New India Assurance Co. Ltd Chennai v. N. Santhanam
2013-03-27
C.T.SELVAM
body2013
DigiLaw.ai
Judgment :- 1. These Civil Miscellaneous Appeals arise against the judgment and decree passed by Motor Accidents Claims Tribunal, V Judge, Court of Small causes, Chennai, in MACTOP.No.4044 of 2008 dated 21.03.2011. 2. The appellant in C.M.A.No.2103/2011 (hereinafter referred to as the insurer) is the insurer of the offending vehicle, while the appellant in C.M.A.No.2482/2011 (hereinafter referred to as the claimant) is the claimant. 3. The claimant was riding pillion on motorcycle bearing registration No. TN-07-AZ-9329, at about 06.40.p.m on 22.03.2006. Such vehicle was insured with the insurer. Owing to rash and negligent driving thereof, the same hit a cyclist resulting in the claimant falling down and sustaining injuries. Claimant sought compensation in a sum of Rs.10,00,000/-. 4. Before the Tribunal, the appellant/claimant examined three witnesses and nineteen exhibits were marked. None were examined on behalf of the respondents nor were any exhibits marked. 5. On appreciation of materials before it, the Tribunal awarded compensation as follows: The said sum of Rs.8,85,000/- was directed to be paid together with interest at 7.5% per annum from the date of petition till the date of deposit. 6. Learned counsel for the insurer submitted that the tribunal had erred in adopting the multiplier method in awarding compensation. It is his contention that since the claimant had informed of being a web designer in the computer field, there was no proof of loss of employment and loss of total vision in the left eye would not result in his loss of earning capacity. Therefore, at best compensation could be provided for loss of vision in one eye in keeping with the Workmen Compensation Act. Towards, supporting the contention that loss of vision in one eye would not affect the earning capacity of a person engaged in the computer field, an unreported decision of this court in C.M.A.No.3884 of 2004 dated 27.09.2010 is relied upon by learned counsel for insurer. A decision of this court reported in J. Ravi Chandran v. Tamilnadu State Transport Corporation, 2006 ACJ 1365 informs that guidance could be taken from the schedules provided under the Workmen's Compensation Act towards just compensation payable to the injured, under the Motor Vehicles Act. 7. Learned counsel for claimant submitted that the tribunal had fallen into error in adopting multiplier only to the extent of 70% going by the disability spoken to by P.W.2 and P.W.3 Doctors.
7. Learned counsel for claimant submitted that the tribunal had fallen into error in adopting multiplier only to the extent of 70% going by the disability spoken to by P.W.2 and P.W.3 Doctors. Loss of vision in one eye was a serious affair which merited acceptance of 100% loss of earning power. He would further contend that no provision stands made towards future prospects. Learned counsel relied on decision reported in Dhian Chand Singla v. Joga Singh and Others, 2011 (3) T.A.C. 70 (P&H), to submit that mere fact that the claimant continued in employment would not disentitle him to get compensation. It was submitted that the claimant has deposed to his having relinquished employment three years after the accident owing to inability to continue. This was further reason why compensation ought to have been awarded for 100% disability and provision for future prospects also ought to have been made. 8. In reply learned counsel for insurer submitted that in the instant case, there was no evidence of loss of earning. Only a false plea of continued stress and consequential loss of employment has been pleaded three years after the accident. While the claimant has produced his order of appointment he has not produced any order of termination. The claimant ought to have been compensated only for the physical discomfort suffered by him. 9. We have considered the rival submissions. 10. The claimant has lost total vision of the left eye. He has been hospitalized thrice and artificial eye had also been implanted. Doctor-P.W.2 has assessed the disability towards loss of vision at 40% while P.W.3-Doctor has assessed the disability owing to the loss of tooth and facial disfigurement at 30%. Though cited before us for a different purpose, we would touch upon the decision in Dhian Chand Singla v. Joga Singh and Others, 2011 (3) T.A.C. 70 (P&H) for therein, we find reference to decision of the House of Lords in Vale v. William Huns and Sons Limited, 1912 A.C. 496. The House of Lords held:"... that the incapacity of work included inability to work or in other words, there is incapacity for work when a man has a physical defect which makes his working un-saleable in any market reasonably accessible to him.
The House of Lords held:"... that the incapacity of work included inability to work or in other words, there is incapacity for work when a man has a physical defect which makes his working un-saleable in any market reasonably accessible to him. Applying the same logic, a person who has suffered an injury may not come by immediate loss if he is retained in the same employment and does not lose his job, but in his own saleability elsewhere as a fresh recruit to a new employer, he may come by a serious handicap. That shall be a justification enough to provide for compensation in such types of cases. "Even though there is no specific proof that the claimant has lost employment, the loss of vision in one eye certainly would effect his ability as fresh recruit to a new employer. It can only be hoped that the facial disfigurement suffered by him would not add to his woes in this regard. The tribunal has reasoned that the claimant would be able to carry on his avocation with one eye but his efficacy would be compromised owing to excess strain suffered by the remaining eye. Such reasoning and placement of loss of earning power at Rs.3,750/- per month is justified. However, we consider it necessary that the claimant separately be afforded compensation towards disfigurement to the face suffered by him as also for loss of amenity of the left eye. As the claimant was aged 30 years, the correct multiplier would be 17. The tribunal has not afforded any compensation towards loss of amenity which this court assesses at Rs.1,00,000/-. The grant towards pain and suffering may be enhanced to Rs.50,000/-and that towards temporary loss of income to Rs.50,000/-. We find reasonable the award under other heads. Compensation payable would be as follows: 11. In the result, the Civil Miscellaneous Appeal preferred by the insurer in C.M.A.2103/2011 is dismissed and the appeal preferred by the claimant in C.M.A.No.2482/2011 is allowed. The compensation awarded by the tribunal is enhanced to Rs.10,56,700/-. The second respondent insurance company is directed to deposit the enhanced award amount with interest at 7.5% per annum from date of petition less that already deposited within a period of six weeks from the date of receipt of a copy of this judgment.
The compensation awarded by the tribunal is enhanced to Rs.10,56,700/-. The second respondent insurance company is directed to deposit the enhanced award amount with interest at 7.5% per annum from date of petition less that already deposited within a period of six weeks from the date of receipt of a copy of this judgment. The claimant shall pay the necessary additional court fee within a period of two weeks from the date of receipt of a copy of this judgment. The appellant/claimant shall be entitled to withdraw the compensation sum on due application. No costs. Connected miscellaneous petition is closed.