Madras High Court
G.Rajaram vs G.Pothiyamalai on 28 October, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.M.A(MD)No.671 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:28.10.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
C.M.A(MD)No.671 of 2018
G.Rajaram ... Appellant
Vs.
1.G.Pothiyamalai
2.The Claims Manager,
IFFCO Tokkio General Insurance,
Company Limited,
No.82, Piritham Plaza,
1st Floor, Chandra Gandhi Nagar,
Ponmeni, Bye Pass Road,
Madurai. ... Respondents
PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the fair and decreetal order dated
17.08.2017 and made in M.C.O.P.No.24 of 2016 on the file of Motor
Accident Claims Tribunal (Chief Judicial Magistrate), Virudhunagar
District, at Srivilliputhur, relating to the quantum of compensation
granted under various heads.
1/15
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.671 of 2018
For Appellant : Mr.N.Tamilmani
For 2nd Respondent : Mr.V.Sakthivel
JUDGMENT
The Civil Miscellaneous Appeal is directed against the award
passed in M.C.O.P.No.24 of 2016, dated 17.08.2017, by the file of Motor
Accident Claims Tribunal (Chief Judicial Magistrate), Virudhunagar
District, at Srivilliputhur.
2.The case of the claimant is that on 26.09.2015, at about 06.00
p.m., when the appellant was riding his Bajaj Discover two Wheeler
bearing Registration No.67 AS 1795, from south to north keeping
extreme left side of the Road on Alangulam to Srivilliputtur Road, the
first respondent drove Ford Figo Car bearing registration No.TN 84
8368, in a rash and negligent manner and not adhering the traffic rules
and dashed against the two wheeler of the appellant. Due to which, the
appellant has sustained fracture of right shaft of femur with vascular
injury, severely crushed fracture of right distal femoral bone and crushed
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fracture of tibia and fibula totally crushing soft tissues of right leg.
Immediately, the appellant was taken to Srivilliputtur Government
Hospital, and thereafter, he was referred to Madurai Rajaji Hospital, for
further treatment. But, in order to get specialized treatment, the appellant
was taken to Sakthibala Private Hospital, Rajapalayam, on 26.09.2015.
Under spinal Anaesthesia to the petitioner, the right lower leg was
amputated. After that, he was treated as inpatient till 03.10.2015.
Regarding the above said occurrence, the Vanniampatti Police Officers
registered a case against the first respondent in Crime No.157 of 2015 for
the offences under Sections 279 and 338 of IPC and the criminal case is
pending before the Judicial Magistrate No.II Court, Srivilliputtur.
Therefore, the appellant filed the claim petition in M.C.O.P.No.24 of
2016, claiming compensation of Rs.40,00,000/-.
3.During trial, the appellant/claimant has examined himself as
P.W.1 and one Mahadevan and V.Greemsman Daneil Vinothraj as P.W.2
and P.W.3 and exhibited 23 documents as Ex.P.1 to Ex.P.23. On the side
of the first respondent, he neither produced any documents nor examined
any witnesses. The Court side document is marked as Ex.C1.
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4.The learned trial Judge, upon considering the evidence both oral
and documentary and on hearing arguments of both sides, has passed the
impugned award dated 17.08.2017 holding that the accident had occurred
only due to the rash and negligence driving of the first respondent, and
directed the second respondent to pay compensation of Rs.11,31,558/- to
the appellant for which no interest carries for the amount of
Rs.2,05,614/- and for balance amount of Rs.9,25,944/- the appellant is
entitled for interest at the rate of 7.5% from the date of petition till
realization to the appellant and the amount has to be credited within one
month in the appellant's account. Aggrieved by the impugned award, the
appellant/claimant has preferred this present appeal.
5.The learned counsel appearing for the appellant submitted that
the claimant filed this appeal seeking enhancement of compensation. The
appellant sustained injury in the accident that took place on 26.09.2015
at 06.00 p.m., as a result of rash and negligent driving of the first
respondent, insured by the second respondent he suffered injury namely,
in his right shaft of femur with vascular injury, severely crushed fracture
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of right distal femoral bone and crushed fracture of tibia and fibula
totally crushing soft tissues of right leg. Thereafter, the right leg was
amputated above the knee. Before the accident, he was working as the
Operator of the pulverizing machine in Rajapalayam Chemicals, situated
at Sankarankovil Road, Vembakottai. Due to that, he lost his job and also
he is unable to do any job. In the said circumstances, the learned
Tribunal without applying multiplier method granted only Rs,1,00,000/-
to the appellant under the loss of earning capacity. Even though the
competent Medical Board granted 90% disability, the learned Tribunal
has not granted compensation calculating the loss of earning capacity by
adopting multiplier method.
5.1.The learned counsel further submitted that the leg was
amputated and hence, the Future Medical Expenditure amount of
Rs.2,05,614/- is not adequate by considering the Future Medical
Expenditure for changing the artificial leg and meeting artificial leg
maintenance.
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6.The learned counsel for the insurance/second respondent made
submission that as per the law, the learned Tribunal already granted
Rs.2,70,000/- under the head of the Permanent Disability and hence, the
loss of income for applying multiplier is not maintainable. The loss of
earning capacity by adopting the multiplier method is awarded. Then,
there is no authority to grant compensation for the 90% disability.
According to the learned counsel for the insurance, this Court has no
power grant both under head of permanent disability and the loss of
earning capacity. The learned counsel further submitted that the leg was
amputated and hence, as per the Workmen Compensation Act, only 6% to
be calculated. Hence, he seeks for dismissal of the appeal. The learned
counsel relied the following judgment of the Honourable Supreme Court
of the India and the High Court of Kerala:
6.1.(i).In the case of T.J.Parameshwarappa @ Parameshwarappa
@ J.T.Parameshwarappa Vs. The Branch Manager, New Indian
Assurance Co. Limited and others reported in 2022 CJ (SC) 934.
6.1.(ii).In the case of Oriental Insurance Co. Limited Vs.
Hariprasad reported in 2006 (1) CTC 81.
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7.This Court considered the submissions made on either side and
perused the record and also the medical records and Ex.P.15 namely
photograph of the appellant with amputated leg.
8.The following point arise for consideration of this appeal:
8.1.Whether the compensation awarded under various heads in the
impugned award in M.C.O.P.No.24 of 2016 is liable to be interfered?
9.Loss of earning capacity in the case of amputation of leg:
On 26.09.2015, appellant met accident and sustained fracture of
right shaft of femur with vascular injury, severely crushed fracture of
right distal removal bone and crusted fracture of fibia totally crushing
soft tissues of right leg. Therefore, the right leg was amputated above
knee. He also deposed that before accident he was working as the
operator of the pulverizing machine in Rajapalayam chemicals situated at
Vembakottai. As result, he lost his job and also he is unable to do any job.
This has virtually incapacitated him to get alternative employment. It is
not the case of insurance company that he has availed any other job and
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no such evidence is available on record. His job was operating
pulverizing machine. Once his leg is amputated, there is no question of
continuing the said job. There is no evidence of offering of alternative
job in the said company to the appellant. Hence, the case of appellant that
he lost his job and also he is unable to do any job can be accepted. The
permanent disability is also assessed as 90% by competent medical
board. There is no dispute on this also. The above said factual
circumstances warrant the application of multiplier method to determine
“loss of earning capacity” apart from awarding compensation under head
of both “Permanent disability”. It is no longer res integra, as per the law
laid down by Hon’ble Supreme Court in 2011 (6) SCC 620, 2012 (10)
SCc 171, 2013 (12) SCC 603 and 2015 (1) SCC 539, in deserving cases
the court, has power to grant compensation under both heads namely
“Permanent disability” and “loss of earning capacity”. Therefore this
court declines to accept the argument of learned counsel for insurance
company that there is bar to grant compensation under both heads of
“permanent disability” and loss of earning capacity” on the basis of the
Hon’ble Full Bench of this court and Kerala High Court reported in 2006
(1) CTC 81 and 2006 (4) CTC 433 on the premises, the same had been
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disapproved and over ruled by Hon’ble supreme Court in the 2011 (6)
SCC 620, 2012 (10) SCC 171 and 2013 (12) SCC 603.
9.1.This Court has looked into the nature of the job, percentage of
the disability and more specifically in the amputation case, the nature of
job he was doing has been lost. The basic principle of the compensation
rests on the maxim that “restitution integram”. So, the Court ought to
have granted compensation to place the injured in the same position
where the injured was before the accident. In the said circumstances,
considering that the appellant was working as the Operator of the
pulverizing machine, he cannot discharge the said duty without leg.
Therefore, this Court considered the nature of job and determining the
loss of income relating to the amputation happened in the right leg of the
injured person, the percentage of the disability is not a criteria to
determine the loss of earning capacity, but the nature of the job is a
material. In this case, the appellant was working as the Operator of the
pulverizing machine and he lost his earning capacity for the reason that
he cannot discharge his duty without leg. The medical Board assessed
90% disability. Even though the Medical Board assessed 90% disability,
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the disability caused loss of the earning capacity to the extent of 100%.
Hence, this Court inclines to adopt the multiplier method and calculate
the loss of earning capacity as follows:
10.According to the documents, the appellant earned Rs.410 as
daily wage. The Tribunal only had taken 20 days. But, as per the record,
the duty is 26 days. Hence, this Court calculates the monthly income of
the injured as Rs.10,660/- (410 X 26 days=10660). The appellant was
aged about 32 years, on the date of accident. Therefore, the multiplier is
adopted as 15 and calculating the same, the amount comes around
Rs.18,90,000/- (10500X12X15= 18,90,000). But, the learned Tribunal
Judge even though held that the appellant could not sit and walk as
before the accident and resultantly he is unable to operate pulverizing
machine and there is a functional disability, erroneously awarded a sum
of RS.s1,00,000/- under the head of loss of earning capacity, without
applying the multiplier method. Therefore, this Court calculates the
multiplier method and arrived the above amount under the head of loss of
earning capacity.
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11. The term 'permanent disability' refers to the residuary
incapacity or the loss of use of some part of the body found existing at
the end of the period of treatment/recuperation, which would reamin
forever without marked change in future. Therefore, as stated above, as
per principle laid down by the Hon'ble Supreme Court in the precedents
reported in 2011 (6) SCC 620, 2012 (10) SCC 171, 2013 (12) SCC 603
and 2015 (1) SCC 539, the claimant is entitled to get compensation for
both “permanent disability” and “loss of earning capacity”. But, the
Tribunal has failed to grant any amount under the head of permanent
disability. Earlier, this Court granted Rs.1,500/- per percentage of the
disability and subsequently considering the inflation increased it to Rs.
3,000/- and further enhanced to Rs.5,000/- per percentage. This Court
increased the said amount from Rs.3,000/- to Rs.5,000/- per percentage
by considering the cost of living. Therefore, the claimant is entitled to
get a sum of Rs.4,90,000/- under the head of permanent disability. [90 X
5000 = 4,50,000/-]. In view of the above discussion, the contention of the
learned counsel for the insurance that the Court has no power to grant
compensation under both “permanent disability” and “loss of earning
capacity” is not accepted. The Tribunal has power to grant both under the
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head of permanent disability and loss of earning capacity. Hence, this
Court is inclined to grant both under the heads of permanent disability
and also loss of earning capacity.
12.The learned Tribunal awarded only Rs.2,05,614/- under the
head of Future Medical Expenditure. It is the case of the appellant that
his right leg was amputated. Hence, the expenditure for artificial leg is
around Rs.2,00,000/-. This Court takes judicial notice that in the case of
artificial leg, the same is to be replaced periodically and the periodical
treatment is also necessary, in order to avoid further complication. In the
said circumstances, this Court enhances the amount under the heads of
Future Medical Expenses from Rs.2,05,614/- to Rs.4,00,000/-.
13. In view of the above, this Court modifies the award of the
Tribunal, as under:-
Amount Amount Award
S. Description awarded by awarded by confirmed or
No Tribunal this Court enhanced or
(Rs) (Rs) granted
1. For permanent Rs.2,70,000/- Rs.4,50,000/- enhanced
disability
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2. For Pain and Rs.1,00,000/- Rs.1,00,000/- Confirmed
suffering
3. For Loss of Rs.1,00,000/- Rs.1,00,000/- Confirmed
enjoyment and
expectation of life
4. For Loss of Rs. 32,800/- Rs.32,800- Confirmed
income
5. For Loss of Rs.1,00,000/- Rs.18,90,000/- Enhanced
Earning capacity
6. Nutritious Food Rs. 10,000/- Rs.10,000/- Confirmed
7. Medical Expenses Rs.2,88,144/- Rs.2,88,144/- Confirmed
8. Attender Expenses Rs. 25,000/- Rs.25,000/- Confirmed
9. Future Medical Rs.2,05,614/- Rs.4,00,000/- Enhanced
Expenses
By enhancing a
Total
Rs.11,31,558/- Rs.32,95,944/- sum of
Rs.21,64,386/-
14.Accordingly, this Civil Miscellaneous Appeal is partly allowed
by enhancing the compensation awarded by the Tribunal from
Rs.11,31,558 /- to Rs.32,95,944/- along with interest at the rate of 7.5%
per annum from the date of filing of the petition till the date of
realisation. The second respondent Insurance Company is directed to
deposit the enhanced award amount with proportionate accrued interest
and costs, and can deduct the amount if already deposited, within a
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period of four weeks from the date of receipt of a copy of this order. The
claimant/appellant is directed to pay the excess court fee, if any. On such
deposit being made, the appellant is entitled to withdraw the amount as
per the order of the Tribunal. No costs.
[V.B.S.J] [K.K.R.K.J.]
28.10.2024
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
vsg
To
1.The Chief Judicial Magistrate,
Motor Accident Claims Tribunal,
Virudhunagar District,
at Srivilliputhur.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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V.BHAVANI SUBBAROYAN.J.,
and
K.K.RAMAKRISHNAN.J.,
vsg
28.10.2024
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