Madras High Court
S.Gnanadurai vs P.Gurusamy on 30 April, 2021
C.M.A.Nos.2234 & 2235 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.04.2021
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.Nos.2234 & 2235 of 2015
S.Gnanadurai ... Appellant in C.M.A.No.2234 of 2015
T.Ramar Pandi ... Appellant in C.M.A.No.2235 of 2015
..Vs..
1.P.Gurusamy
2.Bharti Axa General Insurance Company Ltd.,
No.162, Anna Salai,
Chennai – 2. ... Respondents in both CMAs.
Common Prayer: Civil Miscellaneous Appeals filed under Section 173 of
the Motor Vehicles Act, 1988, against the decree and judgment dated
09.02.2015 made in MCOP.Nos.541 & 570 of 2013 on the file of Motor
Accident Claims Tribunal, (IIIrd Small Causes Court) Chennai.
For Appellant in both CMAs. : Mr.K.Varadhakamaraj
For 2nd Respondent in both CMAs. : Mr.S.Arun kumar
For 1st Respondent in both CMAs. : Ex parte
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C.M.A.Nos.2234 & 2235 of 2015
COMMON JUDGMENT
These Civil Miscellaneous Appeals have been filed by the respective
claimants seeking for enhancement under the impugned common award
dated 09.02.2015 passed by the Motor Accident Claims Tribunal (III Court
of Small Causes) in M.C.O.P.No.541 of 2013 and 570 of 2013.
2. Heard Mr.K.Varadha Kamaraj, learned counsel for the Appellants
and Mr.S.Arunkumar, learned counsel for the second respondent. The first
respondent has remained exparte both before the Tribunal as well as this
Court.
3.The respective claimants unsatisfied with the quantum of
compensation awarded by the Tribunal have challenged the impugned
common award dated 09.02.2015 passed in M.C.O.P.No.541 of 2013 and
570 of 2013.
4. The Tribunal under the impugned common award dated
09.02.2015 directed the second respondent to pay the claimants
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C.M.A.Nos.2234 & 2235 of 2015
compensation for the injuries sustained by them, as a result of an accident
caused by a vehicle owned by the first respondent and insured with the
second respondent. The details of the compensation awarded to the
respective claimants are as follows:
MCOP.No.541 of 2013 corresponds to CMA.No.2234 of 2015
Heads Award Amount
(Rs.)
Loss of earnings 10,000/-
Transport to Hospital 5,000/-
Extra nourishment 5,000/-
Damage to clothing 500/-
Medical Expenses 49,860/-
Loss of amenities 5,000/-
Pain and suffering 30,000/-
Disability 70,000/-
(35 x 2000)
Total 1,75,360/-
MCOP.No.570 of 2013 corresponds to CMA.No.2235 of 2015
Heads Award Amount
(Rs.)
Loss of earnings 45,000/-
Transport to Hospital 15,000/-
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C.M.A.Nos.2234 & 2235 of 2015
Heads Award Amount
(Rs.)
Extra nourishment 15,000/-
Damage to clothing 500/-
Medical Expenses 1,91,830/-
Attender charges 9,000/-
Loss of amenities 25,000/-
Loss of expectation of 10,000/-
life
Pain and suffering 60,000/-
Disability 1,26,000/-
(70 x 1800)
Total 4,97,330/-
5. The claimant in M.C.O.P.No.541 of 2013 which corresponds to
C.M.A.No.2234 of 2015 has sustained the following injuries:
a. both bone fracture at right hand
b. fracture at neck of 4th toe at right foot.
6. The Doctor(PW3) who examined the claimant in MCOP.No.541 of
2013 has assessed that he has suffered 35% disability for the both bone
fracture in his right hand and 15% disability for fracture in his neck and his
4th toe in his right foot and the total disability assessed by the Doctor was
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C.M.A.Nos.2234 & 2235 of 2015
50%. However, the Tribunal after giving due consideration to the nature of
the injuries sustained by the claimant in MCOP.No.541 of 2013, fixed the
disability at 35% and has awarded the disability compensation at
Rs.70,000/- calculated at Rs.2000/- per percentage of disability for 35%
disability. The injuries sustained by the claimant has not been disputed by
the second respondent Insurance Company before the Tribunal. The
accident happened on 16.11.2012. The Tribunal failed to give due
consideration to the year of accident before assessing the disability
compensation. Hence, this Court is of the considered view that the disability
awarded by the Tribunal at Rs.70,000/- is low and it has to be enhanced to
Rs.1,05,000/- by this Court, calculated at Rs.3000/- per percentage of
disability for 35% disability assessed by the Tribunal instead of Rs.2000/-
per percentage of disability fixed by the Tribunal.
7. The claimant in M.C.O.P.No.541 of 2013 was a Supervisor for a
construction company and aged about 23 years at the time of accident.
Considering the nature of the avocation of the claimant and the year of the
accident, he would certainly be entitled to get higher monthly income. The
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C.M.A.Nos.2234 & 2235 of 2015
Tribunal has fixed the monthly income of the claimant at Rs.6,000/- which
in the considered view of this Court is low and it has to be fixed at
Rs.8,000/-. This Court is also of the considered view that atleast for a period
of three months, the claimant would have been unable to do his work.
Hence, this Court awards a compensation of Rs.24,000/- to the claimant
towards loss of income for the treatment period calculated at Rs.8,000/- per
month for a period of three months instead of Rs.10,000/- fixed by the
Tribunal.
8. The Tribunal under the impugned award has awarded a
compensation of Rs.49,860/- towards medical expenses which is supported
by the bills and Rs.30,000/- towards pain and suffering which is a just
compensation and accordingly, the same is confirmed by this Court.
However, the Tribunal has awarded a lesser compensation towards
Rs.5,000/- towards transport, Rs.5,000/- towards extra nourishment and
Rs.5,000/- towards loss of amenities which has to be enhanced to
Rs.10,000, Rs.10,000/- and Rs.10,000/- respectively. This Court also
confirms the assessment made by the Tribunal at Rs.500/- towards damage
of clothing.
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C.M.A.Nos.2234 & 2235 of 2015
9. The Tribunal has also failed to award any compensation towards
Attender Charges. This Court awards a compensation of Rs.5,000/- towards
Attender Charges to the claimant in MCOP.No.541 of 2013.
10. For the foregoing reasons, the compensation awarded by the
Tribunal to the claimant in M.C.O.P.No.541 of 2013 which corresponds to
C.M.A.No.2234 of 2014 is enhanced from Rs.1,75,360 to Rs.2,44,360/- by
this Court as detailed hereunder:
Heads Amount awarded Modified
by the Tribunal Award
Amount
(Rs.)
(Rs.)
Loss of earnings 10,000/- 24,000/-
Transport to 5,000/- 10,000/-
Hospital
Extra nourishment 5,000/- 10,000/-
Damage to clothing 500/- 500/-
Medical Expenses 49,860/- 49,860/-
Loss of amenities 5,000/- 10,000/-
Pain and suffering 30,000/- 30,000/-
Disability 70,000/- 1,05,000/-
(35 x 2000) (35 x 3000)
Total 1,75,360/- 2,44,360/-
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C.M.A.Nos.2234 & 2235 of 2015
11. Insofar as other claim which is the subject matter of
M.C.O.P.No.570 of 2013 corresponding to C.M.A.No.2234 of 2015 is
concerned, the claimant in that case is also entitled for enhancement of
compensation for the following reasons:
a. The claimant sustained the following injuries as a result of the
accident: commutated fracture at right leg and 5 Inch shortening in right leg
and limping and walking with stick. The Doctor who examined the claimant
(P.W.3) has assessed his disability at 70%. The Tribunal has awarded
disability compensation at Rs.1,26,000/- for the 70% disability calculated at
Rs.1,800/- per percentage of disability. The claimant was hospitalized for a
period of 61 days from 21.11.2012 to 20.01.2013. The injuries sustained
by the claimant as indicated above and the period of his hospitalization have
not been disputed by the second respondent Insurance Company before the
Tribunal. As in the earlier case, this court fixes the disability compensation
calculated at Rs.3,000/- per percentage of disability instead of Rs.1,800/-.
Hence, the disability compensation is enhanced by this Court to
Rs.2,10,000/- calculated at Rs.3,000/- per percentage of disability for 70%
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C.M.A.Nos.2234 & 2235 of 2015
disability from Rs.1,26,000 calculated at Rs.1,800/- per percentage of
disability fixed by the Tribunal.
(b) Similarly, after giving due consideration to the nature of injuries
sustained by the claimant which resulted in 5 inch shortening of his right leg
and has made him limping and walking with stick, the compensation
awarded by the Tribunal towards loss of income during the period of
treatment has to be necessarily enhanced by this Court. The notional
monthly income of the claimant fixed by the Tribunal at Rs.5,000/- is also
low as the Tribunal has not given due consideration to the nature of the
avocation of the claimant who was a Supervisor in a construction company
at the time of accident. This Court is of the considered view that the
notional income of the claimant will have to be enhanced to Rs.8,000/- from
Rs.5,000/- fixed by the Tribunal. The nature of injuries sustained by the
claimant would have certainly prevented him from doing his regular
avocation for atleast a period of 9 months which the Tribunal has rightly
assessed. Since the notional monthly income is enhanced to Rs.8,000/- by
this Court, the Loss of Income during the period of treatment is enhanced by
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C.M.A.Nos.2234 & 2235 of 2015
this Court to Rs.72,000/- from Rs.45,000/- fixed by the Tribunal calculated
at Rs.8,000/- per month for a period of 9 months.
(c) Similarly, the compensation awarded by the Tribunal under the
heads transport at 15,000/-, extra nourishment at Rs.15,000/-, attender
charges at Rs.9,000/- and loss of amenities at Rs.25,000/- are also low and
this Court enhances the same to Rs.25,000/-, Rs.25,000/-, Rs.20,000/- and
Rs.40,000/- respectively.
(d) As regards the compensation awarded by the Tribunal under the
head loss of expectation of life is concerned, the claimant is not entitled as
per the settled law and therefore, the same is set aside by this Court.
(e) As regards the compensation awarded by the Tribunal, towards
damage to clothing at Rs.500/-, medical expenses at Rs.1,91,830/- which is
supported by bills and Rs.60,000/- towards pain and sufferings are
concerned, the same is confirmed by this Court.
12. For the foregoing reasons, this Court enhances the award passed
by the Tribunal from Rs.4,97,330/- to Rs.6,44,330/- as below:
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C.M.A.Nos.2234 & 2235 of 2015
Heads Amount Modified Award
awarded by the Amount
Tribunal (Rs.)
(Rs.)
Loss of earnings 45,000/- 72,000/-
Transport to Hospital 15,000/- 25,000/-
Extra nourishment 15,000/- 25,000/-
Damage to clothing 500/- 500/-
Medical Expenses 1,91,830/- 1,91,830/-
Attender charges 9,000/- 20,000/-
Loss of amenities 25,000/- 40,000/-
Loss of expectation of 10,000/- --
life
Pain and suffering 60,000/- 60,000/-
Disability 1,26,000/- 2,10,000/-
(70 x 1800) (70 x 3000)
Total 4,97,330/- 6,44,330/-
13. In the result, CMA.No.2234 of 2015 shall stand partly allowed by
enhancing the compensation from Rs.1,75,360/- to Rs.2,44,360/- and
CMA.No.2235 of 2015 shall stand partly allowed by enhancing the
compensation from Rs.4,97,330/- to Rs.6,44,330/-. No costs.
14. The second respondent Insurance company is directed to deposit
the modified compensation amount of Rs.2,44,360/- together with interest
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C.M.A.Nos.2234 & 2235 of 2015
at the rate of 7.5% per annum as assessed by the Tribunal from the date of
claim till the date of deposit, after deducting the amount already deposited if
any to the credit of MCOP.No.541 of 2013 and also directed to deposit
another sum of Rs.6,44,330/- as compensation together with interest at the
rate of 7.5% per annum as assessed by the Tribunal from the date of claim
till the date of deposit, after deducting the amount already deposited if any
to the credit of MCOP.No.570 of 2013 within a period of four weeks from
the date of receipt of a copy of this common judgment. On such deposit
being made, the Tribunal shall transfer the amount lying to the credit of
MCOP.No.541 of 2013 to the bank account of the claimant in
MCOP.No.541 of 2013 who is the Appellant in CMA.No.2234 of 2015 and
also transfer the amount lying to the credit of MCOP.No.570 of 2013 to the
bank account of the claimant in MCOP.No.570 of 2013 who is the
Appellant in CMA.No.2234 of 2015 through RTGS within a period of one
week thereafter.
30.04.2021
msv
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C.M.A.Nos.2234 & 2235 of 2015
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
To
1. The (IIIrd Small Causes Court) Chennai
2.The Section Officer
V.R.Section, High Court of Madras.
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C.M.A.Nos.2234 & 2235 of 2015
ABDUL QUDDHOSE, J.
msv
C.M.A.Nos.2234 & 2235 of 2015
30.04.2021
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