Madras High Court
R.Vasanth @ Bala V.Rajan vs L.Moti on 8 February, 2021
1 CMA No.1336 OF 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.02.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.1336 of 2018
R.Vasanth @ Bala V.Rajan ...Appellant
Vs
1.L.Moti
(R1 remain exparte before the Tribunal hence his
presence may be dispensed with)
2.United India Insurance Company Limited,
No.19, Andiappa Gramani Street,
Royapuram,
Chennai-13. ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 08.09.2017 made
in M.A.C.T.O.P.No.2503 of 2008 on the file of the Motor Accidents Claims
Tribunal, VI Court of Small Causes, Chennai.
For Appellant : Ms.A.Subadra
For Respondents : Mrs.R.Rathna Thara for R2
R1-Exparte
https://www.mhc.tn.gov.in/judis/
2 CMA No.1336 OF 2018
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel
for the second respondent.
2.The appeal is filed by the claimant for enhancement of
compensation.
3.The claimant herein met with a road accident on 03.06.2008, while
he was riding his two wheeler bearing Registration No.TN 22 M 0425.
According to the claimant, when he was riding his two wheeler along GST
road at Kirapakkam junction, Guduvanchery, an Auto bearing Registration
No.TN 05 V 6424 driven rash and negligently by its driver hit behind the
claimant's two wheeler. The claimant sustained grievous injury and was
admitted in the hospital. He was treated as inpatient from 03.06.2008 to
27.06.2008 for the fractured injury. The fracture on his right humerus at
supra condylar level with external fixation, external fixation debridement,
open reduction internal fixation + olecranon osteotomy, had lead to 45%
partial and permanent disability. In support of his claim, he has relied upon
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the evidence of P.W.2 and the disability certificate Ex.P10 given by P.W.2.
The claim petition seeking compensation of Rs.6,00,000/- filed before the
Tribunal.
4. The claim petition was opposed by the Insurance Company stating
that the vehicle insured under them was not driven by qualified driver and
the accident was not intimated to them. In any event, the claim made by the
claimant is excessive, arbitrary and imaginary. The accident occurred only
due to the negligence of the claimant. The claimant drove his scooter rash
and negligently and hit TSTC bus bearing Registration No. TN 32 N 2483.
Instead of claiming damages against TSTC bus, the claim being falsely
made against the Insurance Company.
5. The Tribunal after considering the evidence held that the claimant
has proved the accident occurred in the manner which he has stated in the
petition. No evidence is adduced on behalf of the respondent to disprove
the negligence on the part of the first respondent driver. Having held that
the negligence is on the part of the first respondent driver, the Tribunal
awarded a sum of Rs.1,57,862/- with 7.5% interest from 29.07.2008 till the
https://www.mhc.tn.gov.in/judis/
date of realisation.
6. In the appeal, the claimant contends that the Tribunal failed to
properly appreciate the medical evidence particularly, the disability
certificate given by P.W.2, who has assessed the injury at 45%. After
converting the said injury to loss of earning capacity, the Tribunal ought to
have applied multiplier. Contrarily, the Tribunal has awarded a lumpsum of
Rs.30,000/- fixing the injury at 10%. Further, the learned counsel for the
claimant submitted that the injured was in hospital for nearly two months
and lost his income during the treatment period and four months thereafter.
The Tribunal ought to have awarded compensation for atleast six months
loss of income.
7.Per contra, the learned counsel appearing for the Insurance
Company submitted that the claimant suffered injury which are not
mentioned in the schedule. The same was well treated and got united.
There is no evidence to show that the fracture malunited after treatment.
The Tribunal has given its logical reasoning based on the medical evidence
and guidelines while assessing the disability. The evidence of P.W.2 and
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the disability Certificate Ex.P10 given by him are not based on any proper
examination of the claimant. No X-ray was filed to show that the claimant
sustained comunited fracture and the same malunited after surgery. Further,
P.W.2 is not the doctor who treated the claimant. No doctor from Hindu
Mission hospital which treated him examined as witness.
8. On hearing both the learned counsels and considering the evidence,
this Court finds that reasoning given by the Tribunal for disbelieving the
evidence of P.W.2 and his Certificate Ex.P10 is wholly justifiable. The
assessment of disability by P.W.2 is contrary to the medical evidence and
guidelines. The injury as mentioned in the discharge certificate does not
indicate that the said injury will lead to any functional disability impairing
the earning capacity of the claimant. The discharge summary and the
medical evidence indicate the loss of neurological muscle strength and
fracture being treated by open reduction internal fixation. Therefore,
permanent disability is assessed at 15% instead of 10% and loss of income
is enhanced from two months to three months. Except this, there is no other
head, where the claimant is entitled for enhancement of compensation.
Accordingly, the award of the Tribunal is enhanced as below:
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Compensation under Various Award passed by this
Heads Court
Pain and Suffering Rs. 20,000/-
Transport and Extra Nourishment Rs. 10,000/-
Loss of income for 3 months Rs. 22,500/-
(3X7500)
Disability (15X3000) Rs. 45,000/-
Attender charges for 24 days Rs. 7,200/-
(24X300)
Loss of amenities Rs. 5,000/-
Medical Expenditure (Ex.P3) Rs. 70,662/-
Total Rs.1,80,362/-
9.Accordingly, the Civil Miscellaneous Appeal is partly allowed by
enhancing compensation from Rs.1,57,862/- to Rs.1,80,362/- with costs and
7.5% interest from the date of numbering the petition i.e.,29.07.2008 till the
date of deposit. If there is any delay in restoring the claim petition for
default, the said period shall be excluded for computing interest. The
Insurance Company shall deposit the money within a period of eight weeks
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from the date of receipt of a copy of this judgment and on such deposit, the
claimant is permitted to withdraw the same on appropriate application. The
appellant, if entitle for refund of excess court fee paid in the appeal, same
may be considered in accordance to law.
08.02.2021
Speaking/Non Speaking
Index :Yes/No
vri
To
Motor Accidents Claims Tribunal
VI Court of Small Causes,
Chennai.
https://www.mhc.tn.gov.in/judis/
Dr.G.JAYACHANDRAN,J.
VRI
CMA NO.1336 of 2018
08.02.2021
https://www.mhc.tn.gov.in/judis/
