Madras High Court
K.Arumugam vs M.Thirumalai on 27 April, 2021
C.M.A.No.2300 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.2300 of 2012
K.Arumugam ... Appellant
-vs-
1.M.Thirumalai
2.Bajaj Allianz General Insurance Co. Ltd.,
Prince Towers, No.25/26, College Road,
Nungambakkam, Chennai - 34. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, against the Judgment and Decree dated 22.02.2011
made in MACT.O.P.No.3719 of 2007 on the file of the II Judge, Motor
Accidents Claims Tribunal (Small Causes Court), Chennai.
For Appellant : Ms.V.Suguna
For Respondents : M/s.R.Rathna Thara for R2
R1 - Exparte
*********
1/9
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2300 of 2012
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the Judgment
and Decree dated 22.02.2011 made in MACT.O.P.No.3719 of 2007 on the
file of the II Judge, Motor Accidents Claims Tribunal (Small Causes Court),
Chennai.
2. For the sake of convenience, the parties are referred to hereunder
according to their litigative status before the Tribunal.
3. The case of the claimant is that on 24.09.2007, when the claimant
was walking in the Sardar Patel Road from North to South direction near
Velachery Main Road Junction, a Motor Cycle which was driven in a rash
and negligent manner, without following traffic rules, dashed against the
petitioner, due to which, the petitioner sustained grievous injuries. The
claimant is the bullock cart owner cum driver and he was earning Rs.300/-
per day. At the time of accident he was aged about 57 years. Hence, the
claim petition.
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C.M.A.No.2300 of 2012
4. Resisting the same, the second respondent filed counter, that the
accident took place only due to the rash and negligent driving of the
claimant. The motor cycle is insured with the second respondent and it is
pleaded that the motor cycle was driven in a careful manner and he is not
the reason for the accident. Further, the rider of the motor cycle was not
having a valid license and as such, the Insurance Company is not liable to
pay any compensation.
5. On the side of the claimant, P.W.1 and P.W.2 were examined and
Ex.P1 to Ex.P8 were marked. On the side of the respondent, R.W.1 and
R.W.2 were examined and Ex.R1 to Ex.R6 were marked. On perusal of the
evidence available on records and also considering the submission made by
the learned counsel appearing on either side, the Tribunal fastened the entire
liability on the respondents are awarded a sum of Rs.1,47,000/- (Rupees
One Lakh Forty Seven Thousand only) as compensation. Aggrieved by the
same, the appellant filed the present Civil Miscellaneous Appeal for
enhancement of the award amount.
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C.M.A.No.2300 of 2012
6. The learned counsel appearing for the appellant would submit that
the claimant sustained fracture on his left femur. The length of the left leg
has been reduced by four inches. The blood vessels in the left knee area
were cut. The blood circulation in that area has been reduced and the
petitioner is limping and walking with the help of stick. Therefore, the
P.W.2 / Doctor has assessed his disability at 75%. Even then the Tribunal
awarded only a sum of Rs.1,00,000/- and fixed the disability at 50%. It is
pleaded that the claimant was earning Rs.300/- per day and because of the
injuries sustained by him, he lost his income for the period of six months.
He had undergone surgery on 06.11.2007 and he had taken treatment as in-
patient for 71 days and even then the Tribunal awarded a sum of
Rs.20,000/- towards pain and sufferings.
7. Per contra, the learned counsel for the second respondent would
submit that the Doctor, who treated the claimant, did not issue any disability
certificate. The P.W.2 / Doctor assessed the disability at 75%. Therefore,
the Tribunal rightly fixed the partial disability at 50% at the rate of
Rs.2000/- per percentage of disability. The disability also is partial in
nature and there is absolutely no loss of earning capacity because of the
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C.M.A.No.2300 of 2012
injuries sustained by the claimant. He further stated that though the
claimant averred that he is a bullock cart driver cum owner, there is no
evidence adduced by the claimant to show that he was earning a sum of
Rs.300/- per day at the time of accident.
8. Heard Ms.V.Suguna, learned counsel appearing for the appellant
and M/s.R.Rathna Thara, learned counsel appearing for the second
respondent.
9. Due to the accident, the claimant sustained fracture of femur bone
with vascular injury. He had undergone surgery on 06.11.2007, he was
admitted as in-patient on 24.09.2007 and he was discharged from hospital
on 15.12.2007. Therefore, for more than 71 days he had taken treatment.
Though the Doctor who treated the claimant did not issue any disability
certificate, P.W.2 has assessed the disability of the claimant as 75% and that
it is a partial permanent disability. Due to the injuries sustained by the
claimant, he could not work for six months. Even then the Tribunal
awarded less compensation and as such it is liable to be increased.
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C.M.A.No.2300 of 2012
10.Accordingly the compensation awarded by the Tribunal stands
modified as under :-
Sl.No Heads Amount awarded by Amount awarded by
the Tribunal this Court
1 Partial Disability Rs.1,00,000/- Rs.1,25,000/-
2 Loss of Income Rs.18,000/- Rs.36,000/-
3 Transport Charges Rs.5000/- Rs.5000/-
4 Extra Nourishment Rs.2000/- Rs.15,000/-
5 Damage of Clothes Rs.1000/- Rs.1000/-
6 Medical Expenses Rs.1000/- Rs.1000/-
7 Pain and Sufferings Rs.20,000/- Rs.50,000/-
Total Rs.1,47,000/- Rs.2,33,000/-
12. In the result the Civil Miscellaneous Appeal is partly allowed as
follows:-
(i) The award passed by the Tribunal is enhanced from Rs.1,47,000/-
to Rs.2,33,000/-.
(ii) The award amount will carry the interest at the rate of 7.5% per
annum from the date of the claim petition till the date of deposit.
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C.M.A.No.2300 of 2012
(iii) The appellant is not entitled to any interest for the delay period
if any in filing this Civil Miscellaneous Appeal.
(iv) The second respondent is directed to deposit the entire
enhanced award amount, less the amount, if any, already deposited, along
with accrued interest within a period of six weeks from the date of receipt
of copy of this Judgment.
(v) On such deposit, the appellant is permitted to withdraw the
amount awarded as above by filing proper application before the Tribunal.
(vi) There shall be no order as to costs.
27.04.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
rna
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2300 of 2012
To
1.The II Judge, Small Causes Court,
Motor Accidents Claims Tribunal,
Chennai.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2300 of 2012
G.K.ILANTHIRAIYAN, J.
rna
C.M.A.No.2300 of 2012
27.04.2021
https://www.mhc.tn.gov.in/judis/
