Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 1688 (MAD)

NATIONAL INSURANCE CO. LTD. v. C. RAMESH BABU

2013-04-17

C.T.SELVAM

body2013
JUDGMENT : C.T. Selvam, J. 1. These civil miscellaneous appeals arise against the judgment and decree passed by the Motor Accidents Claims Tribunal, Second Judge, Court of Small Causes, Chennai in M.A.C.T.O.P. No. 98 of 2006 on 16.8.2011. 2. The appellant in C.M.A. No. 736 of 2012 (hereinafter referred to as 'the insurer') is the insurer of the offending vehicle, while the appellant in C.M.A. No. 859 of 2012 (hereinafter referred to as 'the claimant') is the claimant. 3. At about 0800 hours on 12.12.2003, when the claimant tried to cross the road at Dr. Radhakrishnan Salai, Chennai, an autorickshaw bearing registration No. TN 09-J 8643 hit the claimant due to which he sustained grievous injuries. The claimant sought compensation of Rs. 10,00,000. 4. Before the Tribunal, the appellant-claimant examined two witnesses and 22 exhibits were marked. Respondent insurance company examined one witness and marked Exhs. R1 and R2. 5. The claimant suffered a comminuted fracture of lateral condyle of right tibia resulting in removal of a piece of bone leaving a dent in the tibial condyle articular surface. The joints were cracked and space between them was abnormal. As a result, the claimant suffered swelling of the knee, joint pain and found it difficult to stand and climb staircases. Holding that the disability suffered by the claimant would have an impact on his earning capacity, the Tribunal took the same to be 30 per cent as against the assessment of 40 per cent by PW 2, doctor, and relating such disability to the whole body held that the loss of earning capacity would be 10 per cent. Taking the monthly earnings of the claimant to be Rs. 21,000, it awarded compensation towards loss of earning capacity and further awarded compensation as follows : Loss of earning capacity (Rs. 21,000 x 12 x 11 x 10%) Rs. 2,77,200 Loss of income during treatment period Rs. 63,000 Transport charges Rs. 2,100 Extra nourishment Rs. 2,000 Damage to clothes and articles Rs. 1,000 Medical expenses Rs. 18,000 Pain and suffering Rs. 25,000 Total Rs. 4,08,300 The said sum of Rs. 4,08,300 was directed to be paid together with interest at 7.5 per cent per annum from the date of petition till the date of deposit. 6. The learned counsel for the claimant submitted that the Tribunal had erred in taking the loss of earning capacity only to be 10 per cent. 25,000 Total Rs. 4,08,300 The said sum of Rs. 4,08,300 was directed to be paid together with interest at 7.5 per cent per annum from the date of petition till the date of deposit. 6. The learned counsel for the claimant submitted that the Tribunal had erred in taking the loss of earning capacity only to be 10 per cent. Since the claimant was an advocate, he would have to move from court to court and thus the injury suffered by him had rendered it inconvenient for him to move about. The injury suffered by the claimant resulted in constant swelling of the knee and joint pain which besides making it difficult for him to move also did not allow him to stand for long. In fact, the claimant had to wear a kneecap for stability of the right knee. Learned counsel would submit that the percentage of disability ought to have been placed much higher. He submitted that the Tribunal ought to have accepted the contention of the claimant of earning a sum of Rs. 25,000 per month. Learned counsel further submitted that the Tribunal had erred in not allowing any sum towards future medical expenses. 7. Learned counsel for insurer submitted that Tribunal was right in holding the disability suffered by the claimant at 10 per cent as against the disability assessed by PW 2, doctor, at 40 per cent. Learned counsel would submit that Tribunal has rightly fixed the monthly income of the claimant at Rs. 21,000 taking the annual income mentioned by the claimant in the year 2003. He further submitted that the Tribunal was right in not awarding any sum towards future medical expenses. The claimant was an advocate of the insurance company and subsequent to the accident, the claimant had been entrusted with more cases resulting in higher earnings to him. Learned counsel for insurance company submitted that the claimant had suffered only one fracture and PW 2, doctor, would indicate that the only disability suffered by the claimant was that in rotation of the right knee. He would further submit that it was not necessary for the claimant to undergo any operation as it was not necessary to remove the screws fixed at the time of his operation. The claimant could not seek to make windfall gains out of accident suffered by him. 8. He would further submit that it was not necessary for the claimant to undergo any operation as it was not necessary to remove the screws fixed at the time of his operation. The claimant could not seek to make windfall gains out of accident suffered by him. 8. Though very many judgments have been placed before us, we do not consider it necessary to discuss the same in detail. We may only state that such decisions have been placed before us towards informing that the effect of the disability suffered on the earning capacity of the individual is to be considered, compensation is to be provided towards loss of amenities and also for future medical expenses in a fit case. Further, a person continuing in service would not be reason enough to reduce the quantum of compensation and the wisdom of a person in taking medical insurance cannot act to his detriment in a claim for compensation under Motor Vehicles Act. On consideration of rival submissions, this court finds that there is no reason why the assessment of disability at 40 per cent by PW 2, doctor, is not to be accepted particularly where there is no contra evidence. Given the occupation of the claimant and nature of injury suffered, we would hold that in the instant case the loss of earning capacity would be equal to the percentage of disability. Even if we accept the submission that subsequent to the accident, the appellant had entrusted more cases to the claimant, we cannot lose sight of the fact that as an advocate the claimant would be making earnings not only through the appellant but also through other clientele. The accident would have a deleterious effect in this regard and it would be reasonable to accept the gross monthly earnings of the claimant which has been shown to be Rs. 25,000. As the estimate of future medical expenses stands provided by Exh. PI4, doctor attached to a reputed hospital, it would be reasonable to award compensation thereunder. Considering the nature of injury loss of earnings may be provided for a period of 6 months. We find no error in the grant for medical expenses as borne out by bills. The reimbursement of medical expenses is pursuant to an independent contract entered into between the claimant and insurance company. Considering the nature of injury loss of earnings may be provided for a period of 6 months. We find no error in the grant for medical expenses as borne out by bills. The reimbursement of medical expenses is pursuant to an independent contract entered into between the claimant and insurance company. Settlement of a claim thereunder can have no bearing on the right of the claimant to seek compensation towards medical expenses in a claim under the Motor Vehicles Act. In saying so we would follow Helen C. Rebello v. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC). This court finds the award justified under the other heads. Compensation payable would be as follows : Loss of earnings (Rs. 25,000 x 12 x 11 x 40 per cent) Rs. 13,20,000 Loss of income during treatment for six months (Rs. 25,000 x 6) Rs. 1,50,000 Loss of amenities Rs. 50,000 Future medical expenses Rs. 50,000 Transport charges Rs. 2,100 Extra nourishment Rs. 2,000 Damage to clothes and articles Rs. 1,000 Medical expenses Rs. 18,000 Pain and suffering Rs. 25,000 Total Rs. 16,18,100 Rounded off to Rs. 16,18,000 9. In the result, the civil miscellaneous appeal preferred by the insurer in C.M.A. No. 736 of 2012 is dismissed and the appeal preferred by the claimant in C.M.A. No. 859 of 2012 is allowed. The compensation awarded by the Tribunal is enhanced to Rs. 16,18,000. The insurance company is directed to deposit the enhanced award amount with interest at 7.5 per cent per annum from the 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 2 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.