Manivasagam v. Venkatesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 04.01.2017 JUDGMENT PRONOUNCED ON : 30.06.2017 CORAM :
THE HONOURABLE Mr. JUSTICE N.SESHASAYEE CMA.No.112 of 2010 Manivasagam ... Appellant Vs.
1.Venkatesh 2.The Branch Manager, National Insurance Company Limited, Branch Office-I, 78, T.V.S.Street, Erode.
... Respondents Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 16.10.2008 in MCOP.No.1043 of 2004 passed by the Motor Accident Claims Tribunal (Fast Track Court), Namakkal. For Appellant : Mr.R.Nalliyappan For Respondents : Mr.J.Chandran [ R2] R1 - No appearance
JUDGMENT
This appeal is preferred by the claimant who challenges what he perceives as inadequate compensation for the injury that he had suffered in a road accident that took place on 05.04.2004. The accident had occurred when a mini door auto rickshaw in which the claimant was travelling as a cleaner hit a stationary vehicle from behind. In the said accident, the claimant had suffered grievous injuries on his left forehead, knee, elbow and all over his body.
2. For the injuries suffered, he moved the Tribunal with a claim of Rs. 5,00,000/- against which the Tribunal has passed an award for Rs.1,06,265/- payable with interest at 7.5% per annum. In arriving at the said sum, Tribunal accepted the medical evidence determining the permanent disability suffered by the claimant at 52%. The table below reflects the amount claimed by the appellant on various heads and the damages awarded by the Tribunal:
Heads Amount Claimed (Rs.) Amount Awarded (Rs.) Loss of earning 1,00,000 Nil Partial loss of earning 1,50,000 Nil Transportation 10,000 5,000 Extra nourishment 25,000 5,000 Medical Expenses 1,50,000 44,265 Compensation for pain and suffering 1,50,000 Nil Compensation for continuing permanent disability 50,000 Nil Compensation for loss of earning power 1,00,000 Nil Towards functional disability Nil 52,000 Total :
7,35,000 (restricted to Rs.5,00,000/-) 1,06,265
3. The learned counsel for the appellant submitted that the Tribunal has gone wrong in ignoring the functional disability that the claimant had suffered and has awarded a mere Rs.52,000/- (at Rs.1,000/- per percentage of injury/disability). He added that the victim had suffered fracture to his left femur and his sciatic nerve has become dysfunctional owing to which movement of left foot is impaired. He submitted that in discounting compensation paid on the head of loss of earning capacity, the Tribunal's approach has fallen in error. Further, the Tribunal has also ignored to award adequate compensation on non-pecuniary heads such as pain and suffering, loss of amenities, need for assistance etc., He relied on the authorities in Jakir Hussein Vs Sabir and others [2015(1) TN MAC 321(SC)], Divisional Manager, National Insurance Co. Ltd., Vs Irayya & another [2015(1) TN MAC 748 (DB) (Kar.)], Branch Manager, United India Insurance Co., Ltd., Vs M. Ethirajulu [2015(2) TN MAC 454 (DB)]
4. Per contra, the learned counsel for the insurance company argued that the claimant/appellant was a workman and therefore he is not eligible to claim anything more than what is permissible under the Workmen Compensation Act. Even if he had an option of moving the Tribunal constituted under the M.V. Act, still the Tribunal cannot give him anything more than what he is eligible to obtain under the Workmen Compensation Act. Secondly he argued that the doctor's evidence does not disclose whether injuries suffered by the appellant was to his whole body or not and in the absence of any medical evidence to support functional disability it is not given to the Court to arbitrarily determine any
functional disability. Thirdly, he argued, the Tribunal had made a categorical finding that the appellant was not entitled to any claim on the head of loss of earning capacity. In this regard, the Tribunal has had the advantage of observing the claimant during enquiry in weighing the need to compensate the appellant on the head of loss of earning capacity.
5. I find the contentions of the respondent unconvincing. The appellant as a workman has been given the option to choose between the Tribunal constituted under Workmen Compensation Act and the MACT. Once the choice is made the law as applicable to the forum chosen will have its unrestricted operation and hence it is impermissible to telescope the mode of assessing compensation prescribed under one in substitution of the principles applicable to the other.
6. The authority in Rajkumar Vs. Ajay Kumar and another [(2011) ACJ 1] has cast a duty on the Court not fall back mechanically on the doctor's opinion as to the percentage of injury but to assess and quantify the same in terms of its impact on a accident-victim's means of livelihood. This duty does not depend on the awareness of the claimant before the Tribunal to seek it, but on the Tribunal to engage itself in remedying the situation that has disrupted the life of the victim. In this case, there are major injuries to the left pelvic region of the appellant marked by multiple fractures of bones. Besides the sciatic nerve has been irretrievably damaged and the doctors have opined that his movement of the left leg has been limited to 60 degrees as against the normal movement of 120 degrees.
Not one of the nature of the injuries suffered by the victim or the consequent impact they left on him are disputed or disproved. The fact that the appellant was a cleaner at the relevant time too is not in dispute. The nature of the avocation that the appellant was engaged in could not be continued by him given the fact that his left leg has been substantially impaired. Compensation is awarded for the loss suffered in assessing which the victim's potential for alternative avocation can be a factor but not a decider. Taking all material factors into consideration this Courts holds that the nature of injuries suffered by the appellant has left him functionally disabled and the same is determined at 75%.
7. The appellant was 29 years old at the time of accident and his notional income can be fixed at Rs.2,500/- p.m. The appropriate multiplier being 17, the total compensation payable on the head of functional disability of the appellant is (Rs.2,500 x 12 x 17 x 75%) is Rs. 3,82,500/-. Compensation for pain and suffering is fixed at Rs.1,00,000/- and towards amenities Rs.20,000/- is awarded. Towards loss of earning determined for six months Rs.15,000/- is awarded. Compensation on other heads already awarded is retained. The amount payable on different heads consequent to the enhancement now made is as below:
Heads Enhanced Compensation (Rs.) Towards functional disability 3,82,500 Pain and suffering 1,00,000 Amenities 20,000 Loss of earning (for six months) 15,000 Transportation 5,000 Extra nourishment 5,000 Medical Expenses 44,265 Total :
5,71,765
8. In the result this appeal is allowed and the compensation payable to the appellant is enhanced to Rs.5,71,765/-, and the second respondent/insurance company is directed to deposit the same with interest at 7.5% p.a., less if any already deposited, within a period of four weeks from the date of receipt of a copy of this order, and on such deposit, the appellant/claimant is entitled to withdraw the same forthwith. The appellant is directed to pay additional court fee on the enhanced portion of the award. No costs.
Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar ds To:
1. The Motor Accidents Claims Tribunal, Fast Track Court, Namakkal.
2. The Record Keeper, VR Section, High Court, Madras.
+1cc to Mr.R.Nalliyappan, Advocate, S.R.No.45624 C.M.A.No.112 of 2010 KS(CO) CA(10/08/2017)