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2009 DIGILAW 3398 (MAD)

M. Karunakaran v. V. Periasamy & Another

2009-08-27

N.KIRUBAKARAN

body2009
Judgment 1. The claimant aggrieved by the award of Rs.2,35,000/- as against the claim of Rs.9,00,000/- preferred the appeal. 2. The case of the appellant before the Tribunal was that on 24. 1998, when he was driving his auto-rickshaw, another auto belonging to the first respondent driven rash and negligently, dashed against his auto-rickshaw and as a result he sustained injury in the right eye by piercing of glass pieces. He almost lost the vision in the right eye and got strain in the left eye. He also sustained a cut injury in nasal bone and multiple head injury. Hence the claim petition was filed to the tune of Rs.9,00,000/- and the same was resisted by the second respondent-Insurance Company. The first respondent did not contest the claim petition. 3. Before the Tribunal three witnesses were examined by the claimant. The second witness was an eye specialist. Exs.P1 to P3 were marked and no documents were marked and no one was examined on the side of the respondent. 4. On appreciation of pleadings and evidence available on record, the Tribunal awarded a sum of Rs.2,35,000/- in the following manner. 1) Towards Loss of income Rs. 6,000/- 2) Towards Transport and extra Nourishment Rs. 2 ,000/- 3) Towards medical expenses Rs. 10,000/- 4) Towards attendant charge Rs. 2,000/- 5) Towards suffering for loss of vision Rs. 5,000/- 6) Towards pain and suffering Rs. 10,000/- 7) Towards permanent disability Rs. 50,000/- 8) Towards loss of earning power Rs.1,50,000/- Total Rs.2,35,000/- 5. Aggrieved by the lesser amount granted by the Tribunal, the appellant/claimant is before this court for enhancement. 6. Mr. N.M. Muthurajan, learned counsel for the appellant contended that the appellant was an auto-rickshaw driver and his earning was only from the avocation of driving of auto-rickshaw. As a result of the accident the appellant almost lost vision in his right eye. Hence, learned counsel for the appellant submitted that for permanent disability and loss of earning power, the amount given by the Tribunal i.e. Rs.50,000 + 1,50,000/- = 2,00,000/- is a lesser amount. He further submitted that the loss of vision in right eye made him impossible to do his avocation of driving auto-rickshaw. Hence he seeks enhancement in this regard. Towards pain and suffering a sum of Rs.10,000/-was awarded and in this regard also he seeks enhancement. 7. Mr. He further submitted that the loss of vision in right eye made him impossible to do his avocation of driving auto-rickshaw. Hence he seeks enhancement in this regard. Towards pain and suffering a sum of Rs.10,000/-was awarded and in this regard also he seeks enhancement. 7. Mr. M. Vadivel, learned counsel for the first respondent who did not contest the matter before the Tribunal, opposed to enhancement contending that reasonable amount was awarded by the Tribunal and it need not be enhanced. 8. Mr. N. Vijayaraghavan, learned counsel for the second respondent submitted that the amount given under various heads are very reasonable and need not be enhanced. 9. It is an admitted case that the claimant was an auto-rickshaw driver and sustained injury in his right eye. PW2 Doctor also gave disability certificate through Ex.P6 fixing the disability at 30%. Eye is an organ of vision. Since the eye is an important organ of the human body, it plays an important role and especially for a person like appellant whose avocation was auto-driving, any injury caused in the eye should be viewed very seriously and the disability caused to eye should be taken as a special case. Therefore disability for the loss of vision should be fixed more and in consequence the loss of earning power should also be fixed more. P.W.2 Doctor, who is an Eye Surgeon and a competent witness to speak about eye problems deposed as follows: 10. The aforesaid evidence of P.W.2, undoubtedly proved that the claimant almost lost his vision in right eye. His vision is 6/60 and the loss of vision is 55/60. As stated above for any person, eye sight is very important and especially for a driver who is depending upon his sight for avocation. As the claimant had sustained injuries in the eye, it is appropriate to fix loss of earning power at 60%. The aforesaid conclusion is reached by virtue of P.W.2 evidence and Exs.P4, P5 and P6. 11. As far as earning power is concerned, the Tribunal in paragraph 11 of the award discussed about the same and fixed the daily wage of appellant at Rs.100/-. If Rs.100/-is fixed as daily wage, the monthly income would be Rs.3000/-. However an average monthly income was fixed at Rs.1500/-by the Tribunal. The finding in this regard is not sustainable. 11. As far as earning power is concerned, the Tribunal in paragraph 11 of the award discussed about the same and fixed the daily wage of appellant at Rs.100/-. If Rs.100/-is fixed as daily wage, the monthly income would be Rs.3000/-. However an average monthly income was fixed at Rs.1500/-by the Tribunal. The finding in this regard is not sustainable. If the Tribunal came to the conclusion that he was earning Rs.100/-as daily wages, the monthly income should have been fixed at Rs.3000/-. Accordingly this court fixes the monthly income at Rs.3000/-. After deducting a sum of Rs.1000/-towards personal expenses, a sum of Rs.2000/-is taken as loss of income. The annual loss of income would be Rs.2000 X 12 = Rs.24000/-. The age of the claimant at the time of accident was 24 years. According to second schedule, the multiplier to be adopted in this regard is 17. Though the second schedule is not automatically adopted, considering the nature of injury caused in the eye, which is the organ of vision and the nature of avocation done by the claimant, the second schedule of the Motor Vehicles Act is properly applied. 12. Following the judgment of a Division Bench of this Court in United India Insurance Co. Ltd., vs. Veluchamy and Another reported in 2005 ACJ 1483 setting out the parameters as to when the multiplier method can be adopted in the case of injury, the loss of income in this case is calculated as follows: Rs.2000 x 12 x 17 x 60/100 = Rs.2,44,800/-/. Thus the loss of income is Rs.2,44,800/-. 13. As far as the loss of earning at the time of treatment is concerned, a sum of Rs.6000/- was awarded for four months. This court enhances the same to Rs.12000/-. Towards transportation to the hospital was awarded by the Tribunal is Rs.1000/- and the same is confirmed. As far as extra nourishment, only a sum of Rs.1000/- was awarded and this court enhances to Rs.20,000/-. Towards loss of cloth and damage to the properties a sum of Rs.500/- is awarded. For medicines purchased by the claimant a sum of Rs.10,000/- was awarded and the same is confirmed. As far as charges for attendant is concerned a sum of Rs.2000/- was awarded. This court enhances it to Rs.10000/-. 14. In a similar case learned single judge of this court in CMA.No.637 of 2002 dated 18. For medicines purchased by the claimant a sum of Rs.10,000/- was awarded and the same is confirmed. As far as charges for attendant is concerned a sum of Rs.2000/- was awarded. This court enhances it to Rs.10000/-. 14. In a similar case learned single judge of this court in CMA.No.637 of 2002 dated 18. 2008 for loss of vision in eye and towards mental agony awarded a sum Rs.75000/-. Following the said judgment a sum of Rs.75,000/- is awarded towards loss of vision and mental agony. Since the compensation for loss of earning power is given by this court, the question of awarding compensation towards permanent disability does not arise and hence Rs.50000/- awarded in this regard by the Tribunal is deleted. The award of the Tribunal Rs.2,35,000/- is enhanced to Rs.3,73,300/- in the following manner: TAMIL 1) Towards loss of income Rs.2,44,800/- 2) Towards pain and suffering Rs. 75,000/- 3) Towards loss of earning at the time of treatment Rs. 12,000/- 4) Towards transportation to hospital Rs. 1,000/- 5) Towards extra nourishment Rs. 20,000/- 6) Towards loss of cloth and properties Rs. 500/- 7) Expenses Towards purchase of medicines Rs. 10,000/- 8) Towards attendant charges Rs. 10,000/- Total Rs.3,73,300/- 15. The aforesaid amount will carry 9% interest as given by the Tribunal. Accordingly the appeal is partly allowed. However there will be no order as to costs.