The New India Assurance Co Ltd v. P.Nedunchezian(Died)

JUDGMENT (Judgment was delivered by R.KALAIMATHI, J.,) This Civil Miscellaneous Appeal is focused against the judgment and decree passed in M.C.O.P.No.350 of 2016 dated 26.08.2019 on the file of the Motor Accidents Claim Tribunal / Special Sub Court No.2, Salem.

¶2Claim petition was filed under Section 166 of Motor Vehicles Act R/W Rule (3) 1 of T.N.M.A.C.T. Rules, claiming compensation of Rs.85,00,000/- for the injuries sustained by the 1st respondent / Claimant in a road accident that occurred on 06.11.2015.

¶3The learned Tribunal, after hearing the arguments of both sides and upon consideration of oral and documentary evidence, has passed an award for an amount of Rs.39,28,741/- with interest at the rate of 7.5% per annum from the date of filing of claim petition till the date of realisation fastening liability on the appellant / 2nd respondent Insurance Company to pay the compensation.

¶4During the pendency of Civil Miscellaneous Appeal, pursuant to the death of 1st respondent/Claimant, his legal heirs namely the 3rd and 4th respondents have been brought on record, as per the order of this Court dated 14.03.2023 made in C.M.P.Nos.6409, 6410 and 6413 of 2022.

¶5At Trial, on the claimant's side, the injured P.Neduncheian was examined as P.W.1. Ex.P.1 to Ex.P.31 were marked. The Accident Register Copy was marked as Ex.P7. On the side of the respondent, neither any witness was examined nor document was marked. Disability Certificate issued by the Medical Board is Ex.C1

¶6The learned counsel appearing for the appellant / Insurance company Mr.R.Sivakumar would strenuously argue that the disability which was assessed by the Medical Board at 63% was taken by the Tribunal for the purpose of calculating loss of earning power which is incorrect, as it was not assessed for the whole body. Without any proof of income, the Tribunal fixed the monthly income of the first respondent as Rs.10,000/-. He further argued that for assessing the loss of income, the Tribunal has invoked the multiplier method which is not acceptable. He would further contend that the amounts ordered for pain and suffering and loss of amenities are highly excessive, as well as for the future medical expenses and for medical expenses. He would further contend that the amounts awarded towards Transport expenses and Extra nourishment are also on the higher side and sought for reduction of the Award.

¶7The learned counsel appearing for the respondent would vehemently contend that the deceased at the relevant point of time was aged about 50 years. That on 06.11.2015 at about 12.30 p.m., when he was proceeding in the two wheeler bearing Registration No.TN-27-K-0426 along the five road - Salem junction main road near AVR roundtana signal, a bus bearing Registration No.TN-54-A-5006 came in a rash and negligent manner hit on the two wheeler. Due to the said impact, he sustained grievous injuries. It is further argued that the injured was running a Tourist Travels and was earning a sum of Rs.50,000/- per month. He suffered degloving injury on the whole of the right thigh, Perineum, Penis, Scrotum with right iliac fracture.

¶8According to the claimant, he was under treatment at Coimbatore Ganga Hospital for about two months and thereafter he took treatment thrice for a long period and undergone surgeries. He suffered disability at 63%. The Tribunal has taken as such the disability assessed by the Medical Board and adopted multiplier method for calculating loss of earning power. The injured person was in the hospital as an in-patient for months together and he was attended by the attender even for his natural calls. Considering the injuries sustained by him, the Tribunal has granted reasonable compensation under various heads. Therefore, the compensation awarded by the Tribunal does not need to be interfered with and prayed to confirm the same.

¶9Heard the arguments of the learned counsels for both sides and perused the materials on record.

¶10It is the evidence of P.W.1, that on 06.11.2015 while he was travelling in a two wheeler, a bus bearing Registration No.TN-54-A-5006 came in a rash and negligent manner and hit against him and eventually he sustained very grievous injuries. A perusal of medical records indicate the fact that he sustained degloving injury below his hip including the right thigh, Perineum, Penis, Scrotum with right Iliac fracture with bilateral, superior and inferior Pubic Rami fracture. Months together he was in Coimbatore Ganga Hospital as an in-patient and he also underwent many surgeries.

¶11Ex.P.2, Ex.P.5, Ex.P.6, Ex.P.8 and Ex.P.17 are the treatment records of the injured issued by various hospitals. It is seen from Ex.P.2 – Discharge Summary, that on 09.11.2015 skin grafting was done. He was with external fixator over for about six weeks. The following treatment was given on 09.11.2015, Using catgut sutures the two testis were sutured together by including only the albuginea. The spermotic cords were sutured together. The testicles were anchored posteriorly to the perineal soft tissue. SSG was harvested from the left thigh. The SSG was meshed 1:1 using a mesher and the grafts were draped around the penis and scrotum. The graft was anchored with staples and 4-0 catgut. A pouch was done for the scrotum by draping the graft around the testes. The hanging posterior skin was fixed to the underlying muscles. The antero-medical aspect of right thigh was grafted. The anterior, medial, lateral and posterior raw areas need grafting cover later. Thereafter, on 13.11.2015 and on 02.12.2015, debridement of raw areas over the right thigh were done.

¶12One could definitely understand after reading the above said details, the sufferings undergone by the injured. The Medical Board assessed the disability at 63%. The injured suffered degloving injury below right hip besides iliac and Pubic Rami fracture. In Rajkumar Vs. Ajaykumar reported in 2010 (2) TN MAC 581, wherein the Hon'ble Apex Court has held that "the permanent disability may result in different percentage of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors". The injured sustained the fractures over the hip besides degloving injury as mentioned supra. Therefore, it would not have been possible for him to either attend to his personal work or attend to his official work. (running travels). The nature of injuries, fractures suffered by him amply demonstrates the impact of fractures and injuries on him. He was bound to suffer loss of earning power. The only outcome would be loss of income, as it would not have been possible for him to attend his travel work. Therefore, we are of the view that the assessment made by the Medical Board at 63% has to be taken as such for the purpose of invoking multiplier method.

¶13According to the injured, he was running a Tourist Travels and earning a sum of Rs.50,000/-per month and no documents were filed to compute his income. Ex.P.25 and Ex.P.29 – Bank statements of the injured. Ex.P.21 to Ex.P.23 are copies of travel permits. The date of accident is 06.11.2015. Relying upon the above said details, his income is fixed at Rs.15,000/-per month. As per the Aadhar card Ex.P.28 he was aged about 54 years at the relevant point of time. As per the law laid down by the Hon'ble Supreme Court in National Insurance Company Limited Vs Pranay Sethi and Others reported in 2017(2) TNMAC 609 (SC), he is entitled for 10% future prospectus while calculating the monthly income. The loss of earning power is calculated as follows, Age of the injured = 54 years Notional income fixed = Rs.15,000/-p.m. Future Prospectus = 10% = 15,000/-+ 10% = 16,500/-Annual Income = 16,500/-x 12 = 1,98,000/-Multiplier to be adopted = 11 = 16,500/-x 12 x 11 x 63% For Loss of earning power = Rs.13,72,140/-

¶14The amounts granted under various heads are modified as follows. The other amounts awarded by the Tribunal appears to be reasonable and it need not to be interfered with. Thus, the compensation awarded by the Tribunal is reworked and are tabulated hereunder: S.No Heads Tribunal High Court Award confirmed or enhanced or granted

¶1For loss of earning power Rs.9,14,760/- Rs.13,72,140/- Enhanced

¶2For pain and suffering Rs.3,00,000/- Rs.2,00,000/- Reduced

¶3For loss of amenities Rs.4,00,000/- Rs.2,00,000/- Reduced

¶4For Medical expenses Rs.10,66,153/- Rs.10,66,153/- Confirmed

¶5For Future medical expenses Rs.3,00,000/- Rs.1,50,000/- Reduced For Transport expenses Rs.1,47,828/- Rs.1,47,828/- Confirmed For extra nourishment Rs.2,00,000/- Rs.1,00,000/- Reduced For attender charges Rs.5,99,000/- Rs.3,00,000/- Reduced

¶9For Damages to cloth Rs.1,000/-Rs.1,000/-Confirmed Total Rs.39,28,741/-Rs.35,37,121/-Rounded of to Rs.35,37,000/-Reduced by Rs.3,91,620/-

¶15In the result,

(i) The Civil Miscellaneous Appeal is partly allowed. No costs.

(ii) The compensation awarded by the Tribunal at Rs.39,28,741/- is hereby reduced to Rs.35,37,000/-.

(iii) The Appellant / Insurance Company is directed to deposit the modified compensation amount i.e., Rs.35,37,000/- (less the amount already deposited if any) together with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit to the credit of M.C.O.P.No.350 of 2016 on the file of the Motor Accident Claims Tribunal, Special Sub-Court No.2, Salem, within a period of eight weeks from the date of receipt of copy of this Judgment.

(iv) On such deposit being made, the 3rd and 4th respondents are at liberty to withdraw the amount. Consequently, the connected Miscellaneous Petitions are closed.

[R.S.M., J] [R.K.M., J]

20.10.2023 Index : Yes / No Internet : Yes / No : Yes / No Speaking / Non-speaking order drl To:

¶1The Motor Accident Claims Tribunal, Special Sub Court No.2, Salem.

¶2The Section Officer, V.R.Section, High Court of Madras, Chennai. R.SUBRAMANIAN, J., AND R.KALAIMATHI, J., drl Pre-delivery Judgment in and C.M.P.No.2833 of 2020 and C.M.P.No.20867 of 2023

20.10.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 15.09.2023 PRONOUNCED ON : 20.10.2023 CORAM: THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN AND THE HONOURABLE MRS.JUSTICE R.KALAIMATHI and C.M.P.No.2833 of 2020 and C.M.P.No.20867 of 2023 The New India Assurance Company Limited, No.7, B.K.Building, Ramalinga Mudali Street, Gugai, Salem – 636 006. .... Appellant vs. 1. P. Nedunchezian (Died) 2.P. Ramesh (R2 set exparte before the Tribunal) 3.Mini 4.Thangamani ... Respondents (R3 and R4 are the legal heirs of the deceased R1-P.Nedunchezian, vide Order dated 14.03.2023 made in CMP.Nos.6409, 6410 and 6413 of 2022 made in CMA.No.490 of 2020). PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the Award and Decree dated 26.08.2019 passed in M.C.O.P.No.350 of 2016 on the file of the Motor Accident Claims Tribunal / Special Sub Court No.2, Salem. For Appellant : Mr.R.Sivakumar For R3 & R4 : Mr.J.Franklin, Advocate