Madras High Court
Venkatesan vs The Managing Director on 21 April, 2021
C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.04.2021
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014 And
Connected Miscellaneous Petitions
Venkatesan ... Appellant in CMA.No.1722 of 2015 &
Respondent in CMA.No.284 of 2014
Gokul ... Appellant in CMA.No.1723 of 2015 &
Respondent in CMA.No.283 of 2014
..Vs..
The Managing Director,
TNSTC Villupuram Limited,
Villupuram
... Respondent in CMA.Nos.1722 & 1723 of 2015 &
Appellant in CMA.Nos.283 & 284 of 2014
Common Prayer: Civil Miscellaneous Appeals filed under Section 173 of
the Motor Vehicles Act, 1988, against the Common Judgment and Decree
dated 10.10.2013 made in MACTOP.Nos.388 & 321 of 2010 on the file of
the Motor Accident Claims Tribunal (In the Vth Court of Small Causes),
Chennai.
For Appellant in
CMA.Nos.1722 & 1723 of 2015
& Respondent in CMA.Nos.283
& 284 of 2014 : Mr.F.Terry Chella Raja
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
For Respondent in CMA.Nos.1722
& 1723 of 2015 &
Appellant in CMA.Nos.283 &
284 of 2014 : Mr.K.J.Sivakumar
COMMON JUDGMENT
CMA.Nos.283 and 284 of 2014 has been filed by the Transport
Corporation challenging the common award dated 10.10.2013 passed by the
Motor Accident Claims Tribunal ( Vth Court of Small Causes, Chennai) in
MCOP.Nos.388 & 321 of 2010. CMA.Nos.1722 & 1723 of 2015 has been
filed by the claimants in MCOP.Nos.388 & 321 of 2010 challenging the
very same common award dated 10.10.2013 seeking for enhancement of
compensation.
2. Heard Mr.F.Terry Chella Raja, learned counsel for the claimants
and Mr.K.J.Sivakumar, learned counsel appearing for the Transport
Corporation.
3. The Transport Corporation has challenged the impugned common
award questioning its liability as well as questioning the quantum of
compensation awarded to the respective claimants in MCOP.Nos. 388 &
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
321 of 2010. The claimants in MCOP.Nos.388 & 321 of 2010 are
unsatisfied with the compensation awarded by the Tribunal under the
impugned common award and are seeking for enhancement of
compensation. The details of the compensation awarded to the respective
claimants under the impugned common award are as follows:
MCOP.No.321 of 2021 corresponds to CMA.No.1723 of 2015 & 283 of
Heads Award Amount
(Rs.)
Loss of income for 3 months 18,000/-
Transportation 5,000/-
Extra nourishment 5,000/-
Damage to clothes 1,000/-
Medical expenses 21,301/-
Attender charges 5,000/-
Pain and suffering 35,000/-
Loss of Amenities 25,000/-
Disability of 30% at the rate of 60,000/-
Rs.2,000/- per percentage
Total 1,75,301/-
Rounded off to 1,75,500/-
MCOP.No.388 of 2021 corresponds to CMA.No.1722 of 2015 & 284 of
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
Heads Award Amount
(Rs.)
Loss of income for 3 months 18,000/-
Transportation 5,000/-
Extra nourishment 5,000/-
Damage to clothes 1,000/-
Medical expenses 91,536/-
Attender charges 5,000/-
Pain and suffering 75,000/-
Loss of Amenities 75,000/-
Disability of 45% at the rate of 90,000/-
Rs.2,000/- per percentage
Total 3,65,536/-
Rounded off to 3,65,500/-
4. Insofar as the first contention raised by the Appellant Transport
Corporation that they are not liable for the cause of the accident is
concerned, the same will have to be necessarily rejected by this Court for
the following reasons:
(a) FIR Ex.P1 has been registered against the driver of the bus owned
by the Appellant Transport Corporation who caused the accident which
resulted in the injuries sustained by the respective claimants. The contention
of the respective claimants as seen from their respective claim petitions as
well as from their depositions corroborates the contents of the FIR.
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
(b) Excepting for examining the driver of the bus who caused the
accident as RW1, no evidence has been produced by the Transport
Corporation to disprove the contention of the respective claimants that only
due to the rash and negligent driving by the driver of the bus, the accident
had happened. Further Mr.Vetrivel, the driver of the bus, who examined as
RW1 is not an independent witness. Unless the evidence of RW1 is
supported by the deposition of any other independent witness, the same
cannot be accepted by this Court.
(c) The Tribunal has rightly concluded that only due to the rash and
negligent driving by the driver of the bus owned by the Transport
corporation, the accident has happened. Hence the first contention of the
Transport corporation questioning their liability is rejected by this Court.
5. Insofar as the quantum of compensation awarded by the Tribunal to
the claimant in MCOP.No.321 of 2010 under the impugned common award
is concerned, this Court is of the considered view that the enhancement of
compensation will have to be granted to both the claimants for the
following reasons:
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
(a) The claimant in MCOP.No.321 of 2010 sustained the following
injuries (i) grievous head injury, (ii)grievous injury in the neck (c) grievous
injury in both legs and (d) multiple grievous injury all over the body. The
Doctor (PW3) who examined him has assessed the partial permanent
disability of the claimant in MCOP.No.321 of 2010 at 60%. However, the
Tribunal after giving due consideration to the nature of injuries sustained by
the claimant in MCOP.No.321 of 2010 has fixed the overall disability of the
claimant at 30%. This Court has examined the reasons given by the Tribunal
for fixing the disability of the claimant in MCOP.No.321 of 2010 at 30%
and is in agreement with the view taken by the Tribunal. The Tribunal has
not given due consideration to the year of the accident before fixing the
disability compensation. The accident happened on 29.12.2009. If the year
of the accident was taken into consideration, the Tribunal ought to have
fixed higher disability compensation to the claimant. This Court is of the
considered view that the disability compensation for the claimant in
MCOP.No.321 of 2010 has to be fixed at Rs.90,000/- instead of Rs.60,000/-
fixed by the Tribunal calculated at Rs.3,000/- per percentage of disability
instead of Rs.2,000/- per percentage of disability fixed by the Tribunal.
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
Accordingly, the disability compensation to the claimant in MCOP.No.321
of 2010 is enhanced from Rs.60,000/- to Rs.90,000/- by this Court.
(b) In the claim petition in MCOP.No.321 of 2010, the claimant has
pleaded that he is a proprietor in Sathya Net Cafe aged 35 years earning
Rs.40,000/- per month and since no documentary evidence was produced by
the claimant, the Tribunal has fixed the notional monthly income of the
claimant in MCOP.No.321 of 2010 on notional basis and has fixed the
notional monthly income at Rs.6,000/-. The Tribunal ought to have given
due consideration to the year of the accident and ought to have noticed that
no contra evidence has been produced by the Transport corporation to
disprove the nature of avocation of the claimant and therefore, ought to have
fixed the notional monthly income of the claimant at a higher sum. This
Court after giving due consideration to the year of the accident and the
nature of avocation of the claimant in MCOP.No.321 of 2010 fixes the
notional monthly income of the claimant at Rs.7,000/- instead of Rs.6,000/-
fixed by the Tribunal.
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
(c) The loss of income has been assessed by the Tribunal for the
claimant in MCOP.No.321 of 2010 at Rs.18,000/- for a period of three
months. The loss of income for a period of three months is a correct
assessment, but however, in view of the enhancement of notional monthly
income by this Court to Rs.7,000/- from Rs.6,000/-, the loss of income for a
period of three months for the claimant in MCOP.No.321 of 2010 is
enhanced to Rs.21,000/- from Rs.18,000/- fixed by the Tribunal.
(d) With regard to the compensation awarded by the Tribunal under
various other heads namely transportation, extra nourishment, damage to
clothing, medical expenses, Attender charges, pain and suffering, loss of
amenities are concerned, the same is a just compensation and there is no
scope for interference. Therefore, the overall compensation awarded by the
Tribunal to the claimant in MCOP.NO.321 of 2010 is enhanced from
Rs.1,75,500/- to Rs.2,14,500/-as detailed hereunder:
Heads Amount Awarded Modified Award
by the Tribunal Amount
(Rs.) (Rs.)
Loss of income for 3 18,000/- 27,000/-
months
Transportation 5,000/- 5,000/-
Extra nourishment 5,000/- 5,000/-
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
Heads Amount Awarded Modified Award
by the Tribunal Amount
(Rs.) (Rs.)
Damage to clothes 1,000/- 1,000/-
Medical expenses 21,301/- 21,301/-
Attender charges 5,000/- 5,000/-,
Pain and suffering 35,000/- 35,000/-
Loss of Amenities 25,000/- 25,000/-
Disability of 30% at the 60,000/- 90,000/-
rate of Rs.2,000/- per
percentage
Total 1,75,301/- 2,14,301/-
Rounded off to 1,75,500/- 2,14,500/-
6. With regard to the claimant in MCOP.No.388 of 2010, the
compensation awarded by the Tribunal will have to be enhanced for the
following reasons:
(a) The Doctor (PW3) who examined the claimant in MCOP.No.388
of 2010 has assessed the partial permanent disability of the claimant at 60%.
However, the Tribunal has reduced the disability to 45%. The Claimant in
MCOP.No.388 of 2010 has underwent surgeries and he has sustained
grievous head injuries, grievous injury in the neck, grievous injury in both
legs, fracture in both legs and multiple grievous injuries all over the body.
Since the claimant has underwent surgeries as seen from the discharge
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
summary which was marked as an Exhibit before the Tribunal and as seen
from the treatment records, disability compensation awarded by the
Tribunal under the impugned award has to be necessarily enhanced. The
Tribunal under the impugned award has observed with regard to the
disability of the claimant in MCOP.No.388 of 2010 based on the disability
certificate issued by the Doctor as follows:
“kDjhuUf;F Vw;gl;l rhiy tpgj;jpy; ,lJ
fhiy vYk;g[ Kwpe;J jw;nghJ khwhf Toa[s;sJ/
vYk;g[ Kwpe;j gFjpapy; mWgl;l jirfs;
,Wfpa[s;sJ/ ,jdhy; 80 lfphpf;F nky; ifia
cah;j;JtJ 50 lfphp Fiwe;Js;sJ/ ,lJ
ifapdhy; ntiy bra;tJ fdkhd bghUl;fis
J}f;FtJ rpukk;/ ,jw;F 40# Cdk;/ tyJ if
eLtpuypy; Vw;gl;l rpijt[ fhaj;jpdhy; tpuy;
K:l;Lfs; ,Ufpa[s;sJ/ tyJ if eLtpuiy klf;f
KlahJ/ tyJ ifapy; bghUl;fis ,Wf;fp gpof;f
KoahJ/ ,jw;F 20# Cdk;/ Mf bkhj;j gFjp
epue;ju Cdkhf 60# fzpj;Js;nsd;”
As seen from the disability certificate, nature of injuries sustained by the
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
claimant in MCOP.No.388 of 2010 is more grievous in nature. Hence
considering the disabilities suffered by the claimant in MCOP.No.388 of
2010, this Court is of the considered view that the assessment of partial
permanent disability of the claimant at 45% by the Tribunal is low and it has
to be enhanced to 50%. Accordingly, the disability of the claimant in
MCOP.No.388 of 2010 is enhanced to 50% from 45% fixed by the Tribunal.
(b) The disability compensation has to be calculated for 50%
disability for the claimant in MCOP.No.388 of 2010 as in the case of the
claimant in MCOP.No.321 of 2010, the Tribunal has also failed to take into
consideration the year of the accident before assessing the disability
compensation. The year of the accident is 2009 and therefore this Court is of
the considered view that the Tribunal ought to have assessed the disability
compensation calculated on the basis of Rs.3,000/- per percentage of
disability instead of Rs.2,000/- per percentage of disability. Since disability
of the claimant in MCOP.No.388 of 2010 is enhanced to 50% by this Court,
the disability compensation of the claimant in MCOP.No.388 of 2010 is
enhanced to Rs.1,50,000/- calculated at Rs.3,000/- per percentage of
disability instead of Rs.2,000/- per percentage of disability fixed by the
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
Tribunal.
(c) As in the case of the claimant in MCOP.No.321 of 2010, the
notional monthly income fixed for the claimant in MCOP.No.388 of 2010
has to be enhanced to Rs.7,000/- instead of Rs.6,000/- fixed by the Tribunal
as the Tribunal has not given due consideration to the year of the accident
which happened in the year 2009.
(d) The loss of income for a period of three months is a correct
assessment made by the Tribunal. Since the notional monthly income is
enhanced to Rs.7,000/-, the loss of income for a period of three months for
the claimant in MCOP.No.388 of 2010 is enhanced to Rs.21,000/- by this
Court.
(e) Insofar as the compensation awarded by the Tribunal under
various other heads namely Transportation, Extra nourishment, damage to
clothing, medical expenses, attender charges, pain and suffering and loss of
amenities are concerned, the same is a just compensation and does not call
for any interference by this Court.
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
(f) Accordingly, the compensation awarded by the Tribunal to the
claimant in MCOP.No.388 of 2010 who is the Appellant in CMA.No.1722
of 2015 is enhanced from Rs.3,65,500/- to Rs.4,28,500/- as detailed
hereunder:
Heads Award Amount Modified
Award
(Rs.)
Amount
(Rs.)
Loss of income for 3 18,000/- 21,000/-
months
Transportation 5,000/- 5,000/-
Extra nourishment 5,000/- 5,000/-
Damage to clothes 1,000/- 1,000/-
Medical expenses 91,536/- 91,536/-
Attender charges 5,000/- 5,000/-
Pain and suffering 75,000/- 75,000/-
Loss of Amenities 75,000/- 75,000/-
Disability of 45% at 90,000/- 1,50,000/-
the rate of Rs.2,000/-
per percentage
Total 3,65,536/- 4,28,536/-
Rounded off to 3,65,500/- 4,28,500/-
7. For the foregoing reasons, there is no merit in the Appeals filed by
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
the Transport Corporation and the respective claimants who are the
Appellants in CMA.Nos.1722 & 1723 of 2015 are entitled for enhancement
of compensation and hence, the appeals filed by the respective claimants
will have to be partly allowed.
8. In the result, CMA.No.283 & 284 of 2014 shall stand dismissed
and CMA.Nos.1722 & 1723 of 2015 shall stand partly allowed by the
enhancing the respective award amount. The Transport Corporation is
directed to deposit a compensation of Rs.2,14,500/- together with interest @
7.5% per annum from the date of claim till the date of deposit, after
deducting the amount already deposited if any to the credit of
MCOP.No.321 of 2010 within a period of four weeks from the date of
receipt of a copy of this Judgment and also directed to deposit a
compensation of Rs.4,28,500/- together with interest @ 7.5% per annum
from the date of claim till the date of deposit, after deducting the amount
already deposited if any to the credit of MCOP.No.388 of 2010 within a
period of four weeks from the date of receipt of a copy of this Judgment. On
such deposit being made, the Tribunal shall transfer the amount lying to the
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
credit of MCOP.No.321 of 2010 to the bank account of the claimant in
MCOP.No.321 of 2010 who is the Appellant in CMA.No.1723 of 2015 /
respondent in CMA.No.283 of 2014 and also transfer the amount lying to
the credit of MCOP.No.388 of 2010 to the bank account of the claimant in
MCOP.No.388 of 2010 who is the Appellant in CMA.No.1722 of 2015 /
respondent in CMA.No.284 of 2014 through RTGS within a period of one
week thereafter. No costs. Consequently, connected miscellaneous petitions
are closed, if any.
21.04.2021
nl
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
To
1. The Vth Court of Small Causes, Chennai.
2.The Section Officer
V.R.Section, High Court of Madras.
ABDUL QUDDHOSE, J.
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
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C.M.A.Nos.1722 & 1723 of 2015, 283 & 284 of 2014
21.04.2021
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