Madras High Court

Malarkodi vs Diamond Engineering Chennai Pvt. Ltd on 10 February, 2025

                                                                                             CMA.No.3528 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         Dated 10.02.2025

                                                               CORAM:

                                   THE HONOURABLE MR.JUSTICE S.SOUNTHAR

                                                     CMA No.3528 of 2021

                       Malarkodi                                                                 ... Appellant

                                                                    Vs.

                       1. Diamond Engineering Chennai Pvt. Ltd.,
                          No.179, IT Highway,
                          Sholinganallur, Chennai 600 119.

                       2. ICICI Lombard General Insurance Company Ltd.,
                          Rep. by its Branch Manager,
                          Chottabai Centre, No.140,
                          Nungambakkam High Road,
                          Chennai 600 034.                                                   ... Respondents

                       Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
                       Vehicles Act 1988 against the decree and judgment dated 02.03.2020
                       passed in MCOP No.49 of 2014 on the file of the Chief Judicial
                       Magistrate, Motor Accident Claims Tribunal, Chengalpattu.


                                  For appellant        : Dr.S.S.Swaminathan
                                  For Respondent       : Mr.P.Magesh, for second respondent
                                                        No appearance for first respondent


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                                                                                           CMA.No.3528 of 2021

                                                          JUDGMENT

Not satisfied with the quantum of compensation awarded by the

Tribunal, the injured/claimant has come before this court by way of

filing the present appeal.

2. It is not in dispute that the injured/claimant met with an

accident on 01.10.2014, when she travelled as a pillion rider in the

motor cycle bearing registration No.TN 19-8371, driven by its driver.

It is the case of the appellant/claimant that the bus bearing registration

No.TN 22 BX 4008 belonging to the first respondent, came from the

back side of the motorcycle and caused the accident. As a result of the

accident, the left leg of the appellant got amputated at knee level. Both

the counsel have not advanced any argument on the question of

negligence and liability and therefore, the facts necessary for fixing

negligence and liability have not been considered in the present appeal.

3. The learned counsel for the appellant/claimant would submit

that the accident occurred on 01.10.2014 and inspite of the fact that the

appellant produced salary slip, salary certificate, etc. issued by her

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employer and the same were marked as Ex.P10, P14 and P11, the

Tribunal failed to take into consideration those documentary evidence

available on record and fixed a meager sum of Rs.6,500/- as income of

the appellant. It is further submitted by the learned counsel for the

appellant that in Ex.C1, disability certificate issued by the Medical

Board, disability of the appellant was assessed at 60%. However, the

Tribunal over looked the same and reduced the disability at 40%,

without any basis.

4. The learned counsel for the second respondent/Insurance

company would submit that though the appellant produced pay slip,

salary slip etc. issued by her Employer, she failed to produce any

document to show that the said salary was actually paid to the

appellant. Therefore, the Tribunal is justified in not relying the said

documents produced by the appellant/claimant. He further submitted

that the appellant suffered amputation of left leg at knee level and the

said disability was assessed by the Medical Board at 60% and the same

was converted into functional disability at 40%. Therefore, the

disability of 40% fixed by the Tribunal need not be interfered with.

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5. In order to prove the avocation and the income of the

appellant, she was examined as PW1 and her employer was examined

as PW2. The appellant clearly deposed that she was employed as a

supervisor under PW2, who is extending house keeping service to an

educational institution. It is also claimed by the appellant /claimant

that she served as NALAM Community Wellness Mobilizer, as a part

of 'Banyan' NGO Rural Mental Health Programme. The Ex.P10 is the

pay slip of the appellant issued in the month of September 2014. A

perusal of the Ex.P10 would suggest that her total salary was

Rs.14,000/- per month. The Ex.P14 certificate was issued by her

employer, mentioning her salary as Rs.14,000/- per month. The Ex.P11

is the certificate issued by the Deputy Director of 'The Banyan',

certifying that the appellant served as a NALAM Community Wellness

Mobilizer and she was paid an incentive of Rs.2,500/- per month along

with other allowance of Rs.500/-.

6. The appellant has produced the above said Ex.P10, P11 and

P14 to suggest that her monthly income was Rs.16,500/- at the

relevant point of time. The employer was also examined as PW2 and he

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has given evidence, supporting the income of the appellant. Though

the appellant has not produced any document to show that the amount

mentioned in the salary certificate and other documents were actually

paid to her, taking into consideration the date of accident and the

documents filed by her in support of her income, this court feels that it

would be appropriate to fix a sum of Rs.15,000/- per month as monthly

income of the appellant/claimant.

7. The appellant suffered amputation of left leg at knee level.

The evidence available on record would suggest that she was employed

as a supervisor under PW2, who was engaged in private house keeping

service to an educational institution. In fact, the appellant suffered

road accident, when she was proceeding to her work place. PW2

clearly deposed that due to the amputation of left leg at knee level, the

appellant/claimant is unable to continue her job and she was confined

to the house. The said evidence of PW2 was not challenged by the

respondents through cross examination. Therefore, this court comes to

the conclusion that the amputation suffered by the appellant, definitely

affected her avocation. Therefore, the opinion expressed by the

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Medical Board that the appellant suffered 60% disability is taken into

consideration as it is and thereby this court fixes the disability suffered

by the appellant as 60% .

8. As per the law laid down by the Honourable Supreme Court

in National Insurance Company Limited Vs. Pranay Sethi and others

reported in AIR 2017 SC 5157( Special Leave Petition (Civil)

No.25590 of 2014 dated 31.10.2017), the appellant is entitled to 40%

enhancement towards future prospects. Therefore, the monthly income

of the appellant is fixed at Rs.21,000/- (15,000 +6000), which includes

40% future prospects. Accordingly, permanent disability suffered by

the appellant is calculated by applying proper multiplier '16', which

comes to Rs.24,19,200/-. (21,000x12x16x 60/100).

9. The appellant/claimant deposed before the Tribunal as PW1

that she has been using prosthetic limb. It is a matter of common

knowledge that the prosthetic limb requires regular maintenance every

year and it has to be replaced once in 15 years. The appellant was aged

about 34 years at the time of accident. Therefore, she has to replace the

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prosthetic limb atleast twice during her life time, if the normal life

expectancy of the appellant is taken into consideration at 70 years.

10. Further, taking into consideration the future medical

expenses involved in replacing and maintenance of prosthetic limb,

this court feels that it would be appropriate to award a sum of

Rs.1,50,000/- towards future medical expenses, even though the

appellant has not produced any documentary evidence for the same.

11. In view of the above discussion and also taking into

consideration the year of accident, the amount awarded by the Tribunal

at Rs.6,900 and Rs.4,000/- towards Conveyance and extra nourishment

are enhanced to Rs.10,000/- and Rs.5,000/- respectively.

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

under the other heads viz., hospitalization and medicines, attender

charges, damages for clothing and articles, pain and suffering, future

amenities are concerned, the same are just and reasonable and hence

they are confirmed.

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13. Accordingly, the revised compensation awarded by this Court

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.     expenses to treatment,         1,17,225             1,17,225       confirmed
                                     hospitalization and
                                     medicines
                              2.     Conveyance                        6,900              10,000        enhanced
                              3.     Extra nourishment                 4,000               5,000        enhanced
                              4.     Attender charges                  5,000               5,000        confirmed
                              5.     Damages for clothing              1,000               1,000        confirmed
                                     and articles
                              6.     Disability                     6,98,880            24,19,200       enhanced
                              7.     pain and sufferings              25,000              25,000        enhanced
                              8      Loss of future                   25,000              25,000        confirmed
                                     amenities
                              9.     Future medical                       -              1,50,000        granted
                                     expenses
                                     Total                          8,83,005            27,57,425      enhanced by
                                                                                                        18,74,420

it is made clear that the compensation awarded towards Future

medical expenses will not carry any interest.

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14. With the above modifications, this Civil Miscellaneous

Appeal is allowed and the compensation awarded by the Tribunal at

Rs.8,83,005/- is hereby enhanced to Rs.27,57,425/-. The claimants are

entitled to the said amount together with interest at 7.5% per annum

(except future medical expenses and excluding the default period, if

any) from the date of petition till the date of deposit. The appellants/

claimants are directed to pay applicable additional court fee on the

above mentioned enhanced amount.

15. The second respondent is directed to deposit the