Madras High Court
Kathiravan vs Zaheer Ussain on 9 December, 2021
CMA.No.675 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CMA No.675 of 2020
Kathiravan ... Appellant
Vs
1.Zaheer Ussain
2.M/s. United India Insurance Company Ltd.,
Christo Building, Bank Road,
Ooty – 643 001,
Nilgiris District. ... Respondents
Prayer: This Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree made in
MCOP.No.806 of 2017, dated 26.09.2019, on the file of Motor Accident
Claims Tribunal, (Special District Judge), Dharmapuri.
For Appellant : Mr.S.Sathiaseelan
For Respondents : Ms.Harini
for Mr.M.B.Gopalan Associates
1/8
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CMA.No.675 of 2020
JUDGMENT
The injured claimant, who was favoured with the compensation of
Rs.5,71,200/- for the multiple injuries suffered by him in an accident that
occurred on 18.12.2016, is on appeal terming the said compensation as
inadequate.
2.According to the claimant, the accident occurred while he was
on the way to Sabarimala, when he got down from the bus for lunch the Car
bearing Registration No.TN11-Z-9085 belonging to the first respondent
driven by its driver in a rash and negligent manner knocked him down and
the petitioner sustained multiple injuries.
3.There was a fracture in the left tibia, left ankle apart from injury
in the spinal cord. He was admitted as inpatient for almost 14 days and two
surgeries were performed. Claiming that the injuries caused, affected his
earning power and the disability is permanent in nature, the claimant sought
for a sum of Rs.41,00,000/- as compensation.
4.The Insurance Company resisted the claim contending that the
driver of the offending vehicle was not negligent and it was the claimant who
was negligent. FIR was registered on the basis of the complaint lodged by
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CMA.No.675 of 2020
the friends of the claimant, who had travelled with him. The Insurance
Company also disputed the age, avocation and the income of the claimant.
The compensation claimed was termed as excessive. Before the Tribunal, the
claimant was examined as PW1 and Exhibits P1 to P24 were marked. The
disability certificate issued by the medical board was marked as Ex.X1. The
Tribunal on a consideration of the evidence on record concluded that the
accident was caused due to the negligence of the driver of the Car bearing
Registration No.TN11-Z-9085.
5.On the said finding, the Tribunal fastened the liability upon the
Insurance Company. On the quantum, the Tribunal took into account the
disability certificate issued by the medical board, which fixed the disability
at 20%.
6.Taking into account, the various documents filed by the
petitioner to prove his avocation as a driver as well as a construction
contractor, the Tribunal took his monthly income at Rs.8,000/-, applied
multiplier of 16 and arrived at the compensation for the disability, namely
20%, at Rs.3,07,200/-. The Tribunal awarded conventional damages under
various heads as follows:
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CMA.No.675 of 2020
Heads Amount
Rs.
Pain and suffering Rs.25,000/-
Extra nourishment expenses Rs.20,000/-
Attender charges Rs.10,000/-
Transport charges Rs.25,000/-
Loss of amenities Rs.30,000/-
Medical expenses Rs.1,54,000/-
7.Thus the Tribunal fixed the total award at Rs.5,71,200/-.
Terming the same as inadequate the claimant has come up with this appeal.
8.I heard Mr.Sathiaseelan, learned counsel appearing for the
claimant/appellant and Ms.Harini, learned counsel appearing for the second
respondent Insurance Company.
9.Mr.Sathiaseelan, learned counsel appearing for the claimant
would contend that the Tribunal was not right in fixing the monthly income
at Rs.8,000/-, which is too low. He would also contend that disability should
have been fixed at higher rate considering the avocation of the appellant. He
would further point out that the compensation awarded towards pain and
suffering is too low and no amount has been awarded towards future
medical expenses.
10.Contending contra, Ms.Harini, learned counsel appearing for
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CMA.No.675 of 2020
the Insurance Company would submit that the claimant has no consistent
case regarding his avocation. In the claim petition, it is stated that he is a
building contractor. Before the medical board, he has said that he is a
labourer. He has also produced documents to show that he had a driving
licence and he is owning a heavy vehicle. Therefore, according to the learned
counsel for the Insurance Company, the Tribunal was justified in fixing the
monthly income at Rs.8,000/-. She would also contend that the conventional
damages awarded are also reasonable.
11.I have considered the rival submissions.
12.Considering the documents produced and the nature of the
avocation of the claimant, I am of the opinion that the fixation of Rs.8,000/-
per month as his income is far too low. Admittedly, the claimant possesses a
licence for driving heavy vehicle. Ex.P12 certificate has been produced to
show that he has been engaging in other work namely, construction contract
also. Therefore, on a pragmatic assessment, I am of the opinion that the
monthly income could be taken as Rs.15,000/-. If the monthly income is
taken as Rs.15,000/-, the compensation for permanent disability would be
Rs.5,76,000/-. The Tribunal has awarded Rs.25,000/- for pain and suffering.
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CMA.No.675 of 2020
13.Considering the period of hospitalization namely, 14 days, the
compensation awarded appears to be low. The same is enhanced to
Rs.70,000/- i.e., Rs.5,000/- per day. The compensation awarded on the other
heads is confirmed. A sum of Rs.10,000/- is awarded towards future medical
expenses, considering the fact that there were some implants.
14.The total compensation is enhanced to Rs.9,00,000/- with
interest at 7.5%. The Insurance Company is directed to deposit the enhanced
compensation with 7.5% interest to the credit of the MCOP.No.806 of 2017
on the file of the Motor Accident Claims Tribunal, the Special District Judge,
Dharmapuri, within a period of six weeks from the date of receipt of a copy
of this order. On such deposit, the claimant/appellant is permitted to
withdraw the entire amount deposited. No costs.
09.12.2021
vs
Index: No
Speaking order
To
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CMA.No.675 of 2020
1.The Motor Accident Claims Tribunal,
Special District Judge, Dharmapuri.
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
R.SUBRAMANIAN, J.
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CMA.No.675 of 2020
vs
CMA No.675 of 2020
09.12.2021
https://www.mhc.tn.gov.in/judis
