Madras High Court
Rajendiran vs Kodeeswaran on 25 August, 2021
C.M.A.No.3885 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE S. VAIDYANATHAN
C.M.A.No.3885 of 2019
Rajendiran ...Appellant
Vs.
1. Kodeeswaran
2. The New India Assurance Company Ltd.,
Nagapattinam,
Rep. by its Branch Manager,
Having his office at
T.S.No. 1817, Neela South Road,
Nagapattinam Town and District ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to enhance the amount awarded in
M.C.O.P.No.235 of 2015 dated 24.06.2019 on the file of Motor Accident
Claims Tribunal, (District Judge) Karaikal,
For Appellant : Mr.K.Varadha Kamaraj
For Respondents : Mr. J. Michael Visuvasam
for R2
R1 – No appearance
1/9
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C.M.A.No.3885 of 2019
JUDGMENT
This Civil Miscellaneous Appeal has been filed for enhancement of the
compensation awarded by the order dated 24.06.2019 made in
M.C.O.P.No.235 of 2015 on the file of Motor Accident Claims Tribunal,
(District Judge), Karaikal.
2. The appellant is the claimant who filed M.C.O.P.No.235 of 2015,
claiming a sum of Rs.50,00,000/- as compensation for the injuries suffered by
him in the accident that took place on 17.05.2015.
3. The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to the rash and negligent
driving by the driver of the car belonging to the 1st respondent and directed
the first and second respondents to pay a sum of Rs.15,80,000/- as
compensation jointly and severally, to the appellant/claimant respectively.
4. Not being satisfied with the amount awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
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C.M.A.No.3885 of 2019
5. The learned counsel appearing for the appellant contended that in
the accident the appellant sustained fracture in his left leg and admitted in
hospital as inpatient from 17.05.2015 to 02.06.2015 and underwent surgery
and again admitted in hospital on 20.06.2015 underwent another surgery on
21.06.2016 and discharged from hospital on 24.06.2016. Medical Board has
assessed that the appellant suffered 65% permanent disability and the
Tribunal granted a meagre sum of Rs.13,16,250/- towards disability. Due to
the injuries, the appellant is unable to continue his work as he was doing
earlier. The Tribunal ought to have adopted multiplier method for granting
compensation towards future loss of earning power along with 25%
enhancement towards future prospects. The appellant was working as a
Mazon and was earning a sum of Rs.600/- per day at the time of accident. But
the Tribunal fixed a meager sum of Rs.9,000/- per month as notional income
of the appellant and awarded compensation for loss of income only for three
months. The Tribunal ought to have fixed monthly income of the appellant at
Rs.9,000/- and granted compensation towards loss of income for 12 months.
The Tribunal has not awarded any amount towards attendant charges, extra
nourishment. The amounts awarded by the Tribunal towards pain and
sufferings, extra nourishment and transportation are meager and prayed for
enhancement of compensation.
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C.M.A.No.3885 of 2019
6. The learned counsel for the appellant submitted that the claimant
who was 39 years old sustained fracture in his left leg and being a Mazon, he
is unable to carry out the day today work and that partial shorten limb,
deformity present in left leg, extensive scar and infection sinuses present and
he is unable to climb, squat, and sit. There was a malunion of tibia and fibula
on left leg. The Medical Board assessed disability at 65% and that the
Tribunal instead of granting higher compensation due to the severe injuries
caused, taken the monthly income as Rs.9,000/- even though there was an
evidence let in by PW2 that he was drawing Rs.600/- per day. The injured
was admitted in Ram Bone and Joint Hospital, Mayiladuthurai and undergone
surgery. Ex.P.10 establishes that the claimant suffered serious injuries but the
Tribunal has awarded compensation for Pecuniary damages at Rs.13,16,250/-
and awarded only 25% for future prospects and not at 40% and hence the
appellant would be entitled for enhancement of compensation.
7. Mr.Michael Visuvasam, learned counsel for the Insurance Company
would contend that there is no dispute with regard to the accident and injuries
sustained, but, the Medical Board has erroneously assessed 65% of total
disability under various categories including scar and infection as 37%,
stiffness of ankle knee 6%, functional disability at 36%, muscle wastage 3%,
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C.M.A.No.3885 of 2019
deformities 7%, shortening 4%, pain components 6% when there is functional
disability at 36% and in total disability at 65%, hence the Tribunal awarded
compensation under the head pecuniary damages taking note of the entire
65% disability assessed by the Medical Board and that loss of future earning
has been taken by adopting multiplier method. It is no doubt that the claimant
was admitted in the hospital initially for a period of 17 days and thereafter,
subsequently for 5 days totally 22 days. But, the subsequent admission and
discharge not disclosed about the disability as assessed by the Medical Board
at 37%. Hence though the Insurance Company has not preferred an appeal, it
is a fit case where compensation has got to be reduced as excess amount has
been granted.
8. Heard the learned counsel for the appellant and the learned counsel
for the second respondent and perused the materials on record.
9. The factum of injury and disability at 65% is not disputed, the only
dispute is that methodology adopted by the Medical Board in distributing the
disability percentage under different heads. I find that the Tribunal has rightly
taken note of loss of future prospects and awarded compensation and the
compensation under the pecuniary damages at Rs.13,16,250/- has been
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C.M.A.No.3885 of 2019
granted which includes loss of future earning capacity also. Hence I find no
justification in enhancing the compensation under that head. It is no doubt
true that the details of injury at Paragraph No.11 would make it very clear
that the claimant suffered injuries and he is unable to do his day-to-day
affairs, his disability is permanent and he was unable to stand long, sit in
cross leg, unable to ride motorcycle, losing strength and balance on the left
leg and severe pain while moving his left leg and totally his movement is
restricted. The claimant being a Mazon, due to this disability, he could not
continue his work and hence this Court is of the view that the Tribunal
awarded compensation under various other heads appears to be very nominal
compensation enhancement in those heads. Hence, this Court is of the view
that the Tribunal grant of compensation under Pecuniary damages is perfectly
correct but awarding compensation under the Transportation, Attender
charges & Loss of income for during the course of treatment for three months
needs to be enhanced and hence the compensation granted by the Tribunal so
modified. Thus, the compensation granted by the Tribunal is modified as
follows:-
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C.M.A.No.3885 of 2019
S.No Description Amount Amount Award
awarded by awarded confirmed or
Tribunal by this enhanced or
(Rs) Court (Rs) granted
Non-pecuniary
damages
1. Pain and suffering 50,000/- 50,000/- confirmed
2. Extra Nourishment 5,000/- 20,000/- enhanced
3. Compensation for 13,16,250/- 13,16,250/- confirmed
pecuniary damages for
partial disability
4. Medical expenses 1,63,000/- 1,63,000/- confirmed
5. Transportation 10,000/- 20,000/- enhanced
6. Attender charges 8,000/- 30,000/- enhanced
7. Loss of income for Rs.27,000/- For six enhanced
during the course of months
treatment for three 54,000/-
months @ Rs.9,000/-
Total 15,79,250/- 16,53,250/- Enhanced by
Rounded off to Rs.74,000/-
Rs.15,80,000/-
10. In the result, the Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.15,79,250/- is hereby
enhanced to Rs.74,000/- with interest and costs. The 2nd respondent-Insurance
Company is directed to deposit the enhanced award amount, with interest,
less the amount already deposited, if any, within a period of six weeks from
the date of receipt of a copy of this order. On such deposit, the
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C.M.A.No.3885 of 2019
appellant/claimant is permitted to withdraw the award amount with interest
and costs, after adjusting the amount, if any, already withdrawn. No costs.
25.08.2021
dpq
Index : Yes / No
Internet : Yes / No
To
1.The Special Subordinate Judge No.I,
Motor Accidents Claims Tribunal,
Small Causes Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.3885 of 2019
S. VAIDYANATHAN, J.
dpq
C.M.A.No.3885 of 2019
25.08.2021
https://www.mhc.tn.gov.in/judis
