Madras High Court

Kandasamy vs M.Duraisamy on 3 June, 2024

Author: Abdul Quddhose

Bench: Abdul Quddhose

                                                                               C.M.A.No.2073 of 2018


                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 03.06.2024

                                                      CORAM:

                                  THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                                               C.M.A. No.2073 of 2018


                     Kandasamy                                            .. Appellant

                                                        Vs.

                     1.M.Duraisamy

                     2.M/s.Royal Sundaram Alliance
                       Insurance Company Limited,
                       21, Patullos Road,
                       Chennai - 600 002.                                 .. Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, 1988 against the decree and judgment dated 27.03.2014
                     made in M.C.O.P. No.24 of 2011 on the file of the Motor Vehicle
                     Accident Claims Tribunal (Principal District Judge), Namakkal,
                     Namakkal District.


                                     For Appellant    : Mr.D.Nelliappan

                                     For R1           : No appearance
                                     For R2           : Mr.M.B.Raghavan



                                                     JUDGMENT

https://www.mhc.tn.gov.in/judis

This appeal has been filed by the appellant/claimant seeking

enhancement of compensation.

2.The Tribunal under the impugned award has directed the second

respondent/Insurance Company to pay the appellant/claimant the

compensation of Rs.2,60,790/- together with interest at the rate of 7.5%

per annum as detailed hereunder:

                      S.Nos.                             Heads                  Amount awarded
                                                                                 by the Tribunal
                          1.        Loss of future earning capacity             Rs.1,80,000.00
                          2.        Medical expenses                            Rs. 30,790.00
                          3.        Pain and suffering                          Rs. 20,000.00
                          4.        Transport                                   Rs. 10,000.00
                          5.        Nutrition                                   Rs. 10,000.00
                          6.        Loss of income                              Rs. 10,000.00
                                    Total                                       Rs.2,60,790.00

3.The appellant/claimant had sustained the following injuries as a

result of an accident caused by a vehicle, owned by the first respondent

and insured with the second respondent:

https://www.mhc.tn.gov.in/judis

'1.Left Tempero parietal SDH

2.Multiple contusion right frontal lobe

3.Depressed fracture right tempero parietal and left tempero parietal and mexilla fracture'

4.Though the learned counsel for the appellant/claimant would

contend that for an accident happened in the year 2010, the Tribunal

ought to have fixed the notional monthly income of the appellant/

claimant at Rs.7,000/-, the said contention is rejected by this Court as the

Tribunal has rightly fixed the notional monthly income of the appellant/

claimant at Rs.6,000/- after giving due consideration to the year of the

accident and after giving due consideration to the fact that no evidence

has been placed on record by the appellant/claimant before the Tribunal

to prove that he was earning Rs.7,000/- per month at the time of the

accident.

5.The nature of injuries sustained by the appellant/claimant has not

been disputed by the second respondent/Insurance Company before the

Tribunal. The Neuro Surgeon has assessed the disability of the appellant/

claimant at 45%, whereas the Ophthalmologist has assessed the

https://www.mhc.tn.gov.in/judis

disability of the appellant/claimant with regard to his vision at 90%. As

seen from the disability certificates issued by both the specialists, it is

clear that the appellant/claimant has lost his vision completely. In view of

the same, the appellant/claimant would have certainly lost his earning

capacity. However, the Tribunal has erroneously awarded disability

compensation based on percentage basis. The Tribunal ought to have

adopted the multiplier method and ought to have awarded compensation

towards Loss of earning capacity to the appellant/claimant instead of

awarding disability compensation based on percentage basis. The loss of

earning capacity of the appellant/claimant is assessed by this Court by

taking note of the fact that the notional disability of the appellant/

claimant is fixed at 90% in accordance with the disability certificate

issued by the Ophthalmologist, which has been marked as Ex.P8 before

the Tribunal. After giving due consideration to the nature of injuries

sustained by the appellant/claimant, which admittedly is grievous in

nature, the multiplier method ought to have been adopted. The law is well

settled as laid down by the decision of the Hon'ble Supreme Court in

National Insurance Company Limited Vs. Pranay Sethi and Others

reported in 2017 (16) SCC 680 that in cases where the Tribunal has

awarded compensation towards Loss of earning capacity, the appellant/ https://www.mhc.tn.gov.in/judis

claimant is entitled for Loss of Future prospects at 40%. Accordingly,

this Court awards the same. Therefore, instead of the disability

compensation awarded by the Tribunal on percentage basis at

Rs.1,80,000/-, this Court awards compensation towards Loss of earning

capacity to the appellant/claimant at Rs.15,42,240/- in the following

manner:

                     Monthly income                       -     Rs.6,000/-
                     Future prospects                     -     40%
                     Multiplier                           -     17
                     Notional disability      -           90%
                     Loss of earning capacity             -     6000x40/100=2400
                                                                6000+2400=8400x12x17x90%
                                                                Rs.15,42,240/-

6.This Court has given careful consideration to the compensation

awarded by the Tribunal under various other heads. After giving due

consideration to the same, this Court finds that the compensation

awarded by the Tribunal towards Pain and sufferings at Rs.20,000/- is

too low considering the nature of injuries sustained by the appellant/

claimant. Having lost his vision, the appellant/claimant is entitled for

higher compensation towards pain and suffering. Accordingly, this Court

enhances the compensation payable to the appellant/claimant towards

Pain and suffering from Rs.20,000/- to Rs.1,00,000/-.

https://www.mhc.tn.gov.in/judis

7.Insofar as the compensation awarded by the Tribunal towards

Medical bills at Rs.30,790/- is concerned, the same is confirmed by this

Court as only based on the medical bills produced by the appellant/

claimant the Tribunal has fixed the said sum.

8.After giving due consideration to the nature of injuries sustained

by the appellant/claimant, certainly the appellant/claimant would have to

incur Future medical expenses. This Court fixes the compensation

towards Future medical expenses payable to the appellant/claimant at

Rs.50,000/-, which the Tribunal has failed to award.

9.The Tribunal has also erroneously failed to award any

compensation towards Attender charges. Considering the nature of

injuries sustained by the appellant/claimant and the period of his

hospitalisation, the Tribunal ought to have awarded compensation

towards Attender Charges. This Court awards a compensation of

Rs.25,000/- to the appellant/claimant towards Attender charges.

10.The compensation awarded by the Tribunal towards https://www.mhc.tn.gov.in/judis

Transportation and Extra Nourishment are also low, which requires

enhancement by this Court. The compensation awarded by the Tribunal

towards Transportation is enhanced from Rs.10,000/- to Rs.20,000/- and

similarly, the compensation awarded by the Tribunal towards Extra

nourishment is enhanced from Rs.10,000/- to Rs.20,000/-.

11.Since this Court has applied the multiplier method and has

awarded compensation at Rs.15,42,240/- towards Loss of Earning

capacity, there is no necessity to separately award compensation towards

Loss of income. Hence, the compensation awarded by the Tribunal

separately towards Loss of income at Rs.10,000/- is set aside by this

Court.

12.It is evident from the injuries sustained by the appellant/

claimant, he will not be in a position to get married as he has lost his total

vision and he has also sustained other serious injuries as a result of the

accident caused by the vehicle, insured with the second respondent. The

appellant/claimant is also entitled to compensation towards Loss of

marital prospects, which this Court assesses the same at Rs.1,00,000/-.

https://www.mhc.tn.gov.in/judis

13.For the foregoing reasons, the compensation awarded by the

Tribunal at Rs.2,60,790/- to the appellant/claimant is enhanced to

Rs.18,88,030/- in the following manner:

                      S.Nos.                             Heads                  Amount awarded
                                                                                 by this Court
                          1.        Loss of future earning capacity            Rs.15,42,240.00
                          2.        Medical bills                              Rs.    30,790.00
                          3.        Future medical expenses                    Rs.    50,000.00
                          4.        Pain and suffering                         Rs. 1,00,000.00
                          5.        Attender charges                           Rs.    25,000.00
                          6.        Transport                                  Rs.    20,000.00
                          7.        Nutrition                                  Rs.    20,000.00
                          8.        Marital prospects                          Rs. 1,00,000.00
                                    Total                                      Rs.18,88,030.00

14.Accordingly, this Civil Miscellaneous Appeal is partly allowed

by enhancing the award amount. The second respondent/insurance

company is directed to deposit the enhanced award amount of

Rs.18,88,030/-, after deducting the amount already deposited, if any,

together with interest at the rate of 7.5% per annum from the date of the

claim petition till the date of deposit and cost to the credit of M.C.O.P.

No.24 of 2011 on the file of the Motor Accidents Claims Tribunal,

https://www.mhc.tn.gov.in/judis

Principal District Judge, Namakkal, within a period of four weeks from

the date of receipt of a copy of this judgment.

15.The appellant/claimant is permitted to withdraw the said

amount, once it is deposited by the second respondent/Insurance