Madras High Court
Appellant vs Unknown on 26 April, 2021
C.M.A.No.1850 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.1272 of 2016
and C.M.A.No.1438 of 2017
and C.M.P.No.9807 of 2016
...Appellant
Vs
...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988,
For Appellant :
For Respondents :
JUDGMENT
C.M.A.No.1272 of 2016 has been filed by the Insurance Company
challenging the Award dated 10.02.2016 passed by the Motor Accident
Claims Tribunal (IV Court of Small Causes), Chennai in MCOP.No.2400 of
2013 on the following grounds:
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C.M.A.No.1850 of 2016
(a)The Tribunal failed to take note of the absence of valid permit to
ply the vehicle and fitness certificate and therefore according to them, the
question of fastening the liability on the Insurance Company will not arise.
(b)The Insurer (owner of the vehicle) having willfully violated the
policy the policy conditions, that the claimants are not entitled for any
compensation from the Insurance Company.
(c)The Tribunal failed to consider the evidence of RW1 and RW2 and
has also properly not appreciated the documents filed by the Appellants
Insurance Company namely Exs.R1 to R5.
C.M.A.No.1438 of 2017 has been filed by the claimant seeking for
enhancement of compensation as according to her, the compensation
awarded by the Tribunal under the Award dated 10.02.2016 passed by the
Motor Accident Claims Tribunal (IV Court of Small Causes), Chennai in
MCOP.No.2400 of 2013 which is also the subject matter of C.M.A.No.1272
of 2016 is inadequate and not a just compensation.
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C.M.A.No.1850 of 2016
The Tribunal under the impugned Award directed the Appellant in
C.M.A.No.1272 of 2016 to pay a compensation of Rs.1,69,500/- to the
claimant who is the Appellant in C.M.A.No.1438 of 2017 a compensation of
Rs.1,69,500/- as detailed hereunder:
Particulars Amount (Rs.)
Disability 90,000
Pain and suffering 30,000
Extra nourishment 5,000
Transport to Hospital 5,000
Damages to clothes 1,000
Attender charges 6,250
Medical expenses 15,500
Future Medical Expenses 5,000
Loss of Income 6,500
Loss of Amenities 5,000
Total Rs.1,69,250
The same is rounded to Rs.1,69,500
Before the Tribunal, the Insurance Company has also filed their counter
wherein they have categorically stated that the insured (owner of the vehicle)
has committed policy violation and by not having a valid fitness certificate.
RW1, the RTO official has also deposed before the Tribunal that on the
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C.M.A.No.1850 of 2016
date of the accident, the insured Auto bearing Registration No.TN-10-C-7233
was not possessing a valid fitness certificate. Through RTO official Mr.Karthik
(RW1) the permit copy for the insured Auto was marked as Ex.R3 before the
Tribunal. As seen from the permit, it got expired on 06.06.2010 itself whereas
the accident happened on 08.02.2013. Therefore, it is clear that the insured
(owner of the vehicle) who is the second respondent in C.M.A.No.1272 of
2016 has committed policy violation despite the conclusive evidence produced
by the Insurance Company before the Tribunal that the insured has committed
policy violation, the Tribunal erroneously disregarded the evidence produced by
the Insurance Company and they failed to grant pay and recovery rights to the
Insurance Company which they are legally entitled to as per the settled law.
Therefore, based on the materials and evidence available on record, this Court
grants pay and recovery rights to the Insurance Company which is the Appellant
in C.M.A.No.1272 of 2016 which the Tribunal has erroneously failed to grant
the said right under the impugned Award.
Insofar as the quantum of compensation awarded by the Tribunal is
concerned, this Court considering the nature of injuries sustained by the
claimant who is the Appellant in C.M.A.No.1438 of 2017 will have to
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C.M.A.No.1850 of 2016
necessarily enhance the compensation for the following reasons:
(a)The claimant who is the Appellant in C.M.A.No.1438 of 2017 has
sustained the following injuries:
(i) fracture of scapula bone on the right shoulder
(ii) fracture of right side of the 3rd, 4th and 5th ribs
(iii) breachial artery
2.The Appellant/claimant unsatisfied with the quantum of compensation
awarded by the Tribunal has preferred this appeal seeking for enhancement.
3.Heard Mr.K.Varadha Kamaraj, learned counsel for the Appellant
and Mr.J.Michael Visuvasam, learned counsel for the second respondent.
4.The details of the compensation awarded by the Tribunal under the
impugned Award are as follows:
Particulars Amount (Rs.)
Loss of income 15,000
Transport to hospital 10,000
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C.M.A.No.1850 of 2016
Particulars Amount (Rs.)
Extra nourishment 7,000
Medical expenses 5,768
Loss of amenities 5,000
Pain and suffering 30,000
Disability at 40% at Rs.1,800/- 72,000
per percentage
Total Rs.1,45,268
5.Appellant/claimant is an Auditor in Mars Consultants and in his
claim petition, he has pleaded that he was earning Rs.20,000/- per month.
6.The Tribunal has fixed the monthly income of the
Appellant/claimant at Rs.15,000/- based on the evidence available on record.
Therefore, the said assessment is a correct assessment and there is no scope
for interference by this Court.
7.The Appellant/claimant has sustained the following injuries:
(i) Bicondylar fracture left tibia
(ii) for repairing the same, steel plate fixed on the Appellant/claimant
through open surgery.
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C.M.A.No.1850 of 2016
The Appellant/claimant was an inpatient at St.Isabels Hospitals from
18.11.2011 to 08.12.2011 for a period of 20 days. The nature of injuries
sustained by the Appellant/claimant as well as the period of hospitalization
has not been disputed by the respondents before the Tribunal as seen from
the evidence available on record.
8.The Tribunal has assessed the disability of the Appellant/claimant at
40% after giving due consideration to the disability certificate issued by the
Doctor who examined the Appellant/claimant (PW2).
9.This Court after giving due consideration to the nature of injuries
sustained by the Appellant/claimant is of the considered view that the
assessment of the disability of the Appellant/claimant at 40% even though
the Doctor has assessed the disability at 50% is a correct assessment.
10.The Tribunal has awarded a compensation of Rs.15,000/- towards
loss of income to the Appellant/claimant at Rs.15,000/- calculated for a
period of one month.
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C.M.A.No.1850 of 2016
11.This Court is of the considered view that in view of the nature of
injuries sustained by the Appellant/claimant as indicated above, the Tribunal
ought to have awarded a higher compensation towards loss of income to the
Appellant/claimant as he would have been unable to do his regular
employment as an Auditor for more number of months.
12.This Court is of the considered view that for a period of almost 3
months, the Appellant/claimant would have been unable to do his regular
employment as a result of the injuries sustained by him due to the accident.
This Court, therefore enhances loss of income fixed by the Tribunal from
Rs.15,000/- to Rs.40,000/-.
13.The accident happened in the year 2011. The Tribunal has failed
to give due consideration to the year of the accident before fixing the
disability compensation. The Tribunal has awarded only a sum of
Rs.1,800/- per percentage of disability for an accident that happened in the
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C.M.A.No.1850 of 2016
year 2011 which has to be necessarily enhanced by this Court.
14.After giving due consideration to the year of the accident, this
Court enhances the disability compensation from Rs.72,000/- to
Rs.1,20,000/- calculated at Rs.3,000/- per percentage of disability for the
40% disability suffered by the Appellant/claimant.
15.The Tribunal has also failed to Award any compensation towards
attender charges which he is legally entitled to in view of the nature of the
injuries sustained by him and the period of his hospitalization. Accordingly,
this Court fixes a sum of Rs.10,000/- towards attender charges.
16.The Tribunal has also awarded a lesser compensation towards
extra nourishment charges, damage to clothing and loss of amenities which
has to be necessarily enhanced to Rs.10,000/-, Rs,1,000/- and Rs.10,000/-
respectively.
17.Insofar as the compensation awarded by the Tribunal under the
heads transport to hospital, pain and suffering and medical expenses are
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C.M.A.No.1850 of 2016
concerned, the same is a just compensation and there is no scope for
interference.
18.For the foregoing reasons, this Court enhances the compensation
awarded by the Tribunal to the Appellant/claimant from Rs.1,45,268/- to
Rs.2,36,768/- as detailed hereunder:
Particulars Award enhanced
Amount Amount
(Rs.)
Loss of income 15,000 40,000
Transport to hospital 10,000 10,000
Extra nourishment 7,000 10,000
Damage to clothing 500 1,000
Medical expenses 5,768 5,768
Loss of amenities 5,000 10,000
Pain and suffering 30,000 30,000
Disability at 40% at Rs.1,800/- 72,000 1,20,000
per percentage
Total Rs.1,45,268 Rs.2,36,768
19.In the result, the appeal is partly allowed. The second respondent
Insurance Company is directed to deposit the modified amount awarded by
this Court together with interest at the rate of 7.5% per annum from the date
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C.M.A.No.1850 of 2016
of claim till the date of deposit after deducting the amount already deposited if
any to the credit of MCOP.No.338 of 2012 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 credit of
MCOP.No.338 of 2012 to the bank account of the Appellant through RTGS
within a period of one week thereafter. No costs.
26.04.2021
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
pam
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C.M.A.No.1850 of 2016
To
1.The Motor Accident Claims Tribunal,
(III Small Causes Court), Chennai.
2.The Section Officer
V.R.Section, High Court of Madras.
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C.M.A.No.1850 of 2016
ABDUL QUDDHOSE, J.
pam
C.M.A.No.1272 of
2016 and C.M.A.No.1438 of 2017
26.04.2021
http://www.judis.nic.in
