Madras High Court
A.Selvaraj vs Charles Rico Lazaro on 14 December, 2021
C.M.A.No.1921 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1921 of 2014
A.Selvaraj .. Appellant
Vs.
1.Charles Rico Lazaro
2.IFFCO Tokio General Insurance
Company Limited
N.No.28, O.No.195, North Usman Road
T.Nagar, Chennai-17. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 31.01.2014
made in M.C.O.P.No.2416 of 2011 on the file of Motor Accident Claims
Tribunal, IV Small Causes Court, Chennai.
1/10
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C.M.A.No.1921 of 2014
For Appellant : Mr.K.Varadha Kamaraj
For R2 : Mrs.K.Saraswathi
for Mr.C.R.Krishnamurthy
JUDGMENT
The Civil Miscellaneous Appeal is filed challenging the portion of the
award fixing 5% contributory negligence on the part of the appellant and for
enhancement of compensation granted by the Tribunal in the award dated
31.01.2014 made in M.C.O.P.No.2416 of 2011 on the file of Motor Accident
Claims Tribunal, IV Small Causes Court, Chennai.
2.The appellant is claimant in M.C.O.P.No.2416 of 2011 on the file of
Motor Accident Claims Tribunal, IV Small Causes Court, Chennai. He filed
the said claim petition claiming a sum of Rs.6,00,000/- as compensation for
the injuries sustained by him in the accident that took place on 15.04.2011.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent riding by
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C.M.A.No.1921 of 2014
the rider of motorcycle belonging to the 1st respondent as well as negligence
of the appellant, fixed 95% negligence on the part of rider of the motorcycle
and 5% contributory negligence on the part of appellant, awarded a sum of
Rs.1,40,000/- as compensation to the appellant and directed the 2nd
respondent/Insurance Company being insurer of the said motorcycle to pay a
sum of Rs.1,33,000/- being 95% of the compensation to the appellant at the
first instance and recover the same from the 1st respondent, owner of the
motorcycle.
4.Challenging the portion of the award fixing 5% contributory
negligence on the part of the appellant and not being satisfied with the
amounts awarded by the Tribunal, the appellant has come out with the present
Civil Miscellaneous Appeal.
5.Though the learned counsel appearing for the appellant raised
grounds with regard to negligence, at the time of arguments, he restricted his
arguments only with regard to quantum of compensation awarded by the
Tribunal and contended that at the time of accident, the appellant was
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C.M.A.No.1921 of 2014
working as Mason and was earning a sum of Rs.300/- per day. In the
accident, the appellant suffered communited fracture proximal 1/3rd left tibia
and fibula. To prove the nature of injuries, the appellant examined the Doctor
as P.W.2 and marked disability certificate and X-ray as Exs.P6 and P7
respectively. The Tribunal has granted only a meagre sum of Rs.1,800/- per
percentage of disability. The appellant could not continue his job as Mason
due to the injuries and shortening of left leg. He finds it difficult to stand,
walk, bend and squat on the floor. The appellant took treatment as in-patient
in the hospital from 15.04.2011 to 16.05.2011 and underwent surgery. The
Tribunal ought to have adopted multiplier method for awarding compensation
towards loss of earning power. The Tribunal has not awarded any
compensation towards attendant charges, loss of amenities and future medical
expenses. The amounts awarded by the Tribunal under different heads are
meagre and prayed for enhancement of compensation.
6.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that the appellant has not proved
that he suffered functional disability or lost his earning capacity. In the
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C.M.A.No.1921 of 2014
absence of any evidence, the Tribunal rightly granted compensation by
adopting percentage method. The appellant has not filed any document to
prove his avocation and income. In the absence of documentary evidence, the
notional income fixed by the Tribunal is not meagre. The total compensation
awarded by the Tribunal under different heads are not meagre and prayed for
dismissal of the appeal.
7.The 1st respondent remained exparte before the Tribunal and hence,
notice to the 1st respondent is dispensed with.
8.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 2nd respondent/Insurance Company and
perused the entire materials on record.
9.It is the contention of the appellant that in the accident, he suffered
communited fracture proximal 1/3rd left tibia and fibula. To prove the nature
of injuries, the appellant examined the Doctor as P.W.2 and marked disability
certificate and X-ray as Exs.P6 and P7 respectively. P.W.2 Doctor examined
the appellant and certified that appellant suffered 35% disability and issued
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C.M.A.No.1921 of 2014
Ex.P6 disability certificate. The Tribunal considering the same, fixed 35%
disability and awarded a sum of Rs.63,000/- towards disability at the rate of
Rs.1,800/- per percentage. The appellant has not let in any evidence to show
that he suffered functional disability and lost his earning capacity due to the
injuries. Hence, the appellant is not entitled to compensation by adopting
multiplier method. But the amount granted by the Tribunal per percentage of
disability is meagre. The accident is of the year 2011 and hence, a sum of
Rs.3,000/- is awarded per percentage of disability. Thus, the compensation
awarded by the Tribunal towards disability is modified to Rs.1,05,000/- (35%
X Rs.3,000/-).
9(i) The appellant in the claim petition has contended that he was
working as Mason and was earning a sum of Rs.300/- per day. The appellant
failed to prove the said contention. In the absence of any evidence with
regard to avocation and income of the appellant, the Tribunal awarded a sum
of Rs.20,000/- towards loss of earning. The accident is of the year 2011 and
hence, a sum of Rs.8,000/- per month is fixed as notional income of the
appellant. Due to the injuries, the appellant would not have attended his work
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C.M.A.No.1921 of 2014
atleast for a period of five months. Thus, the compensation awarded by the
Tribunal towards loss of earning during treatment period is modified to
Rs.40,000/- (Rs.8,000/- X 5).
9(ii) The appellant has taken treatment as in-patient in Government
Kilpauk Medical College and Hospital, Chennai, from 15.04.2011 to
16.05.2011 and underwent surgery. The Tribunal has not granted any amount
towards attendant charges, loss of amenities and damage to clothes.
Considering the nature of injuries and period of treatment taken by the
appellant, Rs.16,000/-, Rs.15,000/- and Rs.1,000/- are granted towards
attendant charges, loss of amenities and damage to clothes respectively. A
sum of Rs.10,000/- awarded by the Tribunal towards extra nourishment is
meagre and hence, the same is hereby enhanced to Rs.15,000/-. The
appellant has not produced any document to show that he requires future
medical expenses and therefore, he is not entitled to any amount towards
future medical expenses. The amounts awarded by the Tribunal under all
other heads are just and reasonable and hence, the same are hereby
confirmed. Thus, the compensation awarded by the Tribunal is modified as
follows:
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C.M.A.No.1921 of 2014
S.No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court enhanced or
(Rs) granted or
reduced
1. Loss of earning 20,000 40,000 Enhanced
during
treatment
period
2. Transportation 7,000 7,000 Confirmed
3. Extra 10,000 15,000 Enhanced
nourishment
4. Medical 10,000 10,000 Confirmed
expenses
5. Pain and 30,000 30,000 Confirmed
suffering
6. Disability 63,000 1,05,000 Enhanced
7. Attendant - 16,000 Granted
Charges
8. Loss of - 15,000 Granted
amenities
9. Damage to - 1,000 Granted
clothes
Total 1,40,000 2,39,000
Enhanced by
Rs.94,050/-
95% of the 1,33,000 2,27,050 [Rs.2,27,050/-
award amount -
Rs.1,33,000/-]
10.In the result, this Civil Miscellaneous Appeal is partly allowed and
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C.M.A.No.1921 of 2014
the compensation awarded by the Tribunal at Rs.1,40,000/- is hereby
enhanced to Rs.2,39,000/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The 2nd
respondent/Insurance Company is directed to deposit a sum of Rs.2,27,050/-
being 95% of the award amount now determined by this Court, along with
interest and costs, less the amount already deposited, if any, within a period
of six weeks from the date of receipt of a copy of this judgment at the first
instance and recover the same from the 1st respondent, owner of the vehicle.
On such deposit, the appellant is permitted to withdraw the award amount
now determined by this Court along with interest and costs, less the amount if
any, already withdrawn. No costs.
14.12.2021
Index : Yes / No
Internet : Yes/ No
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V.M.VELUMANI,J.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1921 of 2014
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To
1.IV Judge
Motor Accident Claims Tribunal
Small Causes Court, Chennai.
2.The Section Officer
V.R.Section,
High Court,
Chennai.
C.M.A.No.1921 of 2014 .
14.12.2021
https://www.mhc.tn.gov.in/judis
