Madras High Court
K.Thanikachalam vs M.Mohan on 23 August, 2021
C.M.A.No.1221 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.1221 of 2016
K.Thanikachalam ... Appellant
Vs
1.M.Mohan
2.The New India Assurance Company Limited,
No.45, Moore Street,
Chennai – 600 001. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act 1988 against the Judgment and Decree dated
30.10.2009 and made in MACTOP.No.3783 of 2006 on the file of the
Motor Accident Claims Tribunal (II court of Small Causes, Chennai).
For Appellant : Mr.F.Terry Chella Raja
For Respondent 1 : Exparte
For Respondent 2 : Mr.M.Krishnamoorthy
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1221 of 2016
JUDGMENT
(Heard through video conferencing)
This appeal has been filed by the claimant seeking enhancement of
compensation under the impugned award dated 30.10.2009 passed by the
Motor Accident Claims Tribunal (II Court of Small Causes, Chennai) in
MCOP.No.3783 of 2006.
2. The Appellant/claimant unsatisfied with the quantum of
compensation awarded by the Tribunal has preferred this appeal seeking
enhancement.
3. The Tribunal under the impugned award has assessed the
compensation payable to the Appellant /claimant at Rs.5,13,000/- as
detailed hereunder:
Heads Assessed award amount
(Rs.)
Loss of earning capacity 3,84,000/-
(3000 x 12 = 36000 -1/3 =
24000 x 16)
Pain and suffering 26,000/-
Loss of amenities 10,000/-
Loss of expectation of 10,000/-
life
Loss of earnings 15,000/-
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C.M.A.No.1221 of 2016
Heads Assessed award amount
(Rs.)
Transportation 2,000/-
Extra nourishment 2,000/-
Damages 1,000/-
Other expenses 1,000/-
Disability 60,000/-
Medical expenses 2,000/-
Total 5,13,000/-
4. Since the Appellant/claimant has claimed only Rs.2,00,000/- in his
claim petition, the Tribunal has reduced the compensation payable to the
Appellant/claimant at Rs.2,00,000/- and directed the second respondent
insurance company to pay the Appellant / claimant a compensation of
Rs.2,00,000/- together with interest at the rate of 9.5% per annum from the
date of claim till the date of realisation and recover the same from the first
respondent, the owner of the vehicle.
5. The Appellant/claimant has sustained fracture of right ankle bone,
fracture of right fibula and three other simple injuries as a result of an
accident caused by a vehicle owned by the first respondent and insured with
the second respondent. The Doctor has assessed the partial permanent
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C.M.A.No.1221 of 2016
disability of the Appellant/claimant as seen from the disability certificate
(Ex.P6) at 65%. The Appellant/claimant was hospitalised due to the injuries
sustained by him as a result of the accident on two occasions namely (a)
from 24.12.2005 to 26.12.2005 and from 26.12.2005 to 04.01.2006. The
nature of injuries sustained by the Appellant/claimant and the period of
hospitalisation has also not been disputed by the respondents as seen from
the evidence available on record. The discharge summaries issued by the
respective hospitals have also been marked as Ex.P2 &Ex.P3 before the
Tribunal. After giving due consideration to the nature of injuries sustained
by the Appellant/claimant as well as the period of hospitalisation, this court
is of the considered view that the disability assessed by the Tribunal at 60%
is a correct assessment.
6. The Tribunal has awarded Rs.3,84,000/- as compensation towards
loss of earning capacity to the Appellant/claimant. The Appellant/claimant
has claimed that he was a Wholesale Rice Merchant and earning
Rs.20,000/- per month. Since no documentary evidence was produced by
the Appellant/claimant to prove that he was earning Rs.20,000/- per month
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C.M.A.No.1221 of 2016
at the time of the accident, the Tribunal has fixed the notional monthly
income of the Appellant/claimant at Rs.3,000/- which in the considered
view of this court is a correct assessment and the same is confirmed by this
Court. The Appellant/claimant was aged 40 years at the time of the accident
which has also not been disputed by the respondents. For a person aged 40
years, the Tribunal ought to have adopted 15 multiplier but erroneously has
adopted 16 multiplier under the impugned award. Since it is an injury claim,
the Tribunal ought not to have deducted 1/3rd towards personal expenses of
the Appellant/claimant. There cannot be any deduction for an injury claim,
hence, the same is modified by this Court by not deducting any amount
towards personal expenses of the Appellant/claimant. Hence the loss of
earning capacity to the Appellant/claimant is reassessed by this Court at
Rs.3,24,000/- (3000 x 12 x 15 x 60%) instead of Rs.3,84,000/- erroneously
fixed by the Tribunal.
7. The Tribunal has also committed error by separately awarding
compensation towards partial permanent disability at Rs.60,000/- which will
amount to duplication as the Tribunal has already awarded compensation
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C.M.A.No.1221 of 2016
towards loss of earning capacity by adopting multiplier method. Hence, the
compensation towards partial permanent disability at Rs.60,000/- awarded
by the Tribunal is set aside by this Court.
8. With regard to the compensation assessed by the Tribunal under
various other heads namely loss of income, pain and suffering, extra
nourishment, transportation, medical expenses, damages, other expenses,
loss of amenities and loss of expectation of life are concerned, they cannot
be considered to be inadequate as alleged by the Appellant/claimant and
therefore, the same is confirmed by this Court.
9. The Tribunal under the impugned award has erroneously awarded
interest at 9.5% per annum. As per the settled practice, the Tribunal ought
to have awarded interest at 7.5% per annum. Accordingly, this Court
refixes the interest at 7.5% per annum instead of 9.5% erroneously fixed by
the Tribunal.
10. For the foregoing reasons, the compensation awarded by the
Tribunal is enhanced by this Court to Rs.3,93,000/- from Rs.2,00,000/- in
the following manner:
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C.M.A.No.1221 of 2016
Heads Award Amount
(Rs.)
Loss of earning capacity 3,24,000/-
(3000 x 12 x 15 x 60)
Pain and suffering 26,000/-
Loss of amenities 10,000/-
Loss of expectation of 10,000/-
life
Loss of earnings 15,000/-
Transportation 2,000/-
Extra nourishment 2,000/-
Damages 1,000/-
Other expenses 1,000/-
Medical expenses 2,000/-
Total 3,93,000/-
11. In the result, this civil miscellaneous appeal is partly allowed. The
second respondent Insurance Company is directed to deposit the modified
award amount of Rs.3,93,000/- together with interest at 7.5% per annum
from the date of claim till the date of realisation, excluding the period of
delay in filing this appeal i.e., 708 days, and costs, after deducting the
amount already deposited if any, to the credit of MCOP.No.3783 of 2006
within a period of four weeks from the date of receipt of a copy of this
Judgment and on such deposit recover the same from the first respondent,
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C.M.A.No.1221 of 2016
the owner of the vehicle. On such deposit, the Tribunal shall transfer the
amount lying to the credit of MCOP.No.3783 of 2006 to the bank account
of the Appellant/claimant through RTGS within a period of one week
thereafter. No costs.
23.08.2021
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Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
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C.M.A.No.1221 of 2016
To
1. The II Court of Small Causes, Chennai
2.The Record Section,
High Court of Madras
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1221 of 2016
ABDUL QUDDHOSE, J.
nl
C.M.A.No.1221 of 2016
23.08.2021
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