Madras High Court
B.Balakrishnan vs A.P.Bharat Kumar on 9 December, 2021
C.M.A.(MD)No.649 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD)No.649 of 2021
B.Balakrishnan ...Appellant/Petitioner
Vs.
1.A.P.Bharat Kumar
2.IFFCO Tokio General Insurance Company Limited,
through its Divisional Mananger,
83, Preetham Plaza,
Chandragandhi Nagar, Ponmeni,
Madurai. ...Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, to modify the award amount passed in M.C.O.P.No.161 of
2014, dated 15.11.2019 on the file of Sub Court/Motor Accidents Claims
Tribunal, Virudhunagar and enhance the compensation amount to the tune of
Rs.19,93,998/- (Rupees Nineteen lakhs Ninety Three thousand Nine hundred
and ninety eight only) by ordering the claimant as permanent disability
person having 100% disability and treating his monthly pay of Rs.20,000/-
etc., towards the insurance claim against accident met by the petitioner on
07.09.2021.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.649 of 2021
For Appellant :Mr.K.K.Samy
For R1 :No Appearance
For R2 :Mr.V.Sakthivel
JUDGMENT
The appellant is the claimant in M.C.O.P.No.161 of 2014 on the file of
the Motor Accidents Claims Tribunal/Subordiante Judge, Virudhunagar. He
filed the claim petition under Sections 140 and 166 of the Motor Vehicles Act
and Rule 3(1) of the M.V.Act, seeking compensation of Rs.11,00,000/- for
the injuries sustained by him in a road accident on 07.09.2014.
2. The case of the claimant in nutshell is as follows:
On 07.09.2014 at about 3.50 p.m. the petitioner was riding the two
wheeler, bearing Registration No.TN-58-B-5916, from North to South from
Kunnoor to Rajapalayam on Srivilliputhur – Madurai main road in a normal
speed observing the traffic rules. When, he was nearing Jeyam Hotel, which
is situated opposite to VPPM College, the car of the first respondent bearing
Registration No.TN-37-BM-7700 was coming in the opposite direction and
the said car was driven by its driver in a rash and negligent manner without
observing the traffic rules had dashed against the two wheeler. Due to the
impact, the petitioner has sustained fractures on his right hand, right leg and
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C.M.A.(MD)No.649 of 2021
right hip and cut injury on right foot and injuries all over his body.
Immediately he was taken to Government Hospital, Srivilliputhur. Since the
injuries are grievous in nature, he was referred to Government Rajaj Hospital,
Madurai. But he was admitted in Sakthibala Hospital, Rajapalayam. He
underwent operations on right hand, right hip, right leg and right foot in that
hospital and inserted steel plates in the right hand, right leg and right hip, still
he is taking treatment in the hospital.
3.The claimant has filed the claim petition in M.C.O.P.No.161 of 2014
on the file of the Motor Accidents Claims Tribunal/Subordinate Judge,
Virudhunagar, seeking compensation of Rs.11,00,000/-.
4.Before the Tribunal, on the side of the claimant one witness was
examined as P.W.1 and fifteen documents were marked as Exs.P.1 to P.15.
On the side of the respondents herein, one witness was examined as R.W.1
and no document was marked and one Court document was marked as
Ex.C1.
5.The Tribunal, after considering the pleadings, oral and documentary
evidences and the arguments of the counsel for the claimant and the
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C.M.A.(MD)No.649 of 2021
respondents and also on appreciating the evidences on record, held that the
accident occurred only, due to the rash and negligent driving of the driver of
the Car and directed the second respondent to pay a sum of Rs.5,40,163/- as
compensation. Aggrieved over the orders passed by the Tribunal, the
claimant has filed the present appeal under Section 173 of the Motor Vehicles
Act, 1988.
6.The learned counsel for the appellant contended that the claimant
underwent operations on right hand, right hip, right leg and right foot and
steel plates were also inserted. Still he is in treatment in the hospital and his
two wheeler also purely damaged at that time of accident. The claimant was
aged about 31 years and was working as a driver and earning Rs.28,500/- as
salary per month. Due to grievous injuries all over the body, he cannot stand,
move and walk so, he could not attend his work and lost his job. But the
Tribunal has fixed 70% of disability and awarded a sum of Rs.2,10,000/-
towards "permanent disability" and no amounts were awarded towards "loss
of income''. He therefore prayed for enhancement of compensation.
7.Per contra, The learned counsel appearing for the second
respondent/IFFCO Tokio Insurance Company Limited contended that the
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C.M.A.(MD)No.649 of 2021
appellant renewal the heavy vehicle license after the accident i.e. in the year
2019. Since he can drive all the vehicle and he is attending his work, the
award passed by the Tribunal is just and reasonable and therefore, the same
need not be disturbed at this stage.
8.Heard Mr.K.K.Samy, learned counsel appearing for the
appellant/claimant and Mr.D.Sivaraman, learned counsel appearing for the
second respondent and perused the material documents available on record.
No appearance on behalf of the first respondent.
9.Today the appellant is present before this Court. This Court is of the
view that the claimant cannot walk and move properly without attendant.
Further, it is submitted that a steel plate was fixed. Hence, 100% functional
disability is now fixed as 100% as argued by the appellant. But the Tribunal
awarded Rs.20,000/- towards pain and sufferings. Since the functional
disability is 100%, multiplier method has to be adopted. A perusal of the
records shows that the claimant was working as a driver, who was earning
Rs.28,500/-as salary per month. Eventhough salary certificate marked as
Ex.P12, the employer of the petitioner has not been examined and the income
tax particulars of the petitioner has not been produced. Since the claimant
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C.M.A.(MD)No.649 of 2021
was working as a heavy vehicle driver in a private concern, this Court fixed a
sum of Rs.15,000/- as his notional monthly income. Even in case of injuries,
when multiplier method is adopted, 1/3rd has to be deducted from the notional
income. The age of the appellant is 31 years and the correct multiplier
applicable is '17'. By deducting 1/3rd and applying multiplier '17', the loss of
income arrived at Rs.2,04,000/- (Rs.10,000/- x 12 x 17) . It is seen from the
records that since the claimant had sustained multiple injuries all over the
body, the Tribunal has awarded only Rs.20,000/- towards pain and sufferings
and the same is increased to Rs.50,000/-. This Court also awarded Rs.
10,000/- for attendant charges. The award passed by this Court under various
heads is extracted hereunder:
S.No. Head Amount granted by
this Court
1. Loss of income Rs.2,04,000/-
2. Medical bills Rs.2,45,969/-
4. Pain and sufferings Rs. 50,000/-
5. Extra nourishment Rs. 15,000/-
6. Transportation charges Rs. 21,194/-
7. Damage to clothing Rs. 1,000/-
9. Attendant Charge Rs. 10,000/-
Total Rs.5,47,163/-
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C.M.A.(MD)No.649 of 2021
10.In the result,
(i) The Civil Miscellaneous Appeal is partly allowed. No costs.
(ii) The quantum of compensation awarded by the Tribunal is enhanced
from Rs.5,40,163/- to Rs.5,47,163/- which would carry interest at the rate of
7.5% per annum.
(iii) The second respondent/IFFCO Tokio General Insurance Company
Limited, is directed to deposit the enhanced compensation amount i.e.,
Rs.5,47,163/-, less the amount already deposited, if any, together with
interest at the rate of 7.5% per annum from the date of claim petition till the
date of deposit, to the credit of M.C.O.P.No.161 of 2014, dated 15.11.2019
on the file of Motor Accidents Claims Tribunal/Sub Court, Virudhunagar,
within a period of six weeks from the date of receipt of a copy of this order.
(iv) On such deposit being made, the appellant / claimant is entitled to
to withdraw the same by filing necessary application before the Tribunal.
09.12.2021
Index :Yes/No
Internet:Yes/No
vsd
Note:In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
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C.M.A.(MD)No.649 of 2021
S.ANANTHI, J.
vsd
To
1.The Motor Accidents Claims Tribunal/Subordiante Judge,
Virudhunagar.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
C.M.A.(MD)No.649 of 2021
09.12.2021
https://www.mhc.tn.gov.in/judis
