K. Ramesh @ Rajendran v. New India Assurance Co Ltd,L. Senthil
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.12.2020
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.M.A.No.2394 of 2014 K.Ramesh @ Rajendran ..Appellant/Petitioner Vs.
1.L.Senthil 2.The New India Assurance Co. Ltd.
Represented by its Divisional Officer Motor 3rd party claims cell No.69/70, Sheikpet nadu street Kancheepuram 631 501.
..Respondents/Respondent Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 06.10.2012 made in M.C.O.P.No.279 of 2009 on the file of Motor Accident Claims Tribunal, Principal Sub-Court, Chengalpattu.
For Appellant : Dr.S.S.Swaminathan For R2 : Ms.G.Sukumari
J U D G M E N T
This matter is heard through "Video-Conferencing". The Civil Miscellaneous Appeal is filed for enhancement of compensation granted by the Tribunal in the award dated 06.10.2012 made in M.C.O.P.No.279 of 2009 on the file of Motor Accident Claims Tribunal, Principal Sub-Court, Chengalpattu. 2.The appellant is claimant in M.C.O.P.No.279 of 2009 on the file of Motor Accident Claims Tribunal, Principal Sub-Court, Chengalpattu. He filed the said claim petition claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained by him in the accident that took place on 02.09.2009.
3.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the Tata sumo belonging to the 1st respondent and directed the 2nd respondent/Insurance Company being insurer of the said Tata sumo to pay a sum of Rs.3,06,500/- as compensation to the appellant. 4.Not being satisfied with the amounts awarded by the Tribunal, the appellant has come out with the present appeal seeking enhancement of compensation.
5.The learned counsel appearing for the appellant contended that in the accident, the appellant suffered fractures of right femur, proximal tibia right, bimalleolar right ankle and due to fractures, he lost his earning capacity. The appellant examined the Doctor as P.W.2 to prove the nature of injuries. P.W.2/Doctor examined the appellant and certified that the appellant suffered 100% disability. The Tribunal without giving any reason reduced the percentage of disability to 73% and granted compensation only by adopting percentage method. The appellant was the driver-cum-owner of the lorry bearing Registration No.TN-21L-9646 viz., Bala Vinayagar and to prove the same, the appellant marked the driving license as Ex.P6. Due to the injuries, fractures and disability suffered, the appellant cannot continue his avocation as driver.
The Tribunal ought to have adopted multiplier method and granted compensation separately for disability and loss of earning power. At the time of accident, the appellant was earning a sum of Rs.10,000/- per month. He has taken treatment as in-patient in Government General Hospital, Chennai, from 02.09.2009 to 09.10.2009, 23.03.2010 to 08.05.2010, 20.08.2010 to 04.09.2010, 07.11.2011 to 21.11.2011, on four spells, for more than 120 days. The amounts granted by the Tribunal towards loss of income, loss of amenities and attendant charges are meagre. The Tribunal ought to have granted compensation towards future medical expenses for removal of plates and prayed for enhancement of compensation. 6.
Per contra, the learned counsel appearing for the 2nd respondent/Insurance Company contended that the appellant failed to prove that he was owner-cum-driver of the lorry. The appellant has also failed to prove that he suffered functional disability and lost earning power. P.W.2/Doctor assessed the disability of the appellant for two parts of the body. The Tribunal considering the evidence of P.W.2/Doctor and disability certificate, applied formula and fixed disability of the appellant at 73% and granted compensation by adopting percentage method, which is correct. The amounts granted under different heads are not meagre.
for enhancement of compensation and prayed for dismissal of the appeal.
7.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the 2nd respondent/Insurance Company and perused the entire materials on record.
8.From the materials on record, it is seen that it is the case of the appellant that he is the owner-cum-driver of the lorry viz., Bala Vinayagar and he marked the driving license as Ex.P2 to prove that he is a driver. The appellant has not produced any R.C. Book stood in his name. The appellant claimed that he was earning a sum of Rs.10,000/- per month. He failed to substantiate the same. The accident is of the year 2009 and hence, a sum of Rs.6,500/- per month is fixed as notional income of the appellant. From the evidence of appellant as well as P.W.2/Doctor, it is seen that in the accident, the appellant suffered multiple fractures and underwent surgeries, he has taken treatment in Government General Hospital, Chennai as inpatient from 02.09.2009 to 09.10.2009, 23.03.2010 to 08.05.2010, 20.08.2020 to 04.09.2010, 07.11.2011 to 21.11.
2011, on four spells, for more than 120 days, skin grafting was done, plates and screws were fixed. P.W.2/Doctor deposed that the appellant cannot continue his work as driver. But P.W.2/Doctor has not deposed that the appellant cannot do any work and he is totally disabled. Considering the evidence of P.W.2/Doctor and materials on record, the disability assessed by P.W.2/Doctor is converted into whole body and the disability is fixed at 35% for loss of earning power. This Court is of the view that it is a fit case for adopting multiplier method. The appellant was aged 30 years at the time of accident. As per the judgment of the Hon'ble Apex Court reported in 2009 (1) TNMAC 1 SC [Sarla Verma & Others vs. Delhi Transport Corporation & another] the multiplier applicable is 17.
Thus, the compensation awarded by the Tribunal towards loss of income is modified to Rs.4,64,100/- (Rs.6,500/- X 12 X 17 X 35/100). Considering the period of treatment taken by the appellant, the amounts awarded by the Tribunal towards transportation and attendant charges are enhanced to Rs.20,000/- and Rs.25,000/- respectively. Though the appellant has taken treatment in Government General Hospital, Chennai, as inpatient, he would have spent some amount towards medical expenses. The Tribunal has granted only a sum of Rs.7,500/- as per Ex.P11 for medical expenses incurred by him for taking scan. Considering the period of treatment, a sum of Rs.25,000/- is awarded towards medical expenses. The Tribunal has not awarded any compensation towards extra nourishment and hence, a sum of Rs.20,000/- is awarded towards extra nourishment.
towards future medical expenses. The amounts awarded by the Tribunal under all other heads are not meagre and hence, the same are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows:
S.No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted or reduced 1.
Loss of income 1,46,000 4,64,100 Enhanced 2.
Transportati on 10,000 20,000 Enhanced 3.
Medical expenses 7,500 25,000 Enhanced 4.
Damage to clothes 1,000 1,000 Confirmed 5.
Damage to watch and cell phone 4,000 4,000 Confirmed 6.
Pain and suffering 50,000 50,000 Confirmed 7.
Loss of amenities and enjoyment in life 75,000 75,000 Confirmed 8.
Attendant charges 13,000 25,000 Enhanced 9.
Extra nourishment - 20,000 Granted Total 3,06,500 6,84,100 Enhanced by Rs.3,77,600 /- 9.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.3,06,500/- is hereby enhanced to Rs.6,84,100/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2nd respondent/Insurance Company is directed to deposit the award amount now determined by this Court along with interest and costs, less the amount already
deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw the award amount now determined by this Court along with interest and costs, less the amount if any, already withdrawn. No costs.
-s/d- Assistant Registrar(CS-IX) True Copy Sub-Assistant Registrar kj To 1.The Motor Accident Claims Tribunal Principal Subordinate Judge Chengalpet.
Copy to The Section Officer V.R.Section High Court, Chennai.
+1 CC to Mr.S.S. Swaminathan, Advocate Sr. 42325 +1 CC to Mr.R. Sivakumar, Advocate sr 42165.
C.M.A.No.2394 of 2014 VGII(CO) SP(13/09/2021)