C.M.A.No.3070 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16.09.2022
CORAM
THE HON'BLE Ms.JUSTICE P.T.ASHA
C.M.A.No.3070 of 2014
K.Prasanna Kumar ... Appellant
Vs
1.M.Joseph
2.United India Insurance Co. Ltd.,
No.134, Greams Road,
Chennai – 6. ... Respondents
PRAYER : This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
17.07.2014 and made in M.A.C.T.O.P.No.565 of 2011 on the file of the
Motor Accident Claims Tribunal and Special Judge I, Chennai.
For Appellant : M/s.A.Subadra
For R1 : Ex-parte
For R2 : Mr.C.Paranthaman
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C.M.A.No.3070 of 2014
JUDGMENT
The claimant is before this Court seeking an enhancement of the award granted by the Motor Accident Claims Tribunal, Special Sub Judge, No.1, Chennai.
2. The brief facts are as follows:-
(i) The petitioner, who is working as a Manager in New Tech Solution Company was travelling as a pillion rider in the motorcycle bearing Registration No.TN-03-C-7998 on 29.07.2010 at about 19.30 hrs. The rider of the motorcycle in which the petitioner was travelling was driving the same in a very rash and negligent manner and at a dangerous speed, when the vehicle reached the Maduravoyal Tollgate, all of a sudden, the driver applied the brake, as a result, the motorcycle has capsized, by reason of which, the petitioner has sustained grievous injuries.
(ii) It is his case that he is earning a monthly income of Rs.20,000/- and therefore, he had claimed a compensation of Rs.20,00,000/- stating that the accident had occurred only on account of the negligence on the 2/10 https://www.mhc.tn.gov.in/judis C.M.A.No.3070 of 2014 part of the driver of the first respondent's vehicle, in which, the petitioner was travelling, who also happened to be the owner of the vehicle. The second respondent is the Company with which the vehicle is insured.
3. The first respondent remained ex-parte before the Tribunal and the second respondent-Insurance Company that had contested the case.
4.The second respondent-Insurance Company had denied the accident and the fact that the accident had occurred on account of the rash and negligent driving by the first respondent. They had also pointed out that the complaint regarding the accident had been lodged only with a delay. The Insurance Company had further contended that the compensation claimed was excessive and they had also put the first respondent to strict proof that he was in possession of valid driving license and the vehicle was properly insured.
5.The Tribunal below on considering the evidence had held that the 3/10 https://www.mhc.tn.gov.in/judis C.M.A.No.3070 of 2014 rash and negligent driving of the first respondent had resulted in the accident and consequently mulcted the responsibility on the second respondent as the Insurer of the first respondent's vehicle.
6. The Tribunal had ultimately awarded a compensation of sum of Rs.7,94,000/-. Aggrieved by the same, the appellant is before this Court.
7.M/s.Subadra, learned counsel appearing on behalf of the appellant would submit that the appellant had been an inpatient for three spells. The first spell was from 29.07.2010 (date of accident) till 06.08.2010. The second hospitalization was from 07.08.2010 till 01.09.2010 and the final hospitalization was from 22.10.2010 till 25.10.2010. In all, according to her, the appellant had been hospitalized for a period of 37 days.
8.She would further submit that he had undergone emergency diagnostic laparotomy with splenecktomy and also wound debridement with UTPT left tibia. The appellant had suffered intensive pain in his 4/10 https://www.mhc.tn.gov.in/judis C.M.A.No.3070 of 2014 abdomen and left arm and left leg. She would also submit that P.W.2, doctor had assessed the disability regarding the abdomen and clavical fracture at 80%. The doctor has opined that the appellant suffers from indigestion and loss of appetite and further suffers stillness of the left shoulder elbow and wrist and that he had found difficult to lift or hold an object as also to climb steps and to squat. P.W.3, doctor has assessed the disability caused to the liver at 10%.
9.She would therefore, submit that the Tribunal has not taken into fact that the disability is of permanent nature and erred in calculating compensation by adopting the percentage method. She would also submit that the appellant had to resign his job, which is evidenced by Ex.P.14, letter said to be issued by the Company stating that the appellant has resigned on 01.07.2011. Therefore, she would submit that the Tribunal has committed a grave error in calculating the compensation under the head of disability under the percentage method.
10.Further, she would contend that the future medical expenses of 5/10 https://www.mhc.tn.gov.in/judis C.M.A.No.3070 of 2014 a sum of Rs.1,00,000/- has not been granted though Ex.P12 has been filed showing the approximate cost at Rs.1,50,000/-.
11.Per contra, Mr.C.Paranthaman, learned counsel appearing on behalf of the second respondent/Insurance Company would submit that the appellant has not sustained any loss of earning capacity or that his normal functioning has been affected. He would submit that the appellant after stepping down from his earlier office has joined the services of other company at a higher salary. Therefore, there is no loss of income and the Tribunal was justified in calculating the loss of income on account of the disability by adopting percentage method. He would submit that a reasonable award has been passed.
12.Heard the learned counsels for the parties and perused the materials available on record.
13.Admittedly, the appellant has not suffered a serious loss of 6/10 https://www.mhc.tn.gov.in/judis C.M.A.No.3070 of 2014 earning since post the accident, he has taken up employment in a new company at a higher salary. The appellant had been in and out of the hospital on three occasions and had also undergone surgery. The appellant has been assessed a disability of 80% by the Ortho Doctor and 10% by the General Physician. The Tribunal has taken 75% as a disability and adopting a sum of Rs.2,000/- per percentage granted a compensation of Rs.1,50,000/- under the head of compensation for disability. The amount per percentage can be enhanced to a sum of Rs.3,000/-. Therefore, the amount under the head of loss of income on account of disability would be a sum of Rs.2,25,000/- (Rs.3,000/- x 75). Under Ex.P12, the very same doctor who had earlier attended to the appellant has given an estimate of Rs.1,50,000/- for future medical expenses. The Tribunal has accepted the document, however, granted a compensation of Rs.50,000/-, the same has necessarily to be enhanced. Therefore, the modified compensation is as follows :-
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C.M.A.No.3070 of 2014
Heads Awarded by Awarded
the by this
Tribunal Court
(Amount in (Amount in
Rs.) Rs.)
Loss of income during 27,000 27,000
hospitalization
Transport to Hospital 5,000 5,000
Extra nourishment 10,000 10,000
Medical treatment 4,92,000 4,92,000
Pain and sufferings 50,000 50,000
Compensation for continuing and 1,60,000 2,40,000
permanent disability
(enhanced)
Future medical expenses 50,000 1,50,000
(enhanced)
Total 7,94,000 9,74,000
14.The Civil Miscellaneous Appeal is allowed and the award of the Tribunal is modified, enhancing the compensation amount from Rs.7,94,000/- to Rs.9,74,000/-. The second respondent-Insurance Company is directed to deposit the said amount to the credit of M.C.O.P.No.565 of 2011 along with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit and costs as awarded by the Tribunal, less, the amount, if any already deposited, 8/10 https://www.mhc.tn.gov.in/judis C.M.A.No.3070 of 2014 within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit being made, the appellant/claimant is permitted to withdraw the award amount along with accrued interest and costs as awarded by the Tribunal, less, the amount, if any already withdrawn, by filing necessary application before the Tribunal. The appellant/claimant is directed to pay the Court fee for the enhanced compensation amount, if required. The Tribunal below shall not disburse the enhanced amount till such time as the certified copy showing proof of payment of Court fee has been produced by the appellant/claimant. In other respects, the Award of the Tribunal is hereby confirmed. There shall be no order as to costs in the present appeal.
16.09.2022 Index:Yes / No Speaking Order : Yes/No sp To
1. The Motor Accident Claims Tribunal, Special Sub Judge, No.1, Chennai.
2. The Section Officer, V.R.Section, High Court, Madras. 9/10 https://www.mhc.tn.gov.in/judis C.M.A.No.3070 of 2014 P.T.ASHA, J., sp C.M.A.No.3070 of 2014 16.09.2022 10/10 https://www.mhc.tn.gov.in/judis