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2012 DIGILAW 3616 (MAD)

United India Insurance Co. Ltd. , T. Nagar, Chennai v. V. Dineshkumar

2012-08-17

R.BANUMATHI, R.SUBBIAH

body2012
JUDGMENT R.SUBBIAH, J. - 1. This appeal arises out of an award (24.07.2006) passed by the Motor Accidents Claims Tribunal (Fast Track Court No.I), Chennai, in M.C.O.P.No. 5035 of 2000. 2. Appellant is the second respondent and first respondent is the claimant before the Tribunal. Second respondent, the owner of the vehicle, remained ex parte before the Tribunal. 3. Brief facts are as follows: First respondent-claimant sustained grievous injuries in a motor vehicle accident, which occurred on 19.11.2000 involving a vehicle bearing registration No.TN-09-L-6826, owned by the second respondent and insured with the appellant insurance company, for which, he made a claim before the Tribunal for a sum of Rs.26.26 lakhs as compensation. The Tribunal, after finding that the accident was caused due to negligence of the driver of the second respondent, by order dated 24.07.2006, quantified the compensation and passed an award for Rs.11,00,000/-. Questioning the said finding, the insurance company has filed the present appeal stating that the amounts awarded by the Tribunal are excessive. 4. Inasmuch as the issue is confined only to the quantum of compensation, it is not necessary to traverse the factual details relating to the accident and the conclusion arrived at on the negligence aspect holding that the driver alone was responsible for the accident. So far as the quantum of compensation is concerned, it is the case of the 1st respondent-claimant that on account of the accident, he sustained multiple fracture in his left leg, which resulted in amputation of his left leg below the knee. He was working as computer operator at the time of accident on a monthly salary of Rs.6,500/-. On account of the disability suffered by him, now he cannot drive either two wheeler or car and therefore, he has to necessarily engage an auto or car for going out. On account of amputation of left leg, his marital prospects are also affected. Thus, he claimed for a sum of Rs.26.26 lakhs as compensation. 5. In order to prove the claim, on the side of the 1st respondent, three witnesses were examined as P.Ws.1 to 3 and 18 documents were marked as Exs.P-1 to P-18. On the side of the appellant insurance company, neither witness was examined nor document was marked. The Tribunal, after analysing the entire evidence, passed an award for a sum of Rs.11,00,000/-. 6. On the side of the appellant insurance company, neither witness was examined nor document was marked. The Tribunal, after analysing the entire evidence, passed an award for a sum of Rs.11,00,000/-. 6. It is the submission of the learned counsel for the appellant insurance company that the Tribunal, while calculating the compensation, has fixed the disability suffered by the victim on account of amputation of left leg at 70%. Thereafter, it has awarded a sum of Rs.11,00,000/- as total compensation under the following heads: Rs. Permanent disability 2,00,000/-Pain and suffering 2,00,000/- Medical expenses 1,18,600/- Extra nourishment 31,400/-Transport charges 50,000/-Loss of earning power 4,00,000/- Expenses towards artificial leg 1,00,000/- Total 11,00,000/- 7. Now, it is the submission of the appellant that the amount awarded under each head is highly exorbitant. It is the further submission that the Tribunal, after having awarded a sum of Rs.2 lakhs towards permanent disability, ought not to have awarded another Rs.4 lakhs towards loss of earning power since awarding amount under both heads would amount to double compensation. Therefore, the amount awarded under the head of loss of earning power is liable to be set aside. That apart, under Schedule 1 of Workmen's Compensation Act, for amputation of leg below the knee, the disability was only fixed at 50%, whereas in the instant case, the Tribunal has fixed 70%. Therefore, by reducing the disability at 60%, the award amount has to be modified. 8. On the contrary, it is the submission of the 1st respondent-claimant that in view of the judgment rendered by the Hon'ble Supreme court in the case B.Kothandapani .vs. Tamil Nadu state Transport Corporation Ltd., (2011 ACJ 1971), awarding of amount under the head of permanent disability and loss of earning power is sustainable. Relying upon the judgment in the case of Govind Yadav ..vs. New India Insurance Company Limited (2011(2) TN MAC 661 (SC), it is the further submission of the 1st respondent that the Apex Court upheld 70% disability fixed by the Tribunal for the amputation of left leg. Therefore, there is no need to reduce the disability fixed by the Tribunal in this case. 9. Keeping in mind the submissions made by both sides, we have carefully gone through the entire materials available on record. It is not in dispute that the victim was working as a computer operator at the time of accident. Therefore, there is no need to reduce the disability fixed by the Tribunal in this case. 9. Keeping in mind the submissions made by both sides, we have carefully gone through the entire materials available on record. It is not in dispute that the victim was working as a computer operator at the time of accident. According to the learned counsel for the appellant insurance company, the disability suffered by the victim would not affect the loss of earning power of the claimant and under such circumstances, Rs.4,00,000/- awarded by the Tribunal under the head 'loss of earning power' is highly exorbitant. But, we are of the opinion that the disability suffered by the 1st respondent-claimant on account of amputation of left leg below the knee would definitely have a bearing in his free movement, which will consequently have an effect to certain extent in affecting his loss of earning power. Therefore, we do not find any infirmity in awarding amount under the head 'loss of earning power'; however, considering the facts and circumstances, we are of the opinion that Rs.4,00,000/-awarded under the head 'loss of earning power' appears to be on the higher side. Taking into consideration the fact that 1st respondent-claimant cannot do work as he was doing before the accident, certainly he is entitled to compensation under this head. In our considered opinion, a sum of Rs.3,00,000/- could be awarded as just and proper compensation under the said head . Hence, the sum of Rs.4,00,000/-awarded by the Tribunal under the head 'oss of earning power' is hereby reduced to Rs.3,00,000/-. Though the learned counsel for the appellant submitted that awarding of amount under the head of loss of earning power and permanent disability would amount to double compensation, in view of the judgment rendered by the Hon'ble Apex court reported in 2011 ACJ 1971 (supra), awarding the amount under both heads is sustainable. The relevant paragraph from the said judgment is extracted hereunder: "12) It is true that the compensation for loss of earning power/capacity has to be determined based on various aspects including permanent injury/disability. At the same time, it cannot be construed that compensation cannot be granted for permanent disability of any nature. The relevant paragraph from the said judgment is extracted hereunder: "12) It is true that the compensation for loss of earning power/capacity has to be determined based on various aspects including permanent injury/disability. At the same time, it cannot be construed that compensation cannot be granted for permanent disability of any nature. For example, take the case of a non-earning member of a family who has been injured in an accident and sustained permanent disability due to amputation of leg or hand, it cannot be construed that no amount needs to be granted for permanent disability. It cannot be disputed that apart from the fact that the permanent disability affects the earning capacity of the person concerned, undoubtedly, one has to forego other personal comforts and even for normal avocation they have to depend on others. In the case on hand, two doctors had explained the nature of injuries, treatment received and the disability suffered due to partial loss of eye-sight and amputation of middle finger in the right hand and we have already adverted to the avocation, namely, at the time of accident, he was working as Foreman in M/s Armstrong Hydraulics Ltd. Taking note of his nature of work, partial loss in the eye sight, loss of middle finger of the right hand, it not only affects his earning capacity but also affects normal avocation and day-to-day work. In such circumstance, we are of the view that the Tribunal was fully justified in granting a sum of Rs.1,50,000/- towards permanent disability." 10. In view of the dictum laid down in the above decision, we are of the opinion that 1st respondent-claimant is entitled for compensation under the head 'permanent disability also. However, we find that Rs.2,00,000/-awarded by the Tribunal under the head 'permanent disability' is extremely on the higher side. Hence, the same is hereby reduced to Rs.1,00,000/, which, in our view, could be just and proper compensation under the head 'permanent disability'. Further, we find that Tribunal has awarded Rs.1,00,000/- for fixing artificial leg. Considering the fact that the 1st respondent would incur expenses for replacing the artificial leg and maintaining the same for long years throughout his life, a sum of Rs.1,00,000/-awarded by the Tribunal under the head needs proper enhancement. Hence, the same is hereby enhanced to Rs.2,00,000/-by adding further sum of Rs.1,00,000/-. Considering the fact that the 1st respondent would incur expenses for replacing the artificial leg and maintaining the same for long years throughout his life, a sum of Rs.1,00,000/-awarded by the Tribunal under the head needs proper enhancement. Hence, the same is hereby enhanced to Rs.2,00,000/-by adding further sum of Rs.1,00,000/-. Further, the victim was aged about 26 years at the time of accident and he is not married. The Tribunal has not awarded any amount for loss of marital prospects. Under such circumstances, a sum of Rs.1,00,000/- is hereby awarded under the said head. The break up details of the modified award are as follows: Rs. Permanent disability 1,00,000/- Pain and suffering 2,00,000/- Medical expenses 1,18,600/- Extra nourishment 31,400/- Transport charges 50,000/- Loss of income 3,00,000/- Expenses towards artificial leg 2,00,000/- Loss of marital prospects 1,00,000 Total 11,00,000/- 11. Since the modified award amount tallies with the amount awarded by the Tribunal, there is no need to interfere with the same. Apart from that, it is the submission of the appellant insurance company that entire amount as awarded by the Tribunal has been deposited and it has also been withdrawn. Under such circumstances, we are not inclined to interfere with the award passed by the Tribunal. In fine, the civil miscellaneous appeal fails and is dismissed. However, there will be no order as to costs.