Madras High Court

K.Munivel @ Velu vs M/S.Associate Transport on 2 February, 2021

                                                                            C.M.A.No.623 of 2013

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 02.02.2021

                                                         CORAM:

                                     THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR

                                                   C.M.A.No.623 of 2013

                     K.Munivel @ Velu                                       ... Appellant

                                                       ..vs..
                     1.M/s.Associate Transport,
                       No.269, Waltax Road, Chennai – 600 003.

                     2.The New India Assurance Company Ltd.,
                       No.46, Moore Street, Chennai – 1.

                     [The 1st respondent exparte in lower court]

                                                                            ... Respondents

                     PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to
                     allow this appeal and to allow the Claim in M.C.O.P.No.2699 of 2006 dated
                     19.03.2010 on the file of the Motor Accident Claims Tribunal, (V Court of
                     Small Causes), Chennai, as prayed for with interest and cost.


                                   For Appellant        : Mr.Chidambaram
                                                          for Mr.V.Mohan Choudary

                                   For Respondents      : Ms.Salomi
                                                          for Mr.C.Ramesh Babu for R2
                                                          R1- Notice unserved



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                                                                            C.M.A.No.623 of 2013

                                                     JUDGMENT

The appellant has driven the TVS-50 Motorcycle bearing Reg.No.TN-

04-S-7292 from West to East direction at Manali Express Road on 03.05.2006

at about 13.30 hours, a lorry bearing Reg.No.MDE-9933 came on the

opposite direction in a rash and negligent manner and hit against the

petitioner's vehicle, due to which the petitioner had sustained grievous

injuries. In the said accident, the petitioner had sustained 25% disability

and he had claimed Rs.3,50,000/- for the injuries sustained by him in the

said road accident.

2. Before the Tribunal, the petitioner and one Dr.K.J.Mathiazhagan

were examined on the side of the petitioner and Ex.P1 to Ex.P9 were

marked. On the side of the respondents, no evidence or documents were

marked. Based on which, the Tribunal without appreciating the oral and

documentary evidence produced by the petitioner/ appellant has awarded a

meager amount of Rs.85,000/-. As against the said award the petitioner has

filed the present appeal.

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3. The learned counsel for the appellant would submit that the

Tribunal has not considered the evidence of PW2 – Dr.K.J.Mathiazhagan,

who deposed before the Tribunal that the appellant had sustained 25%

permanent disability due to the accident. He would further submit that

due to the accident the appellant has sustained head grievous injuries; skull

fracture; Acute SDH in Left fronto; Moderate contusion and Multiple

contusion and he was treated as in-patient for 16 days in hospital.

Therefore, the percentage of disability assessed by the Doctor at 25% is

perfectly right. The Tribunal without any basis had reduced the permanent

disability to 20%. Therefore, the percentage of disability has to be fixed as

assessed by the Dr.K.J.Mathiazhagan, PW2. He would also submit that

under other heads also, the Tribunal has awarded meager amounts and no

amount was awarded under the head of loss of amenities, hence, he seeks

for enhancement of the compensation amount awarded by the Tribunal.

4. The learned counsel appearing for the respondent/ Insurance

Company would submit that the Tribunal has rightly come to a conclusion

and awarded a sum of Rs.80,000/- for permanent disability. Based on the

evidence of Dr.K.J.Mathiazhagan, PW2, the Tribunal has fixed the

permanent disability as 20%. As far as the other heads are concerned, the

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Tribunal has rightly fixed the compensation. Therefore, the appeal is liable

to be dismissed.

5. Considered the rival submissions of the parties and perused the

materials on record.

6. The Ex.P8 disability certificate was issued by Dr.K.J.Mathiazhagan,

who was examined as PW2. PW2, the Doctor who has given treatment to

the appellant in his evidence had stated that the petitioner had suffered

partial permanent disability and he assessed 25% as disability caused due to

the accident. But, the Tribunal has fixed only 20% as permanent disability.

The said assessment of the Tribunal is without any basis, therefore, this

court accepts the said assessment of PW2 and fix the percentage of

permanent disability as 25% sustained by the appellant in the said accident.

7. As far as the loss of earning is concerned, the Tribunal has

awarded a sum of Rs.18,000/-. The appellant was admitted in the Hospital

as in-patient from 03.05.2006 to 18.05.2006. At the time of the accident,

the petitioner was a Cleaner – cum – Coolie and he was earning Rs.200/- per

day. In support of the said claim, the appellant has not produced any

documentary evidence viz., income proof before the Tribunal. Therefore,

the Tribunal has rightly come to a conclusion and fixed a sum of Rs.3,000/-

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per month as his income and for such an earning capacity of the appellant,

the Tribunal has fixed loss of earning for 6 months and awarded a sum of

Rs.18,000/- (3000x6) under this head. The said amount awarded by the

Tribunal is reasonable and there is no need for interference with the award

under that head.

8. Under the head of medical expenses, the petitioner has claimed a

sum of Rs.10,000/-. But, no medical bills or prescription filed to that

extent. The Tribunal has admitted that the appellant had sustained injury

during the said accident, but due to the reason that no medical bills was

produced, the Tribunal has rejected the claim under the head of medical

expenses. This court is of the view that the same requires modification and

the appellant is entitled to Rs.10,000/- as medical expenses. The Tribunal

has not awarded any amount towards loss of amenities and attendant

charges. Considering the fact that the appellant had suffered 25% disability,

this court awards an amount of Rs.10,000/- towards loss of amenities. The

appellant was admitted in the Hospital as in-patient from 03.05.2006 to

18.05.2006, considering the period of hospitalization, this court awards an

amount of Rs.5,000/- towards attendant charges. While considering the

other heads, the Tribunal has not awarded adequate amounts to the

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appellant. Therefore, this court has enhanced the compensation amount

under the heads as follows:-

                                             Heads           Amount           Enhanced
                                                          awarded by the    compensation
                                                             Tribunal
                                   Permanent disability     Rs. 40,000/-      Rs. 50,000/-
                                                             (2000 x 20%)     (2000 x 25%)
                                   Loss of earning          Rs. 18,000/-      Rs. 18,000/-
                                   Transportation           Rs.   3,000/-     Rs.   3,000/-
                                   Extra Nourishment        Rs.   4,000/-     Rs.   5,000/-
                                   Medical Expenses               -           Rs. 10,000/-
                                   Pain and sufferings      Rs. 20,000/-      Rs. 20,000/-
                                   Loss of amenities              -           Rs. 10,000/-
                                   Attendant Charges              -           Rs.   5,000/-
                                   Total                    Rs. 85,000/-     Rs.1,21,000/-

9. Thus, the Civil Miscellaneous Appeal is allowed in part

enhancing the compensation amount from Rs.85,000/- to Rs.1,21,000/-

(Rupees One lakh twenty one thousand only) with interest @ 7.5% per

annum from the date of claim petition till the date of payment. The second

respondent/ Insurance Company is directed to deposit the award amount as

determined above, less the amount if any already deposited, within a

period of eight weeks from the date of receipt of a copy of this judgment.

On such deposit being made, the appellant/ claimant is permitted to

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withdraw the award amount, less the amount(s) if any already withdrawn by

filing necessary application before the Tribunal. The appellant/ claimant is