A.Rajesh Kumar v. K.Sermaraj

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.02.2024 CORAM : THE HONOURABLE MR. JUSTICE K.RAJASEKAR C.M.A.Nos.2543 and 2553 of 2021 and M.C.O.P.Nos.20 and 21 of 2015 A. Rajeshkumar

... Appellant in CMA.No. 2543 of 2021 S. Dhinakaran ...Appellant in CMA.No. 2553 of 2021

Vs.

¶1K.Sermaraj

¶2The Oriental Insurance Company Limited, Subagovindham Building, Imperial Road, Cuddalore - 2

... Respondents in both C.M.As. PRAYER in C.M.A.No.2543 of 2021: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, to allow Civil Miscellaneous Appeal and enhance the award in Judgment and Decree dated 14.02.2019 made in M.C.O.P.No. 21 of 2015 on the file of the Motor Accident Claims Tribunal, Special Sub Court, Cuddalore. PRAYER in CMA.No.2553 of 2021: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, to allow Civil Miscellaneous Appeal and enhance the award in Judgment and Decree dated 14.02.2019 made in M.C.O.P.No. 20 of 2015 on the file of the Motor Accident Claims Tribunal, Special Sub Court, Cuddalore.

For Appellant : Mr. M.Sivakumar in both appeals

for S.Thirumavalavan

For R1

: No appearance

in both appeals For R2

: Mr.D.Bhaskaran in both appeals COMMON JUDGMENT This Civil Miscellaneous Appeal has been filed by the respective claimants for enhancement of compensation awarded in M.C.O.P.No.20 and 21 of 2015, dated 14.02.2019 on the file of the Motor Accident Claims Tribunal, Special Sub Court, Cuddalore.

¶2For better appreciation, the parties are referred according to their litigative status before the Tribunal below.

¶3The facts leading to filing of the claim petition are as follows :

3.1 On 22.10.2014 at about 4.45 p.m, while the petitioner in M.C.O.P.No.21 of 2015 was riding his motorcycle with the petitioner in M.C.O.P.No. 20 of 2015 as pillion rider near Adhi Narayanapuram Cemetery, Perumal Earikarai Road, the car belongs to the first respondent driven by its driver in rash and negligent manner dashed against the two wheeler which resulted in causing serious injuries to the both claimants.

3.2 After treatment, they have come forward with these claim petitions seeking compensation for a sum of Rs. 25,00,000/- each by invoking under Section 166 of Motor Vehicle Act. The owner of the car has not contested the claim and remained exparte. The second respondent is the insurer and contested the claim on the ground that the driver of the first respondent is not responsible for the accident. Hence, the insurance company is liable to take up the complaint and they further disputed disability of the claimants and also the compensation claimed by the petitioners under various heads.

¶4The Tribunal after considering the evidence placed on record has accepted the case of the claimants and awarded Rs. 3,23,000/- to the claimant S.Dhinakaran in M.C.O.P.No.20 of 2015 and awarded Rs.4,30,830/- to the claimant A.Rajesh Kumar in M.C.O.P No. 21 of 2015. The Tribunal has also awarded interest at the rate of 7.5% p.a from the date of application till the date of deposit.

¶5Aggrieved over the quantum of compensation awarded by the Tribunal, both the claimants have filed separate appeals and respondents have not challenged the award.

¶6The learned counsel for the claimants submits that the Tribunal has not properly awarded the compensation to both the claimants and the compensation awarded under various heads is also on the lower side and prays to enhance the same.

¶7He further submits that in the case of A.Rajeshkumar, the medical board has assessed permanent disability of 52% on his whole body due to the forefoot Amputated, right middle 3rd comminuted fracture shaft of femur, type 3 Tibial Plateau fracture of right tibia. But the Tribunal has not awarded compensation for treating the disability. In this case, he has lost earning capacity and prays to award just compensation.

¶8The learned counsel for the insurance company submits that the Tribunal after taking note of the evidence placed on record has rightly awarded just compensation and there is no reason for enhancing the compensation awarded by the Tribunal.

¶9I have considered the submissions of either side and perused the entire evidence placed on record.

¶10As far as the claimant S.Dhinakaran concern, he has sustained right comminuted mid 3rd Distal 3rd junction shaft Femur Fracture, LCL tear and hemarthrosis. He was subjected to Medical Board examination and assessed 26% permanent disability to his whole body due to the fracture distal fuirm. Except the disability, there was no evidence placed on record to show that this injury has let to loss on his earning capacity. After considering the evidence, the Tribunal has rightly held that the claimant herein has not sustained any functional disability and by adopting percentage method, the Tribunal has awarded compensation. This court finds there is no infirmity in awarding compensation by treating the injuries as a non-functional disability. However, this Court by following the norms of awarding Rs. 4,000/-for the injuries sustained in the year 2014. Accordingly, the compensation awarded under the head disability is modified as 26 x Rs.4000=Rs.1,04,000/-

¶11The Tribunal has not awarded any compensation under head loss of income during his treatment period. The discharge summary produced by the claimant herein shows that the claimant S.Dhinakaran underwent inpatient for 20 days and he was also in continuous treatment for nearly 3 months. Considering the same, this Court is inclined to award Rs.40,000/- under the head loss of income during treatment period. Similarly, the claimant S.Dhinakaran is also entitled for attender charges and accordingly, this Court is inclined to grant Rs.20,000/- as attender charges.

¶12The Tribunal has also awarded compensation under various heads and this court finds the same just and proper and accordingly the compensation is modified as follows:- S. No. Description Amount Awarded by Tribunal (Rs.) Amount Awarded by the Court (Rs.) Award confirmed or enhanced or reduced

¶1Partial Permanent Disability 78,000/- 1,04,000/- Enhanced

¶2Pain and suffering 50,000/- 50,000/- Confirmed

¶3Attendant Charges 5,000/- 20,000/- Enhanced

¶4Transport to Hospital 67,100/- 67,100/- Confirmed

¶5Special Diet 10,000/- 10,000/- Confirmed

¶6Medical Expenses 1,12,900/- 1,12,900/- Confirmed S. No. Description Amount Awarded by Tribunal (Rs.) Amount Awarded by the Court (Rs.) Award confirmed or enhanced or reduced

¶7Loss of Income - 40,000/- Granted Total 3,23,000/- 4,04,000/- Enhanced

¶13As far as the claimant Rajeshkumar is concernd, the discharge summary Ex. P12 shows that the claimant Rajeshkumar has sustained right forefoot Amputated, right middle 3rd comminuted fracture shaft of femur, type 3 tibial plateau fracture of right Ribia and that the injury sustained by the claimant are grievous in nature. The injured herein is a manual worker. The earlier avocation of the injured herein is a maintenance engineer. The disability caused to him would affect his earning capacity to the extent of 50%. Since, he need good physic in order to carry out the maintenance worker in the industries.

¶14Considering the injuries sustained by the claimant/Rajeshkumar, this Court is of the view that these injuries would have drastically reduced the earning capacity of the claimant herein. As per the judgement of the Hon'ble Apex Court in Raj Kumar vs. Ajay Kumar [2011 ACJ 1] for the injuries sustained which resulted in causing functional disability and disability further prevented him from doing his earlier avocation then it is to be treated as loss of earning capacity. Hence, this Court inclined to grant compensation under the head loss of earning capacity to the extent of 50 percentage.

¶15In this case having carefully considered the injuries sustained and this court is of the view that the claimant herein has loss of earning capacity to the extent of 50%. Further considering the date of accident and the age of the claimant, the monthly income of the deceased is notionally fixed as Rs.10,000/-. Accordingly the compensation under the head loss of earning capacity is summed up as follows:- Annual Income Rs.10,000 x12 = Rs. 1,20,000/- Future Prospects @ 40% = Rs. 48,000/- Yearly income of the deceased = Rs.1,68,000/- Applicable Multiplier = 17 Total Compensation (Rs. 1,68,000x17)

= Rs.28,56,000 /-= 28,56,000 x 50% = 14,28,000/-

¶16The claimant is also entitled for future prospectus has held by the Apex Court Erudhaya Priya vs. State Express Transport Corporation Ltd., reported in [2020 SSCR 299 : 2020 ACJ 2159] and Jagdish vs. Mohan and others [(2018) 4 SCC 571]. Accordingly, 40% is awarded for future prospectus. The Tribunal has not awarded any compensation under the head loss of amenities. This Court inclined to award Rs.50,000/- under the head of loss of amenities by considering the nature of injuries sustained. The Compensation awarded by the tribunal for other heads is hereby confirmed. Accordingly, the compensation is modified as follows:- S.No. Description Amount Awarded by Tribunal (Rs.) Amount Awarded by the Court (Rs.) Award confirmed or enhanced or reduced

¶1Loss of earning capacity 1,56,000/- 14,28,000/- Enhanced

¶2Transport to Hospital 24,000/- 24,000/- Confirmed

¶3Special Diet 10,000/- 10,000/- Confirmed

¶4Pain and Sufferings 1,00,000/- 1,00,000/- Confirmed

¶5Loss of Income 25,000/- 25,000/- Confirmed

¶6Attendant Charge 10,000/- 10,000/- Confirmed

¶7Medical Bill 1,05,830/- 1,05,830/- Confirmed

¶8Loss of amenities - 50,000/- Granted Total 4,30,830/- 17,52,830/- Enhanced

¶17The Insurance Company is directed to deposit the enhanced compensation ordered by this Court within a period of six weeks from the date of receipt of copy of this Order along with interest and cost. On such deposit, the claimants herein are entitle to withdraw the same. Accordingly, the appeal filed by claimant in C.M.A.Nos. 2543 & 2553 of 2021 are partly allowed. No costs.

22.02.2024 nsl Index:Yes/No Speaking Order : Yes/No To The Oriental Insurance Company Limited, Subagovindham Building, Imperial Road, Cuddalore - 2 K.RAJASEKAR.J nsl C.M.A.Nos.2543 and 2553 of 2021

22.02.2024