Madras High Court
Minor Gogulraj vs Tamil Nadu State Transport ... on 26 April, 2021
CMA Nos. 352 of 2018 etc.,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 05.04.2022
DATED: 26.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CMA Nos. 352, 356, 496 & 497 of 2018
C.M.A.No. 352 of 2018:
Minor Gogulraj ... Appellant/Petitioner
Vs
1. Tamil Nadu State Transport Corporation Limited
No.12, Ramakrishna Main Road, Salem -7.
2. N.Chinnusamy
3. National Insurance Company Ltd.,
D.O.Balaji Towers, 2nd Floor, No.11,
Ramakrishna Road, Salem -7. ... Respondents/Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the M.V.
Act, 1988 as amended by Act 54 of 1994 to set aside the order made in
M.C.O.P.No. 19 of 2011 on the file of the Motor Accident Claims Tribunal
cum Special District Court, Salem, dated 23.12.2016 and for enhancement
of compensation.
1/24
https://www.mhc.tn.gov.in/judis
CMA Nos. 352 of 2018 etc.,
C.M.A.No. 356 of 2018:
Jayalakshmi ... Appellant/Petitioner
Vs
1. N.Chinnusamy
2. National Insurance Company Ltd.,
D.O.Balaji Towers, 2nd Floor, No.11,
Ramakrishna Road, Salem -7.
3. Tamil Nadu State Transport Corporation Limited
No.12, Ramakrishna Main Road, Salem -7.
(Notice to R1 and R3 may be dispensed with for the time being
and separate petition has been filed for the same)
... Respondents/Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the M.V.
Act, 1988 as amended by Act 54 of 1994 to set aside the order made in
M.C.O.P.No. 2456 of 2010 on the file of the Motor Accident Claims
Tribunal cum Special District Court, Salem, dated 23.12.2016 and for
enhancement of compensation.
C.M.A.No. 496 of 2018:
K.Sudanthira Vanitha ... Appellant/Petitioner
Vs
2/24
https://www.mhc.tn.gov.in/judis
CMA Nos. 352 of 2018 etc.,
1. Tamil Nadu State Transport Corporation Limited
No.12, Ramakrishna Main Road, Salem -7.
2. N.Chinnusamy
3. National Insurance Company Ltd.,
D.O.Balaji Towers, 2nd Floor, No.11,
Ramakrishna Road, Salem -7. ... Respondents/Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the M.V.
Act, 1988 as amended by Act 54 of 1994 to set aside the order made in
M.C.O.P.No. 20 of 2011 on the file of the Motor Accident Claims Tribunal
cum Special District Court, Salem, dated 23.12.2016 and for enhancement
of compensation.
C.M.A.No. 497 of 2018:
Valarmathi ... Appellant/Petitioner
Vs
1. Tamil Nadu State Transport Corporation Limited
No.12, Ramakrishna Main Road, Salem -7.
2. N.Chinnusamy
3. National Insurance Company Ltd.,
D.O.Balaji Towers, 2nd Floor, No.11,
Ramakrishna Road, Salem -7. ... Respondents/Respondents
3/24
https://www.mhc.tn.gov.in/judis
CMA Nos. 352 of 2018 etc.,
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the M.V.
Act, 1988 as amended by Act 54 of 1994 to set aside the order made in
M.C.O.P.No. 40 of 2011 on the file of the Motor Accident Claims Tribunal
cum Special District Court, Salem, dated 23.12.2016 and for enhancement
of compensation.
***
For Appellant in
all C.M.As. : Mr. C.Kulanthaivel
For 1st Respondent
in CMA Nos. 352, 496 & 497/18
3rd Respondent in CMA.No.
356/18 : Mr. A.Sundaravadhanam
For 2nd Respondent in
C.M.A.No. 356 of 2018 : No appearance
For 3rd Respondent in
CMA Nos. 352, 496 & 497/18
2nd Respondent in CMA No.
356/18 : Ms. N.B.Surekha
For 1st Respondent in
C.M.A.No. 356/2018 : No appearance
https://www.mhc.tn.gov.in/judis
CMA Nos. 352 of 2018 etc.,
COMMONJUDGMENT
All the four Civil Miscellaneous Appeals arise out of a common
Judgment delivered in 21 Motor Accident Claims Original Petitions filed
before the District Court, Salem / Motor Accident Claims Tribunal with
respect to one single accident. Two persons unfortunately died in the
accident and several others including the 21 petitioners had suffered
injuries.
2. Aggrieved by the quantum and compensation granted in four of
the Motor Accident Claims Original Petitions, the present Civil
Miscellaneous Appeals have been filed.
3. C.M.A.No. 352 of 2018 had been filed against the
compensation granted in M.C.O.P.No. 19 of 2011. C.M.A.No. 356 of 2018
had been filed against the compensation granted in M.C.O.P.No. 2456 of
2010. C.M.A.No. 496 of 2018 had been filed against the compensation
granted in M.C.O.P.No. 20 of 2011. C.M.A.No. 497 of 2018 had been filed
against the compensation granted in M.C.O.P.No. 40 of 2012.
https://www.mhc.tn.gov.in/judis
CMA Nos. 352 of 2018 etc.,
4. The District Court, Salem, Motor Accident Claims Tribunal, by
Judgment dated 23.12.2016 had disposed of all 21 Motor Accident Claims
Original Petitions by a common Judgment.
5. All the claimants were passengers in a Government Transport
Bus bearing Registration No. KA-30/N 0637 proceeding from Omalur to
Tharamangalam on 28.09.2010. When the bus was near Auttukaranur
turning from Omalur to Tharamangalam main road, at around 5 p.m., in the
evening in the opposite direction, a Lorry bearing Registration No. KA-01-
AB-5997 carrying load of cotton bales had come in a rash and negligent
manner and had dashed against the bus and the right portion of the bus was
damaged and about 40 passengers, who were sitting on the right portion
suffered grievous and simple injuries. Two passengers died on the spot.
6. In this connection, FIR in Cr.No. 866 of 2010 had been
registered by the Omalur Police Station under Sections 279, 337, 338 and
304-A IPC against the driver of the Lorry.
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CMA Nos. 352 of 2018 etc.,
7. During the course of trial in the 21 connected cases, the
Tribunal had examined 32 witnesses as PW-1 to PW-32 and had also
examined four witnesses on the side of the respondents as RW-1 to RW-4.
On the side of the petitioners, Exs. P-1 to P-107 had been marked and on the
side of the respondents, Exs. R-1 to R-8 had been marked. As Court
documents, Exs. X-1 to X-4 had been marked. Finally, by common
Judgment dated 23.12.2016, compensation was granted to the injured and
also to the legal representatives of the deceased. In these four appeals, this
Court is concerned only with the compensation granted in the
aforementioned four Motor Accident Claims Original Petitions.
C.M.A.No. 352 of 2018 against M.C.O.P.No. 19 of 2011:
8. The claimant was a minor boy Gogulraj, who was aged 11
years. The nature of injuries suffered by him were as follows:-
“fracture of the right frontal bone with
adjacent frontal parenchyma contusion.”
9. He was a school student. The percentage of disability assessed
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CMA Nos. 352 of 2018 etc.,
by PW-20 Dr. S.P.Mariappan was 45% and he had issued disability
certificate Ex.P-81. He was in hospital for 21 days from 28.09.2010 to
17.10.2010. He had made a total claim of Rs.6,00,000/- and the Tribunal
had awarded a sum of Rs.1,63,510/-. Seeking enhancement of
compensation, the present Appeal had been filed.
10. It had been urged by the learned counsel for the appellant
Mr.C.Kulanthaivel that PW-20 Doctor had deposed that there was a lengthy
scare on the front right side head showing the disfigurement. It was
claimed that he also suffered from epilepsy and loss of memory and also
suffered frequent headaches and giddiness. It was also stated that he was
not able to concentrate in his studies and was not able to walk in a straight
line.
11. The learned counsel placed reliance on the Judgment reported
in 2013 ( 2) TNMAC 338 (SC) [ Master Mallikarjun Vs. Divisional
Manager and another] and claimed that further compensation should be
granted.
12. On the other hand, it is the contention of Ms. N.B.Surekha,
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CMA Nos. 352 of 2018 etc.,
learned counsel for the third respondent that no document had been
produced to show that the injured had sustained future complications. She
also contended that there was no evidence that he had stopped his studies.
It was also stated that the Doctor, who gave the disability certificate was not
the Doctor, who treated the claimant. It was however stated that no
compensation had been granted under the heads pain and suffering and
attender charges.
13. Having considered the rival submissions, the only point to be
decided is with respect to the compensation to be granted.
14. In Master Mallikarjun referred supra, the Hon'ble Supreme
Court had determined a notional lumsum compensation for 45% permanent
disability at Rs.4,00,000/-.
15. In the instance case, there had been damage to the front right
side head and this injury as a strong probability of causing epilepsy and loss
of memory. This also, for a young boy of 11 years would be a source to
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CMA Nos. 352 of 2018 etc.,
impair his prospectus of studying in specialised courses. The threat of
epilepsy would linger and would require continuous meditation.
Withdrawal of meditation would lead to immediate seizures. Therefore, I
would adopt the ratio give in Master Mallikarjun aforementioned and grant
a notional compensation of Rs.4,00,000/-.
16. The Tribunal had granted medical expenses of Rs.63,510/-,
which I would retain. With respect to pain and suffering, I would grant a
sum of Rs.20,000/- and also grant a sum of Rs.5,000/- for attender charges.
The compensation now granted would be as follows:-
(i) Notional Compensation : Rs.4,00,000/-
(ii) pain and suffering : Rs. 20,000/-
(iii) Medical expenses : Rs. 63,510/-
(iv) attender charges : Rs. 5,000/-
----------------
Total Rs.4,88,510/-
-----------------
17. In fine, the Appeal is allowed. No costs. The award is
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CMA Nos. 352 of 2018 etc.,
modified. The compensation award is enhanced to Rs.4,88,510/-.
18. The Insurance Company is directed to deposit the enhanced
amount less the amount already deposited, if any, with interest at the rate of
7.5% per annum from the date of petition till the date of realisation within a
period of eight weeks from the date of receipt of a copy of this order. On
such deposit, if the appellant/claimant had attained the age of majority, is
permitted to withdraw the award amount, after adjusting the amount, if any,
already withdrawn. If he had not attained the age of majority, then his
natural guardian can withdraw the accrued interest once every four months.
C.M.A.No. 356 of 2018 against M.C.O.P.No. 2456 of 2010:
19. The claimant was aged about 41 years and was a Tailor and
Insurance Agent. The nature of the injuries suffered were as follows:-
“1. Head Injury,
2. Fracture right maxilla lateral wall,
nasal bone,
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CMA Nos. 352 of 2018 etc.,
3. Communited displaced fracture
shaft of right femur,
4. Fracture spinous process of C3 C4
C5 and C7 Vertebra,
5. Displaced fracture right clavicle,
6. Undisplaced fracture bilateral
scapula,
7. Fractures of spinous in D1, D2 and
D3,
8. Right transverse fracture of L1 L2
and L3
9. Right hand fracture shaft of 3rd MC,
10. Compound Dislocation MCP Joint
Right Index Finger with Neuro Vascular Bundle
cut.”
20. The percentage of disability had assessed at 60% by PW-29
Dr.Srinivasan and he had issued disability certificate Ex.P-99 and at 40% by
PW-32 Dr. Shanmugasundaram and he had issued disability certificate Ex.P-
105. The claimant had taken treatment as inpatient for 48 days and also
underwent surgery. She claimed that she earned a sum of Rs.20,000/- per
month. She claimed a sum of Rs.20,00,000/- lakhs but the Tribunal awarded
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CMA Nos. 352 of 2018 etc.,
a sum of Rs.9,44,170/-.
21. Questioning that grant, the appeal has been filed. It had been
contended by the learned counsel for the appellant by pointing out the
nature of the injuries suffered that 60% disability should have been taken
into consideration and since she had lost the eye sight in her right eye,
permanent disability of 40% for loss of eye sight should have been taken
into consideration. She was also a Tailor and insurance agent and has now
been reduced to vegetative status and cannot do any other work. It was
therefore stated that the multiplier method must be adopted.
22. The learned counsel for the respondent stated that the
claimant had been in hospital for 58 days and there was no proof for the
income. It was stated that the notional income could be determined at
Rs.9,000/-. It was stated that 50% disability for the whole body can be
taken into consideration.
23. I have carefully considered the rival submissions.
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CMA Nos. 352 of 2018 etc.,
24. With respect to the income, I would determine the monthly
income at Rs.9,000/-. It is only appropriate that 25% is granted towards
future prospectus. This would indicate the monthly income would be
Rs.11,250/-. If I were to take the disability at 60% for the whole body and
adopt a multiplier of '14', the loss of earning power would be Rs.11,34,000/-
[ 11,250 x 12 x 14 x 60 /100]. The Tribunal had granted a sum of
Rs.7,76,403/- towards medical bills, which can be retained. The Tribunal
had granted a sum of Rs.10,000/- towards nutrition which I would retain. I
would also grant a sum of Rs.50,000/- towards pain and suffering, a sum of
Rs.10,000/- towards transport, a sum of Rs.15,000/- towards attender
charges, a sum of Rs.20,000/- towards future medical expenses and a sum of
Rs.15,000/- towards loss of amenities. The compensation now granted
would be as follows:-
(i) Loss of earning power : Rs.11,34,000/-
(ii) pain and suffering : Rs. 50,000/-
(iii) Medical expenses : Rs. 7,76,403/-
(iv) attender charges : Rs. 15,000/-
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CMA Nos. 352 of 2018 etc.,
(v) Nutrition : Rs. 10,000/-
(vi) Transport : Rs. 10,000/-
(vii) Future Medical expenses: Rs. 15,000/-
----------------
Total Rs.20,10,403/-
-----------------
25. In fine, the Appeal is allowed. No costs. The award is
modified. The compensation award is enhanced to Rs.20,10,403/-.
26. The Insurance Company is directed to deposit the enhanced
amount less the amount already deposited, if any, with interest at the rate of
7.5% per annum from the date of petition till the date of realisation within a
period of eight weeks from the date of receipt of a copy of this order. On
such deposit, the appellant/claimant is permitted to withdraw the award
amount, after adjusting the amount, if any, already withdrawn.
C.M.A.No. 496 of 2018 against M.C.O.P.No. 20 of 2011:
https://www.mhc.tn.gov.in/judis
CMA Nos. 352 of 2018 etc.,
27. The claimant K.Sudanthira Vanitha was aged 19 years and
was a Tuition Teacher. She had suffered the following injuries:-
“Fracture maxilla left, fracture
mandible left and fracture nasal bone and loss of
8 teeths in upper jaw.
28. The percentage of disability had been assessed at 45% by
PW-25, Dental Surgeon who had issued disability certificate Ex.p-86 and
had 26% as assessed by PW-31 (ENT) specialist who had issued disability
certificate Ex.P-102. She took treatment for 9 days. She claimed a total
income of Rs.5,000/- per month. She claimed a sum of Rs.6,00,000/- lakhs,
but the Tribunal had awarded a sum of Rs.1,51,080/-.
29. The learned counsel for the appellant pointed out that at the
young age of 19 years, the face of the appellant had been disfigured and
there is deformity to be borne. She is unable to chew food properly. She is
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CMA Nos. 352 of 2018 etc.,
not able to speak properly. Her teeth function are restricted. The scar
however is visible. The learned counsel also stated that she has reduced
smell power and increased pain over the nose. She was a teacher and taking
tuition.
30. The learned counsel for the respondent on the other hand
stated that she had been hospitalised from 11.10.2010 whereas the accident
took place on 28.092010. It was pointed out that there no document had
been produced to show that she had taken treatment at any other place. It
was further stated that the Doctor, who determined the disability was not the
Doctor, who treated her. It was stated that the compensation granted was
reasonable.
31. Having considered the facts, I would grant a sum of
Rs.2,000/- per percentage of disability and determine, the disability at 30%
owing to the loss of teeth and more importantly owing to the disfigurement
in the face. This would mean that the loss of earning power would be
Rs.60,000/- [2,000 x 30]. I would further grant a sum of Rs.44,080/-
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CMA Nos. 352 of 2018 etc.,
towards medical bills, which can be retained. I would grant a sum of
Rs.20,000/- towards extra nourishment, a sum of Rs.30,000/- towards pain
and suffering, a sum of Rs.10,000/- towards transport expenses, a sum of
Rs.10,000/- towards loss of amenities and discomfort, a sum of Rs.45,000/-
towards loss of teeth injury, a sum of Rs.10,000/- towards future medical
expenses. The compensation now granted would be as follows:-
(i) Loss of earning power : Rs. 60,000/-
(ii) pain and suffering : Rs. 30,000/-
(iii) Medical expenses : Rs. 44,080/-
(iv) Extra nourishment : Rs. 20,000/-
(v) Loss of amenities and
discomfort : Rs. 10,000/-
(vi) Transport : Rs. 10,000/-
(vii) Future Medical expenses: Rs. 10,000/-
(viii) Loss of teeth injury : Rs. 45,000/-
----------------
Total Rs.2,29,080/-
-----------------
32. In fine, the Appeal is allowed. No costs. The award is
modified. The compensation award is enhanced to Rs.2,29,080/-.
33. The Insurance Company is directed to deposit the enhanced
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CMA Nos. 352 of 2018 etc.,
amount less the amount already deposited, if any, with interest at the rate of
7.5% per annum from the date of petition till the date of realisation within a
period of eight weeks from the date of receipt of a copy of this order. On
such deposit, the appellant/claimant is permitted to withdraw the award
amount, after adjusting the amount, if any, already withdrawn.
C.M.A.No. 497 of 2018 against M.C.O.P.No. 40 of 2011:
34. The claimant Valarmathi was aged 30 years and was a
Tailoring and Tailoring Supervisor. She had suffered the following injuries:-
“Left acromio clavicular joint
subluxation in the left shoulder..
35. The percentage of disability had assessed at 29% by PW-22
Srinivasan who had issued disability certificate Ex.P-84. She was in
hospital for 5 days. She claimed that she earned a sum of Rs.10,000/- per
month. She claimed a sum of Rs.5,00,000/-, but the Tribunal awarded a sum
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CMA Nos. 352 of 2018 etc.,
of Rs.64,550/-.
36. The learned counsel for the appellant stated that there was
difficulty to lift the left hand and in lifting any weight and in doing normal
functions. It was stated that her left shoulder was mal united.
37. The learned counsel for the respondent however stated that no
document produced to show that she had suffered such future
complications. The Doctor, who gave the disability certificate was not the
Doctor who had given her treatment.
38. After having considering the rival arguments, I would grant
the following compensation:-
I would determine the disability at 29% and grant a sum of
Rs.2,000/- per percentage [2,000 x 29] = Rs.58,000/- and grant a sum of
Rs.6,550/- towards medical expenses. I would also grant a sum of
Rs.20,000/- towards pain and suffering and a sum of Rs.5,000/- towards
https://www.mhc.tn.gov.in/judis
CMA Nos. 352 of 2018 etc.,
transport expenses. I would also grant a sum of Rs.10,000/- towards
nutrition expenses. The compensation now granted would be as follows:-
(i) 29% Disability
[2,000 x 29] : Rs. 58,000/-
(ii) pain and suffering : Rs. 20,000/-
(iii) Medical expenses : Rs. 6,550/-
(iv) Transport expenses : Rs. 5,000/-
(v) Nutrition : Rs. 10,000/-
----------------
Total Rs. 99,550/-
-----------------
39. In fine, the Appeal is allowed. No costs. The award is
modified. The compensation award is enhanced to Rs. 99,550/-.
40. The Insurance Company is directed to deposit the enhanced
amount less the amount already deposited, if any, with interest at the rate of
7.5% per annum from the date of petition till the date of realisation within a
period of eight weeks from the date of receipt of a copy of this order. On
such deposit, the appellant/claimant is permitted to withdraw the award
amount, after adjusting the amount, if any, already withdrawn.
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CMA Nos. 352 of 2018 etc.,
41. In the result:-
(1) C.M.A.No. 352 of 2018 is allowed. The award is modified.
The compensation award is enhanced to Rs.4,88,510/-. The order dated
23.12.2016 made in M.C.O.P.No. 19 of 2011 on the file of the Motor
Accident Claims Tribunal cum Special District Court, Salem, is set aside;
(2) C.M.A.No. 356 of 2018 is allowed. The award is modified.
The compensation award is enhanced to Rs.20,10,403/-. The order dated
23.12.2016 made in M.C.O.P.No. 2456 of 2010 on the file of the Motor
Accident Claims Tribunal cum Special District Court, Salem, is set aside;
(3) C.M.A.No. 496 of 2018 is allowed. The award is modified.
The compensation award is enhanced to Rs.2,29,080/-. The order dated
23.12.2016 made in M.C.O.P.No. 20 of 2011 on the file of the Motor
Accident Claims Tribunal cum Special District Court, Salem, is set aside;
and
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CMA Nos. 352 of 2018 etc.,
(4) C.M.A.No. 497 of 2018 is allowed. The award is modified.
The compensation award is enhanced to Rs. 99,550/-. The order dated
23.12.2016 made in M.C.O.P.No. 40 of 2011 on the file of the Motor
Accident Claims Tribunal cum Special District Court, Salem, is set aside;
(5) No costs.
26.04.2022
Index:Yes / No
Speaking / Non-Speaking order
vsg
To
1. Special District Court
Motor Accident Claims Tribunal, Salem.
C.V.KARTHIKEYAN, J.
vsg
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
CMA Nos. 352 of 2018 etc.,
Pre-Delivery judgment in
CMA Nos. 352, 356, 496 & 497 of 2018
26.04.2022
https://www.mhc.tn.gov.in/judis
