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2021 DIGILAW 1302 (MAD)

R. Gangadharan S/o. Raj v. Sadanand S/o. Sir Rang

2021-04-09

R.SUBBIAH, S.KANNAMMAL

body2021
JUDGMENT : R. SUBBIAH, J. This matter is heard through Video Conferencing. 2. Not being satisfied with the quantum of compensation awarded by the Tribunal in and by its judgment and decree dated 12.11.2019 passed in M.C.O.P.No.7123 of 2013 on the file of IV Small Causes Court, Chennai, appellant/claimant has filed the present appeal. 3. For the sake of convenience, the appellant herein is referred to as ‘claimant’ and the second respondent is referred to as ‘Insurance Company’. 4. The brief facts of the case are as follows: On 20.02.2013 at about 11.45 p.m., while the claimant was on his duty as a cleaner in a lorry bearing Registration No.TN-04-B-5868, which was proceeding on the Redhills-Karanodai Joint Road, another Lorry bearing Registration No.KA-39-5387, belonging to first respondent and insured with the Insurance Company, came in a rash and negligent manner and dashed against the Lorry in which the claimant was travelling, as a result of which the claimant sustained grievous injuries viz., crush injuries over his right leg, right femur, head, left leg and multiple injuries all over the body. Immediately, the claimant was admitted at Government Stanley Hospital, wherein his right leg was amputated. Hence, the claimant filed the claim petition seeking compensation in a sum of Rs.35,00,000/-. 5. Resisting the claim, the Insurance Company had filed a detailed counter inter alia stating that the accident had not occurred in the manner as projected by claimant. They further denied the age, occupation and income of the claimant. 6. To prove his claim, before the Tribunal, the claimant examined himself as PW-1 besides examining one Seenivasan as PW-2 and marked 12 documents Exs.P1 to P12. On the side of Insurance Company, no witness was examined, but, 2 documents were marked. 7. On appreciation of materials, the Tribunal, found that the accident had occurred owing to the rash and negligent driving of the Lorry belonging to first respondent and held that the Insurance Company, being the insurer of the offending vehicle, is liable to pay compensation. The compensation awarded by the Tribunal is as follows: Sl. No. Compensation awarded under the head Amount (in Rs.) 1. Functional Disability 10,72,500/- 2. Future Medical Expenses 1,30,000/- 3. Pain and suffering 1,00,000/- 4. Loss of Income 90,000/- 5. Medical expenses (Medical Bills and artificial leg) 78,390/- 6. Loss of amenities 75,000/- 7. Transportation expenses 50,000/- 8. Additional Nourishment 50,000/- 9. Attender charges 22,500/- 10. No. Compensation awarded under the head Amount (in Rs.) 1. Functional Disability 10,72,500/- 2. Future Medical Expenses 1,30,000/- 3. Pain and suffering 1,00,000/- 4. Loss of Income 90,000/- 5. Medical expenses (Medical Bills and artificial leg) 78,390/- 6. Loss of amenities 75,000/- 7. Transportation expenses 50,000/- 8. Additional Nourishment 50,000/- 9. Attender charges 22,500/- 10. Damages to clothes 2,000/- Total 16,70,390/- Rounded off to 16,70,400/- The said sum was directed to be paid together with interest at 7.5% p.a. from the date of claim petition till the date of realization. 8. Learned counsel for claimant submits that the claimant is a cleaner by avocation. Due to the injuries suffered in the accident, the claimant’s right leg above knee was amputated. Ex.P4 is the copy of the disability certificate issued by the Government Institute of Rehabilitation Medicine, K.K.Nagar, Chennai, wherein it is mentioned that the claimant suffers from locomotor disability and that the diagnosis done in his case was right transfemoral amputation and that he had 80% permanent physical impairment in relation to his right lower limb. However, the Tribunal had fixed his disability only at 55%, which had resulted in awarding an inadequate compensation of Rs.10,72,500/- under the head ‘functional disability. Thus, learned counsel prays this Court to fix the disability at 80% and accordingly, enhance the compensation. 9. Per contra, learned counsel for Insurance Company made his submissions supporting the award passed by the Tribunal. 10. This Court has considered the rival submissions and perused the materials on record. 11. This Court finds that on account of the injuries sustained in the accident, the claimant suffers from locomotor disability and his right leg above knee was amputated and that he had 80% permanent physical impairment in relation to his right lower limb. However, the Tribunal had fixed the disability only at 55% based on Ex.P5 – Photographs of the claimant. The deceased is a cleaner by avocation and hence, he would find it difficult to carry on his avocation throughout his life due to the injuries suffered by him in the accident. In such circumstances, this Court is of the considered view that it would be just and reasonable to fix the disability at 80%. Accordingly, the compensation payable under the head ‘functional disability/future loss of earning capacity’ is recalculated as follows: Monthly income Rs. 13,000/- Add: Future Prospects 25% of Rs.13,000/- Rs. 3,250/- Rs. In such circumstances, this Court is of the considered view that it would be just and reasonable to fix the disability at 80%. Accordingly, the compensation payable under the head ‘functional disability/future loss of earning capacity’ is recalculated as follows: Monthly income Rs. 13,000/- Add: Future Prospects 25% of Rs.13,000/- Rs. 3,250/- Rs. 16,250/- Annual income (16,250 * 12) Rs. 1,95,000/- Multiplier x 13 Rs. 25,35,000/- 80% disability Rs. 20,28,000/- 12. Learned counsel for claimant submits that the Honourable Supreme Court in the decision in B. Kothandapani vs. Tamil Nadu State Transport Corporation Ltd., has held that considering the nature of injury suffered by the claimant, compensation under both the heads viz., loss of earning power and permanent disability can be granted. 13. As per the aforesaid judgment, this Court awards a sum of Rs.2,000/- per percentage of disability under the head permanent disability. Accordingly, a sum of Rs.1,60,000/- is awarded under such head. 14. Considering the nature of injuries suffered by the claimant, this Court enhances the compensation payable under the heads ‘attender charges’ and ‘loss of amenities’ to Rs.1,00,000/- each. Further, the compensation awarded under the head ‘transportation’ and ‘Additional nourishment’ is reduced to Rs.20,000/- and Rs.22,000/- respectively. Since compensation has been awarded under both the heads ‘loss of future earning capacity’ and ‘permanent disability’, the amount of Rs.90,000/- awarded under the head ‘loss of income’ is set aside. Except this modification, the award of the Tribunal, in all other aspects, is hereby confirmed. 15. Accordingly, the modified compensation payable would be: Sl. No. Compensation awarded under the head Award of the Tribunal (in Rs.) Award of this Court (in Rs.) 1. Functional Disability/Loss of earning capacity 10,72,500/- 20,28,000/- 2. Permanent disability - 1,60,000/- 3. Future Medical Expenses 1,30,000/- 1,30,000/- 4. Pain and suffering 1,00,000/- 1,00,000/- 5. Loss of Income 90,000/- - 6. Medical expenses (Medical Bills and artificial leg) 78,390/- 78,390/- 7. Loss of amenities 75,000/- 1,00,000/- 8. Transportation expenses 50,000/- 20,000/- 9. Additional Nourishment 50,000/- 22,000/- 10. Attender charges 22,500/- 1,00,000/- 11. Damages to clothes 2,000/- 2,000/- Total 16,70,390/- 27,48,390/- Rounded off to 16,70,400/- 27,48,400/- In the result, the Civil Miscellaneous Appeal is partly allowed. The compensation of Rs.16,70,400/- awarded by the Tribunal is hereby enhanced to Rs.27,48,400/-. Loss of amenities 75,000/- 1,00,000/- 8. Transportation expenses 50,000/- 20,000/- 9. Additional Nourishment 50,000/- 22,000/- 10. Attender charges 22,500/- 1,00,000/- 11. Damages to clothes 2,000/- 2,000/- Total 16,70,390/- 27,48,390/- Rounded off to 16,70,400/- 27,48,400/- In the result, the Civil Miscellaneous Appeal is partly allowed. The compensation of Rs.16,70,400/- awarded by the Tribunal is hereby enhanced to Rs.27,48,400/-. The Insurance Company is directed to deposit the enhanced compensation of Rs.27,48,400/-, less the amount already deposited, together with interest at 7.5% p.a. from the date of claim petition till the date of deposit within a period of four weeks from the date of receipt of this judgment. On such deposit being made, the claimant is entitled to withdraw the same on due application. No costs.