Madras High Court
J.Pandian vs S.Kandasamy on 28 April, 2021
C.M.A.No.1179 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.04.2021
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.1179 of 2015 &
M.P.No.1 of 2015
J.Pandian ... Appellant
..Vs..
1.S.Kandasamy
2.The United India Insurance Co. Ltd.,
13-A, Nethaji Road,
Manjakuppam,
Cuddalore. ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decree made in
MCOP.No.2520 of 2011 dated 29th day of January 2013 on the file of the
Motor Accident Claims Tribunal, Chief Judicial Magistrate Cuddalore
District, Cuddalore.
For Appellant : Ms.Vasantha Mala
for Mr.Um.Ravichandran
For Respondent 2 : Mr.C.Paranthaman
1/12
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C.M.A.No.1179 of 2015
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the claimant
seeking enhancement of compensation under the impugned award dated
29.01.2013 passed by the Motor Accident Claims Tribunal (Chief Judicial
Magistrate, Cuddalore) in MCOP.No.2520 of 2011.
2. Heard Ms.Vasantha Mala, learned counsel for the Appellant and
Mr.C.Paranthaman, learned counsel for the second respondent. Since the
first respondent was set exparte before the Tribunal, notice to the first
respondent is dispensed with by this Court.
3. The Appellant/claimant has filed this appeal on the following
grounds (a) the Tribunal has erroneously fixed the contributory negligence
on the part of the Appellant/claimant and (b) the quantum of compensation
awarded by the Tribunal is inadequate and is not a just compensation.
4. The Tribunal under the impugned award fixed the contributory
negligence of the Appellant/claimant at 50% on the ground that at the time
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C.M.A.No.1179 of 2015
of accident when he was thrown out from the bus, he was under the
influence of Alcohol. The Tribunal under the impugned award directed the
second respondent to pay the Appellant/claimant 50% out of total
compensation of Rs. 92,500/- together with interest and costs as detailed
hereunder:
Heads Award Amount
(Rs.)
Disability Compensation 60,000/-
Pain and suffering and mental 10,000/-
agony
Transport and extra nutritious 5,000/-
Medical Bills 17,500/-
Total 92,500/-
5. With regard to the contributory negligence fixed by the Tribunal is
concerned, the same is confirmed by this Court for the following reasons:
(a) The Appellant/claimant was thrown out of the bus due to which,
he sustained injuries. FIR Ex.A1 dated 05.07.2011 states that the
Appellant/claimant was under the influence of Alcohol at the time of the
accident. He was also standing in the foot-board of the bus.
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C.M.A.No.1179 of 2015
6. Therefore, this Court is of the considered view that the Tribunal
has rightly fixed the contributory negligence of 50% on the part of the
Appellant/claimant and therefore, the contention of the Appellant that no
contributory negligence can be fixed on him is rejected by this Court.
7. The Appellant/claimant sustained injuries on 03.07.2011 as a result
of an accident caused by a vehicle owned by the first respondent and
insured with the second respondent. In the claim petition, the
Appellant/claimant has pleaded that he was a painter, aged 34 years and
earning Rs.10,000/- per month at the time of the accident. The
Appellant/claimant sustained the following injuries as a result of an accident
caused by the insured vehicle (a) Head injury, (b) Fissure fracture left
parietal bone, (c) Patechial Haemorrhage parietal region, (d) Disc bulge C3-
C4,C4-C5, C5-C6 with Nerve root compression (e) Chondromalacia of
cervical spinal cord. The Doctor (PW2) who examined the Appellant has
also given his clinical findings with regard to the injuries sustained by the
Appellant/claimant which are as follows: (a) Hemiparesis right side with
spastic weakness, (b) Limitation of neck movements with pain, (c)
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C.M.A.No.1179 of 2015
Headache and giddyness on and off, (d) A scar 10x 1 Cm. on the right scalp
over the right parietal region and (e) A scar 5 x 4 Cms. on the left knee. The
Doctor (PW2) has also given a radiological findings with regard to the
injuries of the Appellant/claimant which are as follows: “X-ray skull
AP/Lateral view dated 28.07.2012 taken on the Doctor's advice reveals old
fracture left parietal bone. X-ray CS AP/Lateral reveals extensive traumatic
spondylosis.” The Doctor (PW2) in his opinion has also stated that the
Appellant/claimant cannot engage himself in any manual labour and will
find it difficult in his day-to-day routine. The Doctor (PW2) has assessed
the disability of the Appellant/claimant at 50% and the disability certificate
dated 28.07.2012 has also been marked as an exhibit before the Tribunal as
Ex.A8. As seen from the disability certificate, it is clear that the
Appellant/claimant has sustained grievous head injuries. The
Appellant/claimant has also been admitted as an in-patient for almost 15
days as seen from the impugned Award. Learned counsel for the
Appellant/claimant would further submit that even now, the
Appellant/claimant is taking treatment for the injuries. Even though, the
Doctor (PW2) has assessed the disability of the Appellant/claimant at 50%,
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C.M.A.No.1179 of 2015
the Tribunal has reduced the disability to 30% without any basis. After
giving due consideration to the nature of injuries sustained by the
Appellant/claimant which are indeed grievous in nature as seen from the
report of the Doctor, the Tribunal ought not to have reduced the disability to
30%, but ought to have accepted the disability of the Appellant/claimant at
50% as assessed by the Doctor.
8. With regard to the contention of the Appellant/claimant that the
multiplier method ought to have been adopted by the Tribunal considering
the grievous injuries sustained by the Appellant/claimant in the head as well
as in the spinal cord, the same cannot be accepted by this Court in view of
the fact that before the Tribunal, the Appellant/claimant did not adduce any
evidence with regard to the loss of future earning capacity as a result of the
injuries sustained by him. Hence, the said contention is rejected by this
Court.
9. However, as indicated earlier, the disability of the
Appellant/claimant is assessed by this Court at 50% as per the Doctor's
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C.M.A.No.1179 of 2015
report instead of 30% fixed by the Tribunal. The Tribunal has also awarded
a lesser compensation towards disability suffered by the Appellant/claimant
and has not considered the year of the accident before assessing the
disability compensation. The accident happened on 03.07.2011. If the year
of the accident was taken into consideration, the compensation per
percentage of disability would have been more. But however, the Tribunal
has erroneously failed to consider the year of the accident before assessing
the disability compensation. After giving due consideration to the year of
the accident, this Court fixes the disability compensation for 50% disability
suffered by the Appellant/claimant at 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 Tribunal.
10. With regard to other heads of compensation awarded by the
Tribunal is concerned, the same is also low, excepting for awarding a
compensation of Rs.17,500/- towards medical expenses which is supported
by the medical bills which was marked as Ex.A7 before the Tribunal. The
Tribunal has also awarded a compensation of Rs.10,000/- towards pain and
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C.M.A.No.1179 of 2015
suffering and mental agony and Rs.5,000/- towards Transportation cost and
extra nourishment which is low and it has to be necessarily enhanced by this
Court. Having suffered grievous injuries and having suffered 50%
disability, the compensation awarded by the Tribunal towards pain and
suffering and mental agony at Rs.10,000/- has to be enhanced to Rs.50,000/-
by this Court. Insofar as the compensation awarded by the Tribunal towards
transportation cost and extra nourishment at Rs.5,000/- is concerned, the
same is also low and it has to be enhanced to Rs.20,000/- towards
transportation cost by this Court, in view of the fact that due to the grievous
head injuries and spinal cord injuries sustained by the Appellant/claimant,
he would have been regularly visiting hospitals for his treatment and would
have incurred huge transportation cost and Rs.10,000/- towards extra
nourishment. Accordingly, the transportation cost is enhanced to
Rs.20,000/- and extra nourishment is enhanced to Rs.10,000/- by this Court
instead of Rs.5,000/- towards transportation and extra nourishment fixed by
the Tribunal. The Tribunal has erroneously failed to award any
compensation towards Attender charges as the nature of injuries sustained
by the Appellant/claimant would certainly entitle him for the same. This
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C.M.A.No.1179 of 2015
Court awards a compensation of Rs.25,000/- to the Appellant/claimant
towards Attender Charges.
11. The Appellant/claimant was a painter at the time of the accident.
He has sustained grievous head injuries and spinal cord injuries as seen
from the disability certificate issued by the Doctor. Considering the nature
of injuries, the Tribunal ought to have awarded a compensation towards loss
of earning for the Appellant/claimant during the period of treatment. This
court is of the considered view that atleast for a period of twelve months,
the Appellant/claimant would have remained unemployed due to the injuries
sustained by him due to the accident. After giving due consideration to the
year of the accident, this Court fixes the notional monthly income of the
Appellant/claimant at Rs.6,500/- as the year of the accident is 2011.
Therefore the loss of income during the period of treatment for a period of
twelve months is fixed by this Court at Rs.78,000/- calculated at Rs.6,500/-
per month.
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C.M.A.No.1179 of 2015
12. For the foregoing reasons, the compensation awarded by the
Tribunal is enhanced from Rs.92,500/- to Rs.3,50,500/- as detailed
hereunder:
Heads Amount Awarded by Modified Award Amount
the Tribunal (Rs.)
(Rs.)
Disability Compensation 60,000/- 1,50,000/-
Pain and suffering and 10,000/- 50,000/-
mental agony
Transport 5,000/- 20,000/-
Extra nutritious 10,000/-
Medical Bills 17,500/- 17,500/-
Attender Charges -- 25,000/-
Loss of earnings -- 78,000/-
Total 92,500/- 3,50,500/-
13. However since the appeal has been filed by the
Appellant/claimant with a delay of 410 days, the Appellant/claimant is not
entitled for any interest for the said period.
14. In the result, this Civil Miscellaneous Appeal is partly allowed by
enhancing the Award amount from Rs.92,500/- to Rs.3,50,500/-. The
second respondent insurance company is directed to deposit 50% of the
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C.M.A.No.1179 of 2015
award amount i.e., Rs.1,75,250/- together with interest at the rate of 7.5%
per annum from the date of claim till the date of deposit, excluding the
period of delay in filing the appeal, after deducting the amount already
deposited, if any to the credit of MCOP.No.2520 of 2011 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.2520 of 2011 to the bank account of the
Appellant/claimant through RTGS within a period of one week thereafter.
No costs. Consequently, connected miscellaneous petition is closed.
28.04.2021
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Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
To
1. The Chief Judicial Magistrate Cuddalore District, Cuddalore.
2.The Section Officer
V.R.Section, High Court of Madras.
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C.M.A.No.1179 of 2015
ABDUL QUDDHOSE, J.
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C.M.A.No.1179 of 2015
28.04.2021
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