Madras High Court

R.Venkateswaran vs Ramasamy on 3 February, 2025

CMA.No.3062 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 03.02.2025

CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR

CMA No.3062 of 2021

R.Venkateswaran ... Appellant

Vs.

1. Ramasamy

2. M/s United India Insurance Company Limited,
Divisional Office HUB, No.104-A,
Peramanur Main Road, Salem 636 007. ... Respondents

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988 against the decree and judgment dated 08.01.2020
made in MCOP No.285 of 2018 on the file of the Subordinate Judge,
Motor Accident Claims Tribunal, Omalur.

For appellant : Mr.S.P.Yuvaraj
For Respondent : Mr.J.Chandran for second respondent
No appearance for first respondent

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JUDGMENTis

This appeal has been filed by the claimant, seeking enhancement

of compensation awarded by the Tribunal.

2. The appellant met with an accident on 17.06.2015, while he

was driving TVS Scooty Pep bearing Registration No. TN 30 AU 3802.

The driver of the motor cycle, bearing registration No. TN 30 BA 9711,

belonging to the first respondent, has driven the vehicle in a rash and

negligent manner and dashed against the appellant. As a result of

accident, the appellant received a crush injury in his right leg and as a

consequence, his right leg was amputated below the knee level.

Therefore, the appellant has filed MCOP No.285/2018 seeking

compensation of Rs.65,00,000/-.

3. The first respondent remained exparte and the claim petition

was resisted by the second respondent/ Insurance company by filing

counter affidavit, denying the averment contained in the original

petition.

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4. The Tribunal, based on the evidence available on record, came

to the conclusion that the accident had taken place due to the rash and

negligent driving of the driver of the first respondent's vehicle.

5. The learned counsel for the appellant would submit that right

leg of the victim was amputated below knee level and therefore,

disability suffered by him should have been taken as 100% disability.

In support of his contention, the learned counsel relied on the judgment

of the Apex Court in Parminder Singh Vs. New India Assurance Co.

Ltd. and others reported in CDJ 2019 SC 747

6. The learned counsel for the appellant would further submit

that the appellant has to replace his prosthetic limb periodically once in

fifteen years and he has to maintain the same every year. The expenses

for regular maintenance of prosthetic limb and its replacement has not

been considered and no amount was granted to the same by the

Tribunal. He also submitted that the amount awarded by the Tribunal

under the head of Loss of Marital Prospects is very much on lower

side.

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7. The learned counsel for the second respondent would submit

that the appellant was employed as a clerk in Aircel Limited and

therefore, due to the amputation of his leg, he has not suffered any loss

of earning capacity and hence, the amount of compensation awarded

under the head ' Permanent Disability' need not be disturbed. The

learned counsel further submits that the compensation awarded by the

Tribunal under other heads were fixed, by taking into consideration the

facts and circumstances of the case and hence, the award passed by the

Tribunal need not be interfered with.

8. Based on the evidence available on record, the Tribunal came

to the conclusion that the appellant was employed as a Collection Clerk

and he was in receipt of salary at Rs.9,000/- per month. The Tribunal

applied multiplier method by fixing disability at 65%. Accordingly, by

adding 40% to the income of the appellant and applying multiplier '16',

has arrived at compensation of Rs. 15,72,480/- (1,51,200 x 16 x 65%).

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9. The learned counsel for the appellant, though relied on the

judgment of the Apex Court in Parminder Singh Vs. New India

Assurance Co. Ltd. and others reported in CDJ 2019 SC 747, the

facts of the said case are not applicable to the present case. In the

above said case relied on by the appellant, the victim was employed as

a driver. By taking into consideration his avocation, the Hon'ble

Supreme Court came to the conclusion that the amputation of one leg

will result in disability at 100%. The said ratio cannot be extended to

the present case on hand, because, admittedly, the appellant was

employed as a clerk. In the claim petition, the appellant clearly

pleaded that he was employed as clerk in the Aircel Office and the

same was supported by a salary slip issued by the employer and

evidence of its official who was also examined as PW2. A person

employed as a clerk can continue his desk top job even after

amputation. Therefore, the judgment relied on by the counsel for the

appellant is not helpful to him. The Tribunal fixed the disability at

65% for loss of amputation of right leg of the appellant below knee

level and the same appear to be correct. Hence, the compensation

under the head permanent disability need not be disturbed.

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10. The Tribunal fixed the compensation for the loss of marital

prospects at Rs.50,000/-. The petitioner was aged about 35 years at the

time of accident. It is not in dispute that he was not married at the time

of claim petition. Therefore, this court feels that it would be

appropriate to enhance the compensation under the head loss of marital

prospects to Rs.1,50,000/-.

11. The Tribunal awarded a lump sum of Rs.1,00,000/- for fixing

prosthetic limb for the appellant. However, the Tribunal has not taken

into consideration the vital fact that the prosthetic limb has to be

replaced once in 15 years. Further, within 15 years, the prosthetic limb

needs to be maintained once in two years, as the size of the amputated

limb will differ from time to time. Therefore, the petitioner is entitled

to the cost for replacing and also maintenance of prosthetic limb. The

petitioner was aged about 35 years at the time of accident. Taking into

consideration the normal life expectancy in India, the petitioner may

require to replace the limb at the age of 50 and 65 years. Further,

taking into consideration the escalation in the price of the prosthetic

limb, a sum of Rs.4,00,000/- is awarded towards replacement of

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prosthetic limb and a sum of Rs.1,00,000/- towards the cost of

periodical maintenance of prosthetic limb. The amount of

Rs.1,00,000/- awarded by the Tribunal towards cost of fixing prosthetic

limb is confirmed, in addition to amount mentioned supra towards cost

of replacement and cost of maintenance.

12. As far as the compensation awarded by the Tribunal under

other conventional heads, pain and sufferings, transportation, loss of

income, extra nourishment and medical expenses are concerned, the

same are just and reasonable, in the light of amputation suffered by the

victim and facts and circumstances of the case. Hence, this court is not

inclined to disturb it.

13. The Victim suffered amputation of right leg below knee

level. Hence, he cannot lead his normal life as before. Hence,

reasonable amount shall be awarded under the head loss of amenities.

The Tribunal awarded a sum of Rs.1,00,000/- under the head crush

injury. The same is not sustainable and set aside. However, this court

is inclined to award a sum of Rs.1,00,000/- under the head loss of

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amenities.

13. Accordingly, the revised compensation awarded by the

Tribunal is tabulated as under:

Sl. Description Amount Amount Award
No awarded by awarded by confirmed
Tribunal this Court or enhanced
(Rs) (Rs) or granted
1. Partial permanet 15,72,480 15,72,480 confirmed
disability
2. Medical expenses 2,40,595 2,40,595 confirmed
3. Crush injury 1,00,000 - set aside
4. pain and sufferings 1,00,000 1,00,000 confirmed
5. Loss of marital life 50,000 1,50,000 enhanced
6. Fixing Prosthetic limb 1,00,000 1,00,000 confirmed
7. for Replacement of - 4,00,000 granted
prosthetic limb
8 Maintenance of - 1,00,000 granted
prosthetic limb
9. Transportation 10,000 10,000 confirmed
10 Loss of income 10,000 10,000 confirmed
11 Nutrition 10,000 10,000 confirmed
12 Loss of amenities - 1,00,000 granted
Total 21,93,075 27,93,075 enhanced by
Rs.6,00,000/-

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14. With the above modifications, this Civil Miscellaneous

Appeal is partly allowed and the compensation awarded by the

Tribunal at Rs.21,93,075/- is hereby enhanced to Rs.27,93,075/-

together with interest at 7.5% per annum (excluding the default period,

if any) from the date of petition till the date of deposit. The award of

the Tribunal with regard to clause-3 of the decree is confirmed and

the insurance company is at liberty to proceed against the owner to

realise the award amount.

15. The second respondent is directed to deposit the

compensation amount now determined by this Court, along with

interest and costs, less the amount already deposited, if any, within a