Madras High Court
Kutti Alias Subramani vs Thiru.P.Rajendran on 1 February, 2021
C.M.A.No.956 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 01.02.2021
Coram::
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A.No.956 of 2017
Kutti alias Subramani ... Appellant
/versus/
1. Thiru.P.Rajendran,
2. Cholamandalam MS General Insurance Company Limited,
12/1, 1st Floor, Sai Towers,
Pidamaneri Main Road,
Dharmapuri Town and District. ... Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle
Act, 1988, against the order in M.A.C.T.O.P.No.1652 of 2014 dated 18.04.2016 on
the file of the Learned Motor Accident Claims Tribunal, (Special Sub Court),
Dharmapuri.
For Appellant : Mr.B.Gopala Krishnan
For R2 : Mr.E.Rajadurai
for M.B.Gopalan Associates
For R1 : Not ready notice
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C.M.A.No.956 of 2017
JUDGMENT
Heard the Learned Counsel for the appellant and the Learned Counsel
for the respondent.
2. This Appeal is filed by the Motor accident victim for enhancement of
compensation being not satisfied with the quantum of compensation awarded by the
Tribunal.
3. The brief facts of the case is that on 19.11.2012 at about 01.30 p.m,
when the claimant was riding his Hero Honda Splendor motorcycle bearing
registration No.TN-29-H-5689 along the Dharmapuri to Solakkottai Road near J.J.
Company junction, the JCB poclain bearing registration No.TN-29-AH-0199 moving
with a bucket, rash and negligently hit the petitioner motorcycle. In the said accident,
the claimant sustained multiple grievous injury all over the body and he was admitted
in the Government Hospital, Dharmapurai. After first aid, he was shifted to Kovai
Ganga Medical Hospital, for better treatment. From 19.11.2012 to 24.11.2012, he
was treated as inpatient in the said hospital. In the accident, the claimant sustained
injury on his forehead and right AC joint. Claiming to be a granite work contractor,
earning Rs.50,000/- per month, claim petition was filed for Rs.15,00,000/- against
the owner of JCB Poclain and the Insurance Company.
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C.M.A.No.956 of 2017
4. The Insurance Company filed counter, whereas, the owner of the
vehicle remind absent. In the counter filed by the Insurance Company, the liability
of the Insurance Company was denied on the ground that the said JCB was not duly
insured under them and the driver of the JCB had no valid driving licence. The
accident occurred only due to rash and negligently driving of the rider of the
motorcycle i.e., claimant and therefore, the Insurance Company is not liable to pay
compensation to the petitioner. The accident occurred due to head on collusion of
two vehicles hence, the owner and the insurer of the two wheeler are also equally
liable. The claimant has to prove that, whether he had valid driving license and valid
Insurance Coverage to the motorcycle which he was riding.
5. Before the Tribunal, the claimant and one Dr.Ramakrishnan were
examined as P.W.1 and P.W.2 respectively. 8 Exhibits were marked on behalf of the
plaintiff. In support of the respondent no witness examined.
6. The Tribunal, after considering the disability certificate given by the
Doctor P.W.2 assessing the disability incurred by the claimant in the accident as 30%
and taking into consideration, the notional income of the claimant as Rs.5,000/- per
month, awarded a total compensation of Rs.1,55,000/-.
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C.M.A.No.956 of 2017
7. In the appeal, the Learned Counsel for the appellant submitted that,
the claimant had suffered severe head injury, causing functional disability and
therefore, the Tribunal ought to have applied multiplier for assessing loss of income.
The notional income fixed by the Tribunal is also very less and taking into
consideration the avocation of the claimant, being a granite contractor, earning about
Rs.50,000/- per month. For Loss of income during the treatment period should have
been awarded adequately.
8. It is also pointed out by the Learned Counsel for the appellant that,
when medical bills for Rs.53,179/- was produced and marked as Ex.P.3 series, the
Tribunal has erroneously awarded only Rs.10,000/- towards the medical expenses.
9. The Learned Counsel appearing for the Insurance Company would
submit that the discharge summary marked as Ex.P.4 indicates Head Injury-Left
Frontal SDH & BI-Parietal Contusion. Conservative Management for head injury
was provided and the injured person had regained his normal life after treatment.
Ex.P.4 discharge summary issued by Ganga Medical Centre and Hospital, would
clearly show that the patient is comfortable and neurologically stable. Therefore,
even though P.W.2 the Doctor, who has not treated the claimant given disability
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C.M.A.No.956 of 2017
certificate on clinical examination, the Tribunal has accepted his opinion and has
awarded Rs.90,000/- for the disability.
10. The contention of the Learned Counsel for the appellant that,
multiplier should be applied for the disability is unsustainable. Since, there is no
evidence to show that the injured had suffered disability impairing his earning
capacity. As far as the medical bills marked as Ex.P.3, the Learned Counsel for the
Insurance Company would state that, if the Court is the convinced about the
genuineness of the bills produced, no objection in awarding the actual expense
incurred towards treatment.
11. On considering the rival submissions, this Court finds that the First
Information report marked as Ex.P.1 registered by Dharmapurai Police station is
against the driver of JCB. The negligence is attributed against the JCB driver and
therefore, the Insurance Company which has insured the vehicle under Ex.P.5 policy
is liable to indemnify the owner and compensate the claimant. The wound certificate
is marked as Ex.P.2, wherein, following injured were noted by the Doctor who
admitted the claimant in his hospital on 19.11.2012.
(i). Tenderness in forehead
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C.M.A.No.956 of 2017
(ii). Tenderness present right AC joint. Range of movements right
shoulder terminally painful.
12. The x-ray was taken on right shoulder and C.T scan was taken. x-ray
indicates no evidence of fracture. The C.T scan disclosed the following procedures,
Cortical hemorrhagic contusion in the right anterior temporal lobe and bilateral
frontal lobes. Thin extra cerebral bleed in the left frontal region, minimal
subarachnoid hemorrhage in posterior interhemispheric fissure and bilateral
parietal regions. Fracture in the occipital bone.
13. As pointed out earlier, the head injury was conservatively treated
and the patient had recovered from the injury, except complaining pain on the right
shoulder. The doctor had advised him to wear arm sling clavicle strapping. Under
Ex.P.3 medical bills as well as the automobile bills have been produced by the
claimant. On cumulative assessment and appreciation of evidence, this Court is of
the view that the award passed by the Tribunal has to be enhanced as under:-
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C.M.A.No.956 of 2017
Sl. Compensation under various heads Award passed by this
Nos Court
1. Disability 30% x 3000 Rs.90,000/-
2. Pain and Sufferings Rs.15,000/-
3. Loss of income during the treatment period Rs.24,000/-
Rs.8,000 x 3
4. Medical expenses, as per bill Rs.36,500/-
5. Damage to vehicle Rs.6,000/-
6. Transportation charges Rs.5,000/-
7. Nutritious Food Rs.5,000/-
Total Rs.1,81,500/-
14. The 2nd respondent/Insurance Company is directed to pay a sum of
Rs.1,81,500/- with 7.5% interest from the date of filing the petition (31.01.2013) till
the date of realisation. The 2nd respondent/Insurance Company shall deposit the
award amount within a period of 8 weeks, from the date of receipt of copy of this
judgment. On such deposit, the claimant is entitled to withdraw the same on filing
proper application.
15. Accordingly, the Civil Miscellaneous Appeal is Allowed. No costs.
01.02.2021
Index :Yes/No
Speaking order/Non-speaking order.
bsm
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C.M.A.No.956 of 2017
Dr.G.Jayachandran,J.
bsm
To:-
1.The Motor Accident Claims Tribunal, (Special Sub Court), Dharmapuri.
2.The Section Officer, V.R.Section, High Court, Madras.
C.M.A.No.956 of 2017
01.02.2021
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