T. Rajamoni (D) Thr. Lrs vs The Manager Oriental Insurance Co. Ltd

2025 INSC 107 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. OF 2025 (@ S.L.P.(C) Nos. 20702-03 of 2021)

T. RAJAMONI S/O THASON DEAD THROUGH LRS. … APPELLANT(S)

VERSUS

THE MANAGER, ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS … RESPONDENT(S)

JUDGMENT

S.V.N. BHATTI, J.

1. Leave granted.

2. The appeals arise from the common order dated 30.06.2021 in CMA

(MD) Nos. 979 of 2014 and 305 of 2015 (“Impugned Order”) on the file of the

Madurai Bench of Madras High Court that were filed by Oriental Insurance

Company Limited questioning the award of compensation of Rs.21,35,000/-

(Indian Rupees twenty-one lakh thirty-five thousand) and by the claimant for

enhanced compensation. For convenience, the parties are referred to as per

their status in CMA (MD) No. 305 of 2015. The first appellant died on

14.01.2024, and appellants nos.1.1 to 1.4, as legal representatives of the first

appellant, are prosecuting the appeal(s).

3. The case of the appellant is that on 10.10.2011, he and his wife were

returning from the market and, as pedestrians, were walking on the left side Signature Not Verified Digitally signed by Deepak Joshi Date: 2025.01.27 of the road towards the southern direction from Mekkamandapam to 11:28:07 IST Reason:

Azhahiamandapam. The first respondent, Paul Raj, was driving an

1 autorickshaw bearing No. TN 74 E 2622 and, from behind, the first

respondent hit the first appellant in a rash and negligent way. The accident

resulted in grievous injuries to the first appellant. The second respondent,

Vijila. P, is the owner of the vehicle, and the third respondent, the Manager of

Oriental Insurance Company Limited, is the insurer. The first appellant filed

MCOP No. 34 of 2013 before the Motor Accidents Claim Tribunal (Special

Court for Forest Offence Cases), Nagercoil (“the Tribunal”), under Section

166(a) of the Motor Vehicles Act, claiming compensation of Rs.25,00,000/-

(Indian Rupees twenty-five lakh) under various heads from the respondents.

The findings on the accident and the rash and negligent driving by the auto

driver are accepted by the insurer. The appeals are filed questioning the

reduction of compensation awarded by the Tribunal and for the award of the

claimed compensation. Therefore, the averments and the evidence on the

admitted position are not adverted to as part of the narrative of the case. At

the time of the accident, the first appellant is stated to have been working as

a Mason under PW-3. Dr. Thomas Baby was examined as PW-2. The claimant

exhibited P-1 to P-25. No oral or documentary evidence is placed on record by

the Insurance Company. The Tribunal awarded a sum of Rs.21,35,000/-

(Rupees Twenty-One Lakh Thirty-Five Thousand) with interest @7.5% per

annum. The insurer, filed CMA (MD) No. 979 of 2014 before the Madurai

Bench of Madras High Court. The High Court has taken note of the oral

evidence of PW-2 and the extent of disability the first appellant suffered in the

accident and has noted that the first appellant failed to establish that he has

loss of memory and is suffering from defective hearing, etc. The High Court,

through the impugned Judgment, redetermined the compensation. For a

2 quick grasp of the scope of the appeals, the compensation awarded by the

Tribunal and the High Court is stated as follows:

Heads MACT HC Annual Income- 1,62,000 2,10,000/- (Mason) (13,500x12)(Rs.450 (3000x70) daily) Future Prospects Nil Nil Multiplier (Age 24.3 Lakhs Nil 44) (1,62,000x15) Disability Loss- (70%) 70% Annual Loss of 17.01 Lakhs (24.3 2,10,000/- Dependency lakhs x 70%) For two grievous 20,000/- 20,000/- injuries Pain and 25,000/- 50,000/- Suffering Medical Bills 1,47,267/- 1,47,267/- Earning loss as 6750/- (450x15 6750/- (450x15 an in-patient days) days) Attendant 1,32,000/- 1,32,000/- Charges Loss of Amenities 1,00,000/- 1,00,000/- & Expectation Transport 3,000/- 3,000/- Charges Total = Rs.21,35,000/- Rs.6,69,017/- (7.5%)

4. The High Court, as part of its consideration of the quantum of

compensation, held that the multiplier to arrive at a loss of future income

cannot be applied to the case on hand. The finding recorded is that it would

be appropriate to award Rs.3,000/- per percentage and thus awarded

Rs.2,10,000/- towards loss of income since the claimant suffered 70%

disability. The High Court enhanced the compensation under the “pain and

suffering” head from Rs.25,000/- to Rs.50,000/- and retained the

compensation granted under other heads.

5. Hence, the appeals.

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6. We have heard Mr. T.R.B. Sivakumar and Ms. Ankita Chaudhary,

learned Counsel for the parties.

7. The learned Counsel for the appellants argues that the first appellant

suffered serious head injuries in the accident dated 10.10.2011, viz.,

(i) Temporal Bone Fracture, (ii) Parietal Bone Fracture, and (iii) Clavicle

(Collarbone) Fracture. Further, considering the nature of the self-employment

of the first appellant as a Mason, the determination of loss of income of the

first appellant is illegal and erroneous. The grievous injuries are not disputed;

however, percentage of disability is contested by the insurer. The High Court

fell in a serious error by not following the Constitution Bench Judgment in

National Insurance Company Limited v. Pranay Sethi and others1. The evidence

of PW-2 remains unchallenged, coupled with the discharge summary

exhibited by the appellant. The appellant would not have resumed the

demanding job of a mason after the accident. Even assuming that the

multiplier is not applicable, awarding Rs.3,000/- per percentage is not

commensurate to the loss of income suffered by the first appellant. There is

no basis for arriving at Rs.3,000/- pay loss of income. The consideration is

contrary to other findings accepted by the High Court. In effect, the loss of

future income is arrived at Rs.100/- per day. He prays for restoring the loss

of dependency awarded by the Tribunal.

8. Ms. Ankita Chaudhary, learned Counsel appearing for the respondents,

contends that assuming that PW-2, the Doctor who treated the first appellant,

has been examined, the disability suffered by the first appellant on account

of the accident is not established by placing on record the disability certificate

1 (2017) 16 SCC 680

4 issued by a competent authority. The age of the first appellant is inconsistent

and the award of future income loss by the Tribunal towards 70% disability

is unsustainable.

9. We have perused the record and taken note of the submissions of the

Counsel appearing for the parties. The only point for decision is whether the

appellant is entitled to compensation towards loss of income or not, and if so,

to what extent. We keep in our perspective the view of this Court in National

Insurance Company Limited (supra) and New India Assurance Company

Limited v. Urmila Shukla and others2 .

10. At the outset, we would like to observe that the High Court, in

paragraph 8 of the impugned order, noted that the Counsel appearing for the

appellant filed a Memo dated 28.06.2021 withdrawing from the brief. This

warrants an observation on the Counsel appearing for the first appellant. In

the given circumstances, it cannot be observed that the High Court was wrong

in any way for noting the Memo filed by the Counsel appearing for the first

appellant. The circumstances not noted by the impugned Judgment is that

the element of prejudice suffered by the first appellant for want of proper

representation on his behalf cannot be lost sight of by this Court. In other

words, the appeals have been disposed of without due representation on

behalf of the first appellant. One of the options available to us is to remit the

matters to the High Court for fresh disposal. As noted above, the first

appellant is no more, and it is a matter of determination that the award of

Rs.2,10,000/- towards loss of income to the first appellant is commensurate

to the admitted disability suffered by the first appellant.

2 (2021) 20 SCC 800 5

11. We have perused the evidence of PW-2, and we take note of the fact that

PW-2 is not the signatory of the disability certificate relied on by the first

appellant. The facts established from the series of exhibits filed by the first

appellant are that the first appellant admittedly suffered serious head

injuries, viz., underwent more than one operation. From the nature of the

head injuries, it cannot be held that the first appellant would have returned

to complete normalcy and is entitled to loss of income only at Rs.100/- per

day. The observation of the Tribunal, which had the advantage of appreciating

the witnesses, including the claimant, noted that the appellant continued to

suffer from disability such as memory loss, defective speech, etc. The Tribunal

concluded that the first appellant was earning Rs.450/- per day, then applied

the multiplier for 70% disability loss. This approach, having regard to the view

taken in National Insurance Company Limited (supra), needs interference. To

that extent, the High Court may be right in not applying multiplier in an

abstract manner. Simultaneously, determining Rs.3,000/- per percentage as

a loss of future income is unsustainable. There is no discussion for arriving

at Rs.3,000/- per percentage. The first appellant established his avocation as

a mason. The employability of a person with serious head injuries is a

circumstance which ought to have been kept in the perspective for

determining the loss of income of the first appellant. By taking note of the

admitted circumstances, the age of the first appellant, even assuming as 50

years, as contended by the Insurance Company, the compensation for loss of

income and also loss for future earnings can be determined at Rs.7,50,000/.

We are of the view that a reasonable lumpsum compensation towards the

admissible heads i.e., ‘loss of earning capacity’ has been considered and

awarded. We also take note of the fact that the first appellant died during the

6 pendency of civil appeals, and the notional calculation of loss of income as

per the principles laid down in the cases referred above are applied

accordingly. Thus, the total compensation, is redetermined as follows:

Heads Compensation Loss of Annual Income-(Mason) 7,50,000/- For two grievous injuries 20,000/- Pain and Suffering 50,000/- Medical Bills 1,47,267/- Earning loss as an in-patient 6750/- Attendant Charges 1,32,000/- Loss of Amenities & Expectation 1,00,000/- Transport Charges 3,000/- Total 12,09,017/-

12. Thus, the compensation works out to Rs. 12,09,017/- (Rupees Twelve

Lakh Nine Thousand Seventeen) with interest @ 7.5% per annum from the

date of the claim petition till the date of payment. The compensation already

paid shall be given due credit.

13. The third respondent, the insurer, is directed to deposit the balance

compensation with interest within six weeks from the date of receipt of this

Judgment before the Motor Accidents Claim Tribunal (Special Court for Forest

Offence Cases), Nagercoil.

14. The Civil Appeals are allowed in part. There is no order as to costs.

……….…………………J [K.V. VISWANATHAN]

..…………………………J [S.V.N. BHATTI] New Delhi;

January 24, 2025

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