C.M.A.(MD) No.882 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.12.2024
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.(MD)No.882 of 2023
P.Chokkalingam ... Appellant/Petitioner
vs.
1.Sakthikumar,
2.Divisional Manager,
New India Assurance Company Limited ...
Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
the Motor Vehicles Act, 1988, against the judgment and award,
dated 14.09.2022 made in M.C.O.P.No.2242 of 2017, on the file of
the Motor Accidents Claims Tribunal/Special Subordinate Court,
Madurai.
For appellant : Mr.N.Ramamoorthy
For Respondents
for R1 : No appearance
for R2 : Mr.R.Ramadurai
Page No.1/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
*****
J U D G M E N T
This Civil Miscellaneous Appeal has been preferred by the claimant
against the award dated 14.09.2022 made in M.C.O.P.No.2242 of 2017 on
the file of the Motor Accidents Claims Tribunal/Special Sub Court,
Madurai, for enhancement of compensation.
2. Despite the receipt of notice, the first respondent neither
appeared nor represented through his counsel.
3. The case as set out in the claim petition is stated in brief:
On 04.01.2010, at about 8.45 p.m., while the petitioner was riding
his two-wheeler bearing registration No.TN-07-AD-2100 along Kamuthi
road from Manadala Manickam from west to east direction and when he
was crossing Pudupatti diversion road, an auto bearing registration
No.TN-65-Z-4833, came in a rash and negligent manner from the opposite
direction, hit upon the two-wheeler. Due to the said impact, the claimant
sustained serious injuries. Due to the rash and negligent driving of the
driver of the said auto, the accident occurred. Therefore, the first
respondent, who is the owner and the second respondent, who is the
insurer of the erred Auto are jointly and severally liable to pay
Page No.2/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
compensation to the claimant herein. An amount of Rs.8,00,000/- was
claimed as compensation by the claimant.
4. Per contra, it was contended by the second respondent that the
manner, in which the accident happened as given in the claim petition, was
not admitted. At the time of accident, the driver of the first respondent-
vehicle did not possess licence to drive the vehicle. The claimant is put to
strict proof of his age, avocation and monthly income.
5. At trial, on the petitioner side, two witnesses were examined and
21 documents were marked. Ex.C1 is the disability certificate issued by the
Medical Board of Madurai Rajaji Government Hospital. On the second
respondent side, neither any oral evidence was let in nor any document
was marked.
6. Upon consideration, the Tribunal has fastened the liability on the
second respondent and granted compensation of Rs.2,76,900/- to the
claimant under the following heads. Against which the claimant herein has
filed this appeal for enhancement of compensation:
Page No.3/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
Sl. Description Amount awarded
No. by the Tribunal
1 For partial permanent disability
Rs.1,70,000/-
Rs.2,000/- X 85 %
2 For pain and sufferings Rs. 10,000/-
3 For medical expenses Rs. 89,000/-
4 For extra nourishment Rs. 3,000/-
5 For attendant charges Rs. 900/-
6 For loss of amenities Rs. 3,000/-
7 For Transport charges Rs. 1,000/-
Total Rs.2,76,900/-
7. The learned counsel for the appellant/petitioner would,
strenuously argue that on account of the accident, he suffered right
femur and tibia fractures and the partial permanent disability is fixed
at 85%. Therefore, considering the disability suffered by the
claimant, multiplier method ought to have been adopted by the
Tribunal. He would further contend that after the accident, due to the
fractures suffered by the claimant, he is not in a position to work as
night watchman as he did before. Hence, his loss of income can only
be compensated, if multiplier method is invoked. His main argument
is focused on invoking of the multiplier method.
Page No.4/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
8. It has come on record through the evidence of
P.W1/claimant that on account of the accident, he suffered fractures
over right femur and right tibia besides fractures in the 3rd and 5th
metacarpal shaft and right ulna injury. Soon after the accident, he
was given first aid at Kamuthi Government Hospital and the next day
of the accident, he was admitted at Miet hospital, Madurai, where he
was given treatment from 05.01.2010 to 31.01.2010 as an inpatient.
He had undergone surgery for the fractures. He would further state
that at the relevant point of time, he was aged about 47 years and
was working as night watchman, after retiring from Army and was
earning a sum of Rs.15,000/- p.m.
9. It is his specific evidence that he has drawing monthly
pension of Rs.20,000/- as pension. He has further deposed that on
account of the injuries and fractures sustained by him, he is not in a
position to earn subsequent to the accident.
10. In injury cases, under what circumstances, multiplier
method can be invoked has elaborately been dealt with by the Apex
Court in Raj Kumar vs Ajay Kumar reported in [(2011) 1 SCC 343].
Page No.5/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
The principles have also been summarised, which are given
hereunder:
“(i) All injuries (or permanent disabilities arising
from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with
reference to the whole body of a person, cannot be
assumed to be the percentage of loss of earning
capacity. To put it differently, the percentage of loss of
earning capacity is not the same as the percentage of
permanent disability (except in a few cases, where the
Tribunal on the basis of evidence, concludes that
percentage of loss of earning capacity is the same as
percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or
who examined him subsequently to assess the extent of
his permanent disability can give evidence only in
regard the extent of permanent disability. The loss of
earning capacity is something that will have to be
assessed by the Tribunal with reference to the evidence
in entirety.
(iv) The same permanent disability may result in
different percentages of loss of earning capacity in
different persons, depending upon the nature of
profession, occupation or job, age, education and other
factors."
Page No.6/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
11. This Court is conscious of the fact that the same partial
permanent disability would result in different percentage of loss of
earning capacity in different persons. It also depends upon the
nature of job, age, gender, education and such other factors.
12. In this case, it is the evidence of P.W1 that at the relevant
point of time, he was working as a night watchman in the temple and
was earning a sum of Rs.15,000/- p.m. Though proof for the said
factum was marked as Ex.P8, as the document was not proved in
the manner known to law, the Tribunal has not relied upon the said
document (Ex.P8). There is no locomotor disability and he had
sustained the said fracture at the age of 47 years. As the claimant
has claimed that he was working as a night watchman, the disability
suffered would not have prevented him from carrying on his
avocation as a night watchman, though it might impede to some
extent in his functioning. Because of the said reason, the Tribunal
has not invoked multiplier method, which cannot be found fault with.
13. The claimant has stated that he was working as a night
Page No.7/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
watchman in the temple and earning a sum of Rs.15,000/- at the
relevant point of time. Date of the accident is 04.01.2010. Though
Ex.P8/certificate received from the Police was not proved by the
claimant, his monthly income is notionally fixed at Rs.6,000/- p.m.
Upon consideration of the fractures that he suffered and the period
of treatment, an amount of Rs.30,000/- is granted under the head
‘loss of income’ during the treatment period (5 months). For pain and
sufferings, an amount of Rs.25,000/- is granted in addition to the
amount already awarded by the Tribunal. For attendant charges and
extra nourishment and for loss of amenities, an amount of Rs.
10,000/- under each head, and for loss of amenities, a sum of Rs.
20,000/- is granted in addition to the amounts already awarded by
the Tribunal. In all other aspects, the compensation awarded by the
Tribunal appears to be reasonable and acceptable and need not be
interfered with. The compensation granted is reworked and tabulated
as given hereunder:
Page No.8/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
Award
Amount Amount confirmed
Sl. awarded by awarded by or
Description
No. Tribunal this Court enhanced
or granted
or reduced
1 For partial permanent Rs.1,70,000/- Rs.1,70,000/- Confirmed
disability
Rs.2,000/- X 85
2 For pain and sufferings Rs. 10,000/- Rs. 35,000/- Enhanced
3 For medical expenses Rs. 89,000/- Rs. 89,000/- Confirmed
4 For extra nourishment Rs. 3,000/- Rs. 13,000/- Enhanced
5 For attendant charges Rs. 900/- Rs. 10,900/- Enhanced
6 For loss of amenities Rs. 3,000/- Rs. 23,000/- Enhanced
7 For Transport charges Rs. 1,000/- Rs. 1,000/- Confirmed
8 For loss of income --- Rs. 30,000/- Granted
(Rs.5,000 x 5 months)
Total Rs.2,76,900/- Rs.3,71,900/- Enhanced
Rounded off by
Rs.3,72,000/- Rs.95,100/-
14. Thus, the compensation awarded by the Tribunal is enhanced
from Rs.2,76,900/- to Rs.3,72,000/- which would carry interest at the rate
of 7.5% per annum from the date of petition till the date of realisation.
15. In the result,
(i) The Civil Miscellaneous Appeal stands partly allowed. No costs.
(ii) The compensation awarded by the Tribunal is enhanced from
Rs.2,76,900/- to Rs.3,72,000/-.
Page No.9/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
(iii) The Insurance Company/second respondent is directed to
deposit the enhanced compensation amount now determined by this Court
i.e., Rs.3,72,000/- (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 and costs to the credit of M.C.O.P.No.2242 of 2017 on the
file of Motor Accidents Claims Tribunal / Special Sub Court, Madurai within
a period of eight weeks from the date of receipt of a copy of this Judgment.
(iv) On such deposit being made, the claimant/appellant is permitted
to withdraw the amount now determined by this Court along with interest
and costs, after adjusting the amount, if any already withdrawn, by filing
necessary application before the Tribunal.
(v) The claimant is directed to pay the Court fee for the enhanced
compensation amount, if required.
(vi) The Tribunal below shall disburse the amount upon production
of the certified copy showing proof of payment of Court fee by the
claimant.
31.12.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
apd
To
1.The Motor Accidents Claims Tribunal / Special Sub Court, Madurai.
Page No.10/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
R.KALAIMATHI,J
Page No.11/12
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.882 of 2023
apd
Pre-delivery order made in
C.M.A.(MD) No.882 of 2023
31.12.2024
Page No.12/12
https://www.mhc.tn.gov.in/judis