2023.
2. Captioned CMA is a statutory appeal under Section 173 of
'The Motor Vehicles Act, 1988' (hereinafter 'MV Act' for the sake of
brevity) and it has been filed by an insurance company which had
insured a car owned by one R.Kamal (second respondent before
this Court) in which N.Vijayalakshmi was a passenger and she
suffered serious injuries owing to a road accident on 03.07.2015.
To be noted, N.Vijayalakshmi is claimant before the Motor
Accidents Claims Tribunal.
3. Aforementioned CMA has been filed by the insurance
company assailing an award dated 27.07.2023 made in
M.C.O.P.No.6384 of 2015 on the file of 'Motor Accidents Claims
Tribunal being Court of Special Sub Judge II, Court of Small
Causes, Chennai' (hereinafter 'said MACT' for the sake of
convenience and clarity). This '27.07.2023 award' shall be referred
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to as 'impugned award' for the sake of convenience.
4. Short facts are that owing to the aforementioned road
accident on 03.07.2015, N.Vijayalakshmi (first respondent before
us) suffered injuries and she made a claim of Rs.1 crore before
said MACT vide aforementioned M.C.O.P.No.6384 of 2015 and said
MACT after full contest/full trial awarded a little over Rs.83.57
lakhs i.e., Rs.83,57,520/- to be precise. Insurance company has
filed the captioned CMA saying that this quantum is high. To be
noted, captioned CMA by the insurance company is only on
quantum and not liability.
5. Today, in the Admission Board, Mr.P.Suresh Srinivasan,
learned counsel for insurance company and Mr.P.C.Ramesh, who is
on caveat on behalf of the claimant are before us.
6. Learned counsel for insurance company assailing the
impugned award (notwithstanding very many grounds that have
been articulated in the memorandum of grounds of appeal)
predicated his campaign against the impugned award on two
points and they are as follows:
(i) 40% should not have been applied and that
has increased the quantum of award vastly;
(ii) Disability percentage has been erroneously
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fixed at 90%.
7. On the aforesaid grounds canvassed, the points for
determination that arise in the captioned CMA are:
(i) Whether said MACT was correct in
applying 40% principle in arriving at the quantum of
impugned award?
(ii) Whether said MACT was correct in fixing
90% as loss of earning capacity in the light of
claimant having become paraplegic?
8. We carefully considered the arguments. We perused the
case file before us and we are of the considered view that
captioned CMA deserves to be dismissed and the reasons will be
set out infra. To be noted, while setting out the reasons, we shall
be setting out the points urged, discussion on the same and the
dispositive reasoning together. The points, discussion and
dispositive reasoning are as follows:
8.1 As regards the first point regarding 40% addition of
established income, the dispositive reasoning is fairly simple owing
to authoritative pronouncement of Hon'ble Supreme Court in
National Insurance Co. Ltd. Vs. Pranay Sethi reported in
(2017) 16 SCC 680 and more particularly paragraph 59.4 thereat
which reads as follows:
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'59.4 In case the deceased was self-employed
or on a fixed salary, an addition of 40% of the
established income should be the warrant where the
deceased was below the age of 40 years. An
addition of 25% where the deceased was between
the age of 40 to 50 years and 10% where the
deceased was between the age of 50 to 60 years
should be regarded as the necessary method of
computation. The established income means the
income minus the tax component.'
8.2 In Pranay Sethi's case, Sarla Verma principle being
principle laid down in Sarla Verma Vs. Delhi Transport
Corporation reported in (2009) 6 SCC 121 was upheld. As
regards paragraph 42 of Sarla Verma's case, though Sarla Verma's
case was partly overruled in Pranay Sethi's case ( paragraph 42 of
Sarla Verma's case sustained), we are concerned only with
paragraph 59.4 of Pranay Sethi's case which has been extracted
and reproduced supra. The reason is, the claimant was 35 years
old on the date of the accident viz., 03.07.2015 and there is no
disputation or contestation that the claimant became paraplegic.
This means that the mobility of the claimant is seriously afflicted.
Considering the age and considering the fact that the claimant was
working as a Senior Infra Engineer in a private company drawing a
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monthly salary of Rs.27,500/-, 40% addition of established income
by said MACT applying Pranay Sethi principle cannot be found
fault with. To be noted, said MACT has specifically referred to
Pranay Sethi in sub-paragraph (ii) of paragraph 8.2. Citation which
said MACT has relied on is 2017 (2) TNMAC 609 and it is to be
noted that the equivalent in SCC is (2017) 16 SCC 680 as already
alluded to supra. This sub-paragraph (ii) of paragraph 8.2 of the
impugned award reads as follows:
'8.2
(i) ......
(ii) Future Prospects:
As per the judgment of Hon'ble Apex Court
reported in 2017(2)TNMAC 609 between National
Ins. Co. Ltd. Vs. Pranay Sethi and others the future
prospects to be added. As decided in that case the
future prospects for the age group below 40 in fixed
salary is 40% which will come to a sum of
Rs.11,000/- (27,500 x 40/100) the total monthly
income is Rs.38,500/- in this amount the income tax
at the rate of 10% needs to be deducted so 38,500
x10/100 = Rs.3,850/- to be deducted so the balance
is Rs.34,650/-. Thus, the annual income of the
petitioner fixed as Rs.4,15,800/- (34,650 x 12).'
8.3 In the light of the authoritative pronouncement of
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Hon'ble Supreme Court, we find that said MACT has correctly
applied 40% addition of established income and therefore the first
point does not cut ice with us. In other words, the first point does
not find favour with us. We add that the first point is a non-starter
in the light of the settled position of law.
8.4 This takes this Court to the second point which is on
disability. As regards disability, point for determination that has
been framed by said MACT is point No.3 and the same reads as
follows:
'(3) Whether the petitioner is entitled to get
compensation if so, what should be the quantum of
compensation, and by whom it is payable?'
8.5 This point No.3 has been answered in paragraph 8 of the
impugned award and the most relevant potion of paragraph 8
reads as follows:
'8.ANSWER FOR POINT No.3:
8.1 As decided in the above points the accident
was happened due to the rash and negligent driving
of the 1st respondent car driver, resulted the
petitioner sustained grievous injury as per the Ex.P4
Accident Register. Then she referred to medical
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board to fix her disability and on examination the
board of doctors decided that she is suffered from
post-traumatic sequelae and fixed her disability as
90% as per the Ex.C1 disability certificate. The main
contention of the petitioner side is that, below hip
she totally lost her senses and confined to wheel
chair without movement resulted she lost her job.
8.2 Considering the above fact this court
decided that so its a fit case adopt multiplier method
since she lose of her sense below hip lost her earning
capacity due to the accident and disability fixed as
90%.'
8.6 A careful perusal of the aforementioned articulation in
the impugned award makes it clear that 90% loss of earning
capacity fixed by said MACT cannot be found fault with as there is
no disputation or contestation that the claimant became
paraplegic. In this regard, two case laws of Hon'ble Supreme Court
are of immense relevance and they are Raj Kumar Vs. Ajay
Kumar reported in (2011) 1 SCC 343: 2010 SCC OnLine SC
1166 which was followed by Hon'ble Supreme Court in Ankur
Kapoor Vs. Oriental Insurance Co. Ltd. reported in 2017 SCC
OnLine SC 1294.
8.7 As regards Raj Kumar's case and Ankur Kapoor's case,
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Hon'ble Supreme Court drew out a discerning distinction between
pecuniary damages and non-pecuniary damages i.e., while
pecuniary damages were classified as special damages, non-
pecuniary damages were classified as general damages. Under
pecuniary damages, loss of earning due to injury, during
treatment, future loss were all slotted. Under non-pecuniary
damages, pain and suffering, amenities and expenditure in this
regard, non-tangible increase were slotted. It may not be
necessary to dilate much on these pecuniary damages and non-
pecuniary damages i.e., special damages and general damages as
the effect of disability on earning capacity has to be assessed by
applying a test which is three fold and which has been articulated
elucidatively by Hon'ble Supreme Court in Raj Kumar's case in
paragraph 13, which reads as follows:
'13. 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 disability (this is
also relevant for awarding compensation under the
head of loss of amenities of life). The second step is
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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.'
8.8 To be noted, as already alluded to supra, Raj Kumar's
case (supra) has been followed by Hon'ble Supreme Court in
Ankur Kapoor's case (supra). This governs the field. In the case on
hand, the claimant having become paraplegic obviously could not
have continued her avocation and therefore what the said MACT
has fixed at 90% is not disability but loss of earning capacity.
There is a clear distinction between percentage of disability and
percentage of loss of earning capacity. This also has been
elucidatively laid down by Hon'ble Supreme Court in Raj Kumar's
case (supra) and the relevant paragraph is paragraph 13 (supra).
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This means that the second point also does not cut ice with us.
9. This Court having set out the two grounds on which
campaign of the insurance company against the impugned award
was predicated and having discussed the same given its dispositive
reasoning now notices that learned counsel for caveator submits
that the claimant has not preferred any appeal. This submission is
recorded. This further means that it is curtains qua the unfortunate
road accident, the episode and the litigation culminating in this
appeal. Sequitur is aforementioned points for determination stand
answered against the appellant insurance company.
10. In the light of the narrative, discussion and dispositive
reasoning thus far, captioned CMA fails and the same is dismissed.
Consequently, captioned 'Civil Miscellaneous Petition' ('CMP' for the
sake of brevity) also fails and the same is also dismissed. There
shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.)
04.01.2024
Index : Yes / No
Neutral Citation : Yes / No
mmi
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
M.SUNDAR, J.,
and
K. GOVINDARAJAN THILAKAVADI, J.,
mmi
To
The Motor Accidents Claims Tribunal,
Special Sub Judge II,
Court of Small Causes, Chennai.
04.01.2024
https://www.mhc.tn.gov.in/judis
