Madras High Court
Gunasekaran vs The Managing Director on 3 February, 2021
C.M.A.No.3771 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3771 of 2019
Gunasekaran .. Appellant
Vs.
The Managing Director,
Tamil Nadu State Transport Corporation Limited,
No.12, Ramakrishna Road,
Salem – 636 007. .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
17.09.2014 made in M.C.O.P.No.316 of 2013 on the file of the Motor
Accident Claims Tribunal, Chief Judicial Magistrate's Court, Namakkal.
For Appellant : Mr.R.Nalliyappan
For Respondent : Mr.D.Venkatachalam
JUDGMENT
The matter is heard through “Video Conferencing”.
2.This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the award dated 17.09.2014 made in
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3771 of 2019
M.C.O.P.No.316 of 2013 on the file of the Motor Accident Claims Tribunal,
Chief Judicial Magistrate's Court, Namakkal.
3.The appellant is the claimant in M.C.O.P.No.316 of 2013 on the file
of the Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court,
Namakkal. He filed the above said claim petition, claiming a sum of
Rs.5,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 08.07.2012.
4.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the bus belonging to the respondent and directed the respondent-
Transport Corporation to pay a sum of Rs.1,16,966/- as compensation to the
appellant.
5.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3771 of 2019
6.The learned counsel appearing for the appellant contended that in the
accident the appellant suffered compound fractures of left leg Tibia and
Fibula and other grievous injuries all over the body. P.W.2/Doctor examined
the appellant and certified that appellant suffered 40% disability and issued
Ex.P8/disability certificate to that effect. The Tribunal without giving any
valid reason, reduced the percentage of disability to 20% and awarded
compensation only for 20% of disability at the rate of Rs.2,000/- per
percentage of disability. The Tribunal ought to have awarded compensation
for 40% disability. The appellant was working as a Tailor and was earning a
sum of Rs.12,000/- per month. But the Tribunal fixed a meagre sum of
Rs.5,000/- per month as notional income of the appellant and awarded
compensation towards loss of income only for three months. Due to the
injuries sustained by the appellant in the accident, he could not continue his
avocation as he was doing earlier. Hence, the Tribunal ought to have adopted
multiplier method and awarded compensation for loss of earning capacity.
The appellant has taken treatment as inpatient for 15 days from 08.07.2012 to
22.07.2012. The Tribunal has not awarded any amount towards attendant
charges, extra nourishment, future loss of income, loss of amenities,
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3771 of 2019
happiness frustration and future medical expenses. The amounts awarded by
the Tribunal towards pain and sufferings and transportation are meagre and
prayed for enhancement of compensation.
7.Per contra, the learned counsel appearing for the respondent-
Transport Corporation contended that the Tribunal reduced the percentage of
disability from 40% to 20% on the ground that assessment of disability by
P.W.2/Doctor appears to be on the higher side. Hence, the appellant is not
entitled to compensation for 40% disability. The appellant has not produced
any material evidence to prove his avocation and income. In the absence of
any material evidence with regard to avocation and income, the Tribunal
fixed a sum of Rs.5,000/- per month as notional income of the appellant and
awarded compensation towards loss of income for three months, which is not
meagre. The appellant has not suffered any functional disability and hence, he
is not entitled to any compensation towards loss of earning capacity. The
amounts awarded by the Tribunal under different heads are not meagre. The
appellant has not made out any case for enhancement of compensation and
prayed for dismissal of the appeal.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3771 of 2019
8.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondent and perused the entire materials
on record.
9.From the materials available on record, it is seen that it is the case of
the appellant that in the accident he suffered compound fractures of left leg
Tibia and Fibula and other grievous injuries all over the body. P.W.2/Doctor
examined the appellant and certified that appellant suffered 40% disability
and issued Ex.P8/disability certificate to that effect. The Tribunal reduced the
percentage of disability from 40% to 20% on the ground that assessment of
disability by P.W.2/Doctor is on the higher side. The reason given by the
Tribunal for reducing the percentage of disability from 40% to 20% is not
correct. The respondent has not let in any evidence to disprove the evidence
of P.W.2/Doctor and Ex.P8/disability certificate. Therefore, the appellant is
entitled to compensation for 40% of disability. The accident occurred in the
year 2012 and a sum of Rs.2,000/- per percentage of disability awarded by the
Tribunal is meagre. The appellant is entitled to a sum of Rs.3,000/- per
percentage of disability. Thus, the compensation awarded by the Tribunal
towards disability is enhanced to Rs.1,20,000/- (Rs.3,000/- X 40% of
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3771 of 2019
disability). The appellant has not proved that he suffered functional disability
and lost his earning capacity. Hence, he is not entitled to compensation
towards loss of earning capacity by adopting multiplier method.
10.It is the contention of the appellant that he was a Tailor and was
earning a sum of Rs.12,000/- per month. He failed to prove the said
contention. In the absence of any material evidence with regard to avocation
and income, the Tribunal fixed a sum of Rs.5,000/- per month as notional
income of the appellant and awarded a sum of Rs.15,000/- (Rs.5,000/- X 3
months) as compensation towards loss of income for three months and the
same is not meagre. The appellant has taken treatment as inpatient for 15 days
from 08.07.2012 to 22.07.2012. But the Tribunal has not awarded any amount
towards attendant charges and extra nourishment. Considering the nature of
injuries and period of treatment taken by the appellant, a sum of Rs.7,500/-
each is awarded to the appellant towards attendant charges and extra
nourishment respectively. The amount awarded by the Tribunal towards pain
and sufferings is meagre and the same is enhanced to Rs.10,000/-. The
appellant has not produced any medical records to show that he requires
further medical treatment. Hence, he is not entitled to any amount towards
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3771 of 2019
future medical expenses. The appellant has not proved that due to the
disability, he suffered discomfort or disfigurement in leg. Hence, he is not
entitled to any amount towards loss of amenities. The amounts awarded by
the Tribunal towards loss of income, transportation and medical expenses are
just and reasonable and hence, the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability 40,000/- 1,20,000/- Enhanced
2. Pain and sufferings 5,000/- 10,000/- Enhanced
3. Loss of income 15,000/- 15,000/- Confirmed
4. Extra nourishment - 7,500/- Granted
5. Attendant charges - 7,500/- Granted
6. Medical expenses 51,966/- 51,966/- Confirmed
7. Transportation 5,000/- 5,000/- Confirmed
Total Rs.1,16,966/- Rs.2,16,966/- Enhanced by
Rs.1,00,000/-
11.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.1,16,966/- is hereby
enhanced to Rs.2,16,966/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. The respondent-
Transport Corporation is directed to deposit the award amount now
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3771 of 2019
determined by this Court along with interest and costs, less the amount
already deposited, if any, within a period of twelve weeks from the date of
receipt of a copy of this judgment, to the credit of M.C.O.P.No.316 of 2013
on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate's
Court, Namakkal. 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 by making necessary applications
before the Tribunal. No costs.
03.02.2021
krk
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3771 of 2019
To
1.The Chief Judicial Magistrate,
Motor Accident Claims Tribunal,
Namakkal.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3771 of 2019
krk
C.M.A.No.3771 of 2019
03.02.2021
https://www.mhc.tn.gov.in/judis/
