Madras High Court
A.Rajalakshmi vs K.Yuvarajan on 9 December, 2021
C.M.A. Nos.826 of 2014, 43 & 44 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.826 of 2014
and C.M.A.Nos.43 & 44 of 2015
A.Rajalakshmi .. Appellant in
C.M.A.No.826/2014
A.Prabagaran .. Appellant in
C.M.A.No.43/2015
P.Vidya .. Appellant in
C.M.A.No.44/2015
Vs.
1.K.Yuvarajan
2.The Divisional Manager,
The Oriental Insurance Co. Ltd.,
No.139, 2nd Floor,
S.V. Complex, Eswaran Koil Street,
Pondicherry. .. Respondents in
all C.M.As.
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the judgments and decrees dated
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
23.06.2010, made in M.C.O.P. Nos.1510, 1507 & 1508 of 2005, on the file of
the Additional Sub Court, (Motor Accident Claims Tribunal), Pondicherry.
For Appellant : Mr.D.Ravichander
For Respondents : No appearance (For R1)
Mr.N.Sampath (For R2)
COMMON JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”)
These appeals have been filed for enhancement of compensation
granted by separate awards dated 23.06.2010, made in M.C.O.P. Nos.1510,
1507 & 1508 of 2005 respectively, on the file of the Additional Sub Court,
(Motor Accident Claims Tribunal), Pondicherry.
2.The appellant-claimant in all the appeals filed M.C.O.P. No.1510,
1507 & 1508 of 2005 respectively, on the file of the Additional Sub Court,
(Motor Accident Claims Tribunal), Pondicherry, claiming a sum of
Rs.7,80,000/-, Rs.5,10,000/- and Rs.9,85,000/- respectively as compensation
for the injuries sustained by them in the accident that took place on
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
21.11.2004.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
driver of the Maxi Cab owned by the 1st respondent and directed the
respondents 1 and 2 as owner and insurer of the offending vehicle, to jointly
and severally pay a sum of Rs.1,80,000/-, Rs.98,000/- and Rs.2,19,000/-
respectively as compensation to the appellant in all the appeals.
4.Not being satisfied with the amounts awarded by the Tribunal in the
awards dated 23.06.2010, made in M.C.O.P. Nos.1510, 1507 & 1508 of
2005, the appellant in all the appeals have come out with the present appeals.
C.M.A.No.826 of 2014
5(i).The learned counsel appearing for the appellant contended that in
the accident, the appellant sustained grievous injuries, fracture of right clavicle
lateral end, fracture in both bone right leg proximal 1/3rd and fracture femoral
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
head. She has filed Exs.P11 and P26 – discharge summaries to prove the
treatment taken for the injuries sustained in the accident. Due to the injuries
sustained in the accident, the appellant's hip got dislocated and she is unable
to do her daily routine independently. The appellant requires further
treatment. The Tribunal failed to consider the judgment of the Hon'ble Apex
Court and this Court, while granting compensation, which must be adequate
and it should not be illusory. The total compensation awarded by the Tribunal
under different heads are meagre and prayed for enhancement of the
compensation.
C.M.A.No.43 of 2015
5(ii). The learned counsel appearing for the appellant contended that in
the accident, the appellant sustained Acromio Clavicular joint dislocation right
side, unreduced Acromia Claviclation dislocation right shoulder with
prominent outer end of clavicle protruching through skin, restriction of
movements of right shoulder and rotator cliff muscle wasting right shoulder.
He has filed Ex.P21-discharge summary to prove the treatment taken for the
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
injuries sustained in the accident. P.W.3 Doctor examined the appellant and
certified that the appellant suffered 28% disability. The Tribunal has awarded
only a meagre sum of Rs.28,000/- towards disability at the rate of Rs.1,000/-
per percentage, without considering the year of accident i.e., 2004. Due to the
injuries sustained in the accident, the appellant lost his future prospects. The
Tribunal ought to have considered the deposition of P.W.3 Doctor that the
appellant's movement of right shoulder is restricted and awarded more
compensation under different heads. In any event, the total compensation
awarded by the Tribunal under different heads are meagre and prayed for
enhancement of the compensation.
C.M.A.No.44 of 2015
5(iii).The learned counsel appearing for the appellant contended that in
the accident, the appellant sustained grievous injuries such as multiple injuries
in left eye brow, left upper eyelid, left cheek, upper and lower lips, chin and
fracture in right lower limb. He has filed Exs.P11 and P24 – discharge
summaries to prove the treatment taken for the injuries sustained in the
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
accident. P.W.3 Doctor examined the appellant and certified that she suffered
34% disability. P.W.3 Doctor also deposed that there is restriction of
movements of right knee and fractures are mal united. The appellant requires
further treatment. The Tribunal failed to award any amount towards future
medical expenses. The Tribunal ought to have awarded more amount towards
permanent disfigurement of face of the appellant. Due to the injuries sustained
in the accident, the appellant could not do her household work. The Tribunal
without considering the nature of injuries, disability suffered by the appellant
and evidence of P.W.3 Doctor, awarded meagre amount as compensation
under different heads and prayed for enhancement of the compensation.
6.Though notice has been served on the 1st respondent and his name is
printed in the cause list, there is no representation for him either in person or
through counsel.
7.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the Tribunal considering the nature of
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
injuries and period of treatment taken by the appellant as in-patient in all the
appeals, awarded compensation under different heads, which are not meagre.
The appellants have not made out any case for enhancement of the
compensation and prayed for dismissal of all the appeals.
8.Heard the learned counsel appearing for the appellant as well as the
2nd respondent-Insurance Company and perused the entire materials available
on record.
C.M.A.No.826 of 2014 -
9.From the materials on record, it is seen that it is the case of the
appellant that in the accident, she sustained grievous injuries and has taken
in-patient treatment at PIMS Hospital, Pondicherry and Apollo Hospital,
Chennai. She has filed Exs.P11 and P26 – discharge summaries to prove the
same. It is seen that the appellant has not produced any disability certificate or
examined Doctor to prove the nature of injuries and that due to injuries, she
cannot do any work as she was doing earlier. On the failure of the appellant to
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
prove the disability suffered and injuries sustained, the Tribunal has granted
only a sum of Rs.20,000/- towards pain and sufferings, Rs.10,000/- towards
extra nourishment and Rs.1,50,000/- together towards medical expenses and
transportation charges. The appellant has produced two discharge summaries
for having taken treatment at PIMS Hospital, Pondicherry from 22.11.2004 to
23.11.2004 and at Apollo Hospital, Chennai, from 23.11.2004 to 05.12.2004.
The Tribunal has not awarded any amount towards attendant charges. The
accident is of the year 2004. Considering the age of the appellant as 67 years,
nature of injuries and period of treatment taken, a sum of Rs.20,000/- is
granted towards attendant charges, a sum of Rs.20,000/- is granted towards
loss of income during treatment period and a sum of Rs.500/- towards loss of
clothes. The amounts awarded by the Tribunal under other heads are just and
reasonable and hence, the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court (Rs) enhanced or
granted
1. Pain and sufferings 20,000/- 20,000/- Confirmed
2. Extra nourishment 10,000/- 10,000/- Confirmed
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
3. Medical expenses & 1,50,000/- 1,50,000/- Confirmed
transportation
4. Loss of income - 20,000/- Granted
5. Loss of clothes - 500/- Granted
6. Attendant charges - 20,000/- Granted
Total 1,80,000/- 2,20,500/- Enhanced by
Rs.40,500/-
C.M.A.No.43 of 2015 -
10.From the materials on record, it is seen that it is the case of the
appellant that in the accident, he sustained grievous injuries such as severe
fractures in the right shoulder and in the right forehead and has taken
treatment as in-patient at PIMS Hospital, Pondicherry and Apollo Hospital,
Chennai. He has filed Exs.P12 and P21 – discharge summaries to prove the
same. The appellant examined P.W.3 Doctor who clinically examined and
certified that the appellant suffered 28% disability. P.W.3 Doctor further
deposed that the movements of right shoulder of the appellant is restricted.
The Tribunal has awarded a meagre sum of Rs.28,000/- towards disability, at
the rate of Rs.1,000/- per percentage. The accident is of the year 2004.
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
Considering the date of accident, a sum of Rs.1,500/- is granted per
percentage of disability to the appellant. Hence, the amount awarded by the
Tribunal towards disability is modified to Rs.42,000/- [Rs.1,500/- x 28%].
Considering the nature of injuries and evidence of P.W.3 Doctor, a sum of
Rs.10,000/- is granted to the appellant towards attendant charges.
11.The appellant claimed that at the time of accident, he was aged 40
years and was doing Jewellery business. The Tribunal has awarded only a
meagre sum of Rs.15,000/- towards loss of income. Considering the nature of
work done by the appellant, the amount of Rs.15,000/- granted by the
Tribunal towards loss of income is meagre and the same is enhanced to
Rs.25,000/-. The Tribunal failed to award any amount towards damage to
clothes and attendant charges. Considering the nature of injuries and period of
treatment taken, the appellant is entitled to a sum of Rs.500/- towards loss of
clothes and Rs.10,000/- towards attendant charges. The amounts awarded by
the Tribunal under other heads are just and reasonable and hence, the same
are hereby confirmed. Thus, the compensation awarded by the Tribunal is
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
modified as follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court (Rs) enhanced or
granted
1. Pain and sufferings 20,000/- 20,000/- Confirmed
2. Disability 28,000/- 42,000/- Enhanced
3. Medical expenses 20,000/- 20,000/- Confirmed
4. Transportation 5,000- 5,000/- Confirmed
5. Extra nourishment 10,000/- 10,000/- Confirmed
6. Attendant charges - 10,000/- Granted
7. Loss of clothes - 500/- Granted
8. Loss of income 15,000/- 25,000/- Enhanced
Total 98,000/- 1,32,500/- Enhanced by
Rs.34,500/-
C.M.A.No.44 of 2015 -
12.From the materials on record, it is seen that it is the case of the
appellant that in the accident, she sustained grievous injuries and multiple
fractures all over the body and has taken treatment as in-patient at PIMS
Hospital, Pondicherry and Apollo Hospital, Chennai. She has filed Exs.P11
and P24 – discharge summaries to prove the same. The appellant examined
P.W.4 – Plastic Surgeon Doctor and P.W.3 Orthopaedics Doctor, who
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
clinically examined and certified that the appellant suffered 34% disability.
P.W.3 Doctor further deposed that the movements of right knee of the
appellant is restricted and the fractures are malunited. The Tribunal awarded a
meagre sum of Rs.34,000/- towards disability, at the rate of Rs.1,000/- per
percentage. The accident is of the year 2004. Considering the date of accident,
a sum of Rs.1,500/- is granted per percentage of disability to the appellant.
Hence, the amount awarded by the Tribunal towards disability is modified to
Rs.51,000/- [Rs.1,500/- x 34%]. Considering the nature of injuries and
evidence of P.W.3 Doctor, a sum of Rs.10,000/- is granted to the appellant
towards attendant charges. The Tribunal failed to award any amount towards
damage to clothes. The appellant is entitled to a sum of Rs.500/- towards loss
of clothes.
13.The appellant claimed that at the time of accident, she was aged 28
years and was a House Wife. Due to the injuries sustained in the accident, the
appellant is entitled to a sum of Rs.10,500/- [Rs.3,500/- x 3 months] towards
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
loss of income at the rate of Rs.3,500/- per month for a period of three
months. The amounts awarded by the Tribunal under other heads are just and
reasonable and hence, the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court (Rs) enhanced or
granted
1. Pain and sufferings 20,000/- 20,000/- Confirmed
2. Disability 34,000/- 51,000/- Enhanced
3. Medical expenses 1,20,000/- 1,20,000/- Confirmed
4. Transportation 10,000/- 10,000/- Confirmed
5. Extra nourishment 10,000/- 10,000/- Confirmed
6. Attendant charges - 10,000/- Granted
7. Loss of clothes - 500/- Granted
8. Loss of income - 10,500/- Granted
9. Disfigurement of face 25,000/- 25,000/- Confirmed
Total 2,19,000/- 2,57,000/- Enhanced by
Rs.38,000/-
14.In the result, all the appeals are partly allowed and the amount
awarded by the Tribunal at Rs.1,80,000/-, Rs.98,000/- and Rs.2,19,000/- are
enhanced to Rs.2,20,500/-, Rs.1,32,500/- and Rs.2,57,000/- together with
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit. The respondents are jointly and severally directed to deposit the
award amount, now determined by this Court, along with interest and costs,
within a period of six weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P. Nos.1510, 1507 and 1508 of 2005
respectively. On such deposit, the appellant in all the appeals are permitted to
withdraw their respective award amounts, now determined by this Court,
along with interest and costs, after adjusting the amount, if any already
withdrawn, by filing necessary applications before the Tribunal. No costs.
09.12.2021
gsa
To
1.The Additional Subordinate Judge,
(Motor Accident Claims Tribunal), Pondicherry.
2.The Section Officer,
V.R Section, High Court, Madras.
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C.M.A. Nos.826 of 2014, 43 & 44 of 2015
V.M.VELUMANI, J.,
gsa
C.M.A.Nos.826 of 2014
and 43 & 44 of 2015
09.12.2021
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