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2020 DIGILAW 1169 (MAD)

S. Venkatesan v. S. Sankar

2020-08-04

ABDUL QUDDHOSE

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JUDGMENT : ABDUL QUDDHOSE, J. Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 09.08.2011 made in MACT OP No. 1338 of 2003 on the file of the II Small Causes Court (Motor Accidents Claims Tribunal), Chennai. 1. This appeal has been filed by the claimant seeking enhancement of compensation under the impugned award dated 09.08.2011 passed by the Motor Accidents Claims Tribunal, II Court of Small Causes, Chennai in MCOP No. 1338 of 2003. 2. The appellant/claimant unsatisified with the quantum of compensation awarded by the Tribunal under the impugned award has filed this appeal seeking enhancement. 3. The details of the compensation awarded under the impugned award passed by the Tribunal are as follows:- Heads Amount awarded by the Tribunal Loss of earning power/capacity Rs. 1,15,200 Permanent Disability Rs. 40,000 Loss of income during treatment Rs. 9,000 Transport charges Rs. 1,000 Extra Nourishment Rs. 2,000 Damage to Clothes and articles Rs. 1,000 Medical expenses Rs. 64,000 Pain and sufferings Rs. 25,000 Total Rs. 2,57,200 4. Heard Mr. R. Kalaiarasan, learned counsel for the appellant and Mr. S. Arunkumar, learned counsel for the second respondent. The first respondent remained ex-parte both before the Tribunal and before this Court. 5. This Court has perused the materials and evidence available on record before the Tribunal. 6. The appellant/claimant sustained grievous injuries on 17.01.2003, as a result of an accident caused by a vehicle insured with the second respondent. 7. Before the Tribunal, the appellant/claimant has filed 12 documents Ex.P1 to Ex.P12 and two witnesses were examined on his side viz. the appellant/claimant himself as PW-1 and the Doctor, who examined him viz. Dr. K.J. Mathiazhagan as PW-2. On the side of the second respondent/Insurance company neither any document was filed nor any witness was examined before the Tribunal. 8. As seen from Ex.P6, which is the discharge summary issued by Indian Hospital, Chennai, it reveals that the appellant/claimant was admitted into the said hospital on 18.01.2003 and was discharged only on 27.01.2003. Ex.P6 also reveals that the appellant underwent a surgery on 18.01.2003. As seen from Ex.P6, the said Hospital has diagnosed the appellant/claimant for communicated fracture of shaft Femer (mid 1/3 with lower 1/3) with fracture of upper 1/3 of radius. Ex.P6 also reveals that the appellant underwent a surgery on 18.01.2003. As seen from Ex.P6, the said Hospital has diagnosed the appellant/claimant for communicated fracture of shaft Femer (mid 1/3 with lower 1/3) with fracture of upper 1/3 of radius. The discharge summary (Ex.P6) also reveals that the operation procedure adopted by the hospital was by giving short general anesthesia the appellant was to supine position with AB through Volar Henry’s and approach radius fracture exposed, aligned 7 holed ASIAN DCP was kept and fracture was reduced. Further Ex.P6, Discharge Summary also reveals that under epidural anesthesia, the appellant/claimant in right lateral position through posterio lateral approach, femur fracture site was exposed found communicated with a butterfly fragment. It also reveals that both the proximal and distal fragments learned upto 10mm Nail size measure as 380 mm. Then 380 x 90mm nail was inserted anterogeradely, distally 2 locking screws and proximally one locking screw applied. 9. Ex.P7 is another discharge summary issued by the Indian Hospital, Chennai, which reveals that appellant/claimant was once again admitted into the same hospital on 18.04.2003 and discharged on 19.04.2003. He also underwent another surgery on 18.04.2003. Ex.P7, Discharge summary reveals that operation procedure adopted was that spinal anesthesia incisions over the lateral 1/3rd of thigh, deep fascial incised and 2 distal screws were removed. In the said discharge summary, the appellant/claimant was advised that he can walk cruthches, knee mobilisation exercise and he was advised to remove the sutures on the 10th day. Ex.P10 are the photos of the appellant/claimant which reveals the gravity of the injuries sustained by him on account of the accident. The Doctor of the appellant/claimant, who had examined him and has deposed before the Tribunal as PW-2 has also issued a disability certificate (Ex.P11), which reveals that the appellant/claimant has sustained 60% disability. However, the disability certificate (Ex.P11) does not disclose as to what will be the extent of the functional disability of the appellant/claimant. The Tribunal after considering the evidence and materials available on record has come to the conclusion that the functional disability of the appellant/claimant for the injuries sustained by him as a result of the accident caused by the insured vehicle will be 20%. This Court is in agreement with the said assessment and therefore, there is no scope for any interference with regard to the assessment of functional disability of the appellant/claimant. This Court is in agreement with the said assessment and therefore, there is no scope for any interference with regard to the assessment of functional disability of the appellant/claimant. The appellant/claimant in his claim petition has pleaded that he was aged 31 years working as a Labour Contractor with M/s. Omega Road Transports, Poonamallee, Chennai earning a monthly income of Rs. 12,000/-. However, since the appellant/claimant did not produce any documentary evidence in support of his salary, the Tribunal has fixed the notional income of the appellant/claimant at Rs. 3,000/-. The accident happened in the year 2003. Considering the fact that the appellant/claimant was a Labour Contractor, aged 31 years at the time of the accident, the Tribunal ought to have assessed the monthly income of the appellant at a higher sum. As the appellant/claimant was aged 31 years old and he would have gained some amount of work experience as a Labour Contractor, the assessment of the monthly income by the Tribunal at Rs. 3,000/- is too low. After giving due consideration to the age of the appellant/claimant as well as the year of the accident, this Court is of the considered view that the monthly notional income of the appellant/claimant will have to be assessed at Rs. 4,500/- not at Rs. 3,000/- which has been erroneously assessed by the Tribunal. The Tribunal under the impugned award has calculated the loss of income during the period of treatment of the appellant/claimant only for a period of three months, which is an unreasonable one. In view of the fact that the appellant/claimant had sustained grievous injuries, as indicated earlier which would have certainly immobilised him for a long period of time, this Court deems it fit that six months period will be a reasonable period for the purpose of calculating the loss of income during the period of treatment. Accordingly, based on the assessment of monthly income of the appellant/claimant at Rs. 4,500/- the loss of income during the period of treatment is enhanced from Rs. 9,000/- to Rs. 27,000/- (Rs. 4,500 x 6). 10. The Tribunal has rightly applied 16 multiplier and has also rightly assessed the functional disability of the appellant/claimant. In view of the enhancement of the notional monthly income of the appellant/claimant, the compensation for loss of earning power is enhanced by this Court from 1,15,200/- to Rs. 1,72,800/- (Rs. 9,000/- to Rs. 27,000/- (Rs. 4,500 x 6). 10. The Tribunal has rightly applied 16 multiplier and has also rightly assessed the functional disability of the appellant/claimant. In view of the enhancement of the notional monthly income of the appellant/claimant, the compensation for loss of earning power is enhanced by this Court from 1,15,200/- to Rs. 1,72,800/- (Rs. 4,500/- x 12 x 16 x 20%). 11. Insofar as the other heads of Transportation, extra nourishment medical expenses pain and suffering, disability are concerned, this Court does not find any scope for interference as the same is a just compensation considering the age of the appellant/claimant and the year of the accident. 12. For the foregoing reasons, the compensation awarded by the Tribunal under the impugned award is modified in the following manner:- Heads Amount awarded by the Tribunal Amount awarded by this Court Loss of earning power/capacity Rs. 1,15,200 Rs. 1,72,800 Permanent Disability Rs. 40,000 Rs. 40,000 Loss of income during treatment Rs. 9,000 Rs. 27,000 Transport charges Rs. 1,000 Rs. 1,000 Extra Nourishment Rs. 2,000 Rs. 2,000 Damage to Clothes and articles Rs. 1,000 Rs. 1,000 Medical expenses Rs. 64,000 Rs. 64,000 Pain and sufferings Rs. 25,000 Rs. 25,000 Total Rs. 2,57,200 Rs. 3,32,800 13. In the result, this appeal filed by the Appellant/claimant stands partly allowed by enhancing the compensation from 2,57,200/- to Rs. 3,32,800/-. No costs. 14. The second respondent/Insurance Company is directed to deposit the entire award amount awarded by this Court together with interest at 7.5% p.a. from the date of claim petition till the date of realization, less the amount, if any, already deposited to the credit of M.C.O.P. No. 1338 of 2003, on the file of the Motor Accidents Claims Tribunal, (II Small Causes Court), Chennai, within a period of four weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the Tribunal is directed to transfer the award amount directly to the bank account of the appellant/claimant, through RTGS, within a period of two weeks thereafter. The requisite Court fee, if any has to be paid by the appellant before receiving the copy of this Judgment.