Madras High Court

Kannan vs Arumugasamy on 8 February, 2021

                                                                                C.M.A.No.9 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 08.02.2021

                                                         CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                  C.M.A.No.9 of 2021

                   Kannan                                                   .. Appellant


                                                          Vs.

                   1.Arumugasamy
                   (R1 was set exparte before the Tribunal)

                   2.ICICI Lombard General Insurance Co. Ltd.
                   No.140, Nungambakkam High Road
                   2nd floor, Chottabai centre
                   Nungambakkam, Chennai-34.                               .. Respondents


                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the

                   Motor Vehicles Act, 1988, against the judgment and decree dated 14.02.2020

                   made in M.C.O.P.No.2895 of 2014 on the file of Motor Accident Claims

                   Tribunal, Special Sub Court No.2, Small Causes Court, Chennai.

                                         For Appellant     : Mr.C.Richard Suresh Kumar

                                         For R2            : Mrs.R.Sreevidhya


                   1/9


https://www.mhc.tn.gov.in/judis/
                                                                                C.M.A.No.9 of 2021

                                                   JUDGMENT

The Civil Miscellaneous Appeal is filed for enhancement of

compensation granted by the Tribunal in the award dated 14.02.2020 made in

M.C.O.P.No.2895 of 2014 on the file of Motor Accident Claims Tribunal,

Special Sub Court No.2, Small Causes Court, Chennai.

2.The appellant is claimant in M.C.O.P.No.2895 of 2014 on the file of

Motor Accident Claims Tribunal, Special Sub Court No.2, Small Causes

Court, Chennai. He filed the said claim petition claiming a sum of

Rs.20,00,000/- as compensation for the injuries sustained by him in the

accident that took place on 08.02.2014.

3.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 tipper lorry belonging to the 1st respondent and directed the

2nd respondent/Insurance Company being insurer of the said lorry to pay a

sum of Rs.11,95,700/- as compensation to the appellant at the first instance

and recover the same from the 1st respondent, owner of the tipper lorry.

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4.Not being satisfied with the amounts awarded by the Tribunal, the

appellant has come out with the present appeal seeking enhancement of

compensation.

5.The learned counsel appearing for the appellant contended that in the

accident, the appellant suffered supra condylar fracture on right femur,

bimalleolar right ankle and multiple injuries all over the body. He has taken

treatment as in-patient in Rajiv Gandhi Government Hospital from

09.02.2014 to 14.02.2014 and then in Balaji Hospital, from 14.02.2014 to

03.04.2014, totally for 55 days and continued his treatment as out-patient for

prolonged period. Due to the injuries, the appellant is unable to walk, squat

on the floor, finds it difficult to climb steps, unable to wear chapels, limping

of right leg and suffered shortening of leg. The appellant was referred to the

Medical Board. The panel of Doctors in the Medical Board evaluated and

certified that the appellant suffered 25% permanent disability. At the time of

accident, the appellant was working as a screen printing operator and was

earning a sum of Rs.10,000/- per month. The Tribunal erroneously fixed a

sum of Rs.9,000/- per month and granted only 40% enhancement towards

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future prospects. The appellant produced Exs.P8 and P9, estimation for

conducting plastic surgery to the tune of Rs.1,20,000/- and Rs.2,00,000/-

respectively. The Tribunal failed to consider Exs.P8 and P9 and did not grant

any compensation towards future medical expenses. The total compensation

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 and lost his earning capacity. The

appellant did not examine any Doctor to prove that he suffered functional

disability. In the absence of any material with regard to loss of earning

capacity, the Tribunal erroneously adopted multiplier method and granted

excessive compensation towards disability. In view of the same, the appellant

is not entitled to any enhancement of compensation. The appellant has not

proved Exs.P8 and P9 by examining its author. The Tribunal considering the

same, rightly rejected Exs.P8 and P9. The appellant has not made out any

case for enhancement of compensation and prayed for dismissal of the appeal.

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7.Heard through “Video-conferencing” 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.

8.It is the case of the appellant that due to the injuries and fractures, he

has taken treatment as in-patient in Rajiv Gandhi Government Hospital from

09.02.2014 to 14.02.2014 and then in Balaji Hospital, from 14.02.2014 to

03.04.2014, totally for 55 days. The Medical Board after examining the

appellant certified that the appellant suffered 25% disability. According to the

appellant, he could not continue his work as he was doing earlier. The

appellant has not examined any Doctor to prove that he suffered functional

disability and lost his earning capacity. From the documents filed and marked

by the appellant, there is nothing on record to show that the appellant suffered

functional disability and lost his earning capacity. In Ex.C1/Disability

certificate, it is stated as “His disability is stiffness of knee and ankle with

disfigurement due to fracture of supra condylar femur left and bimalleolar

fracture left ankle and his percentage is 25%”. The Tribunal without there

being any medical records and evidence, on assumption held that the

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appellant suffered 25% functional disability and granted compensation by

adopting multiplier method. The appellant is not entitled for any

compensation towards disability by adopting multiplier method. The

compensation awarded by the Tribunal towards disability is excessive.

9.As far as the contention of the learned counsel appearing for the

appellant that the Tribunal failed to grant compensation towards future

medical expenses is concerned, the appellant failed to examine the author of

Exs.P8 and P9 and prove the same. In the absence of evidence, the Tribunal

rightly did not accept the same. Therefore, the appellant is not entitled to any

compensation towards future medical expenses. The appellant has taken

treatment for 55 days. The amounts awarded by the Tribunal towards extra

nourishment and attendant charges are meagre. Considering the period of

treatment taken by the appellant, the compensation awarded by the Tribunal

towards extra nourishment and attendant charges are hereby enhanced to

Rs.35,000/- each. 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:





https://www.mhc.tn.gov.in/judis/
                                                                                   C.M.A.No.9 of 2021




                    S.No           Description   Amount awarded        Amount           Award
                                                  by Tribunal        awarded by      confirmed or
                                                      (Rs)            this Court     enhanced or
                                                                         (Rs)         granted or
                                                                                       reduced
                   1.          Disability                5,67,000        5,67,000 Confirmed
                   2.          Pain and                    30,000          30,000 Confirmed
                               suffering
                   3.          Transportation              13,000          13,000 Confirmed
                   4.          Extra                       25,000          35,000 Enhanced
                               nourishment
                   5.          Damage to                    2,000            2,000 Confirmed
                               clothes and
                               articles
                   6.          Loss of                     30,000          30,000 Confirmed
                               amenities
                   7.          Attendant                   13,000          35,000 Enhanced
                               charges
                   8.          Medical                   5,15,645        5,15,645 Confirmed
                               expenses
                               TOTAL                    11,95,645     12,27,645 Enhanced by
                                                   rounded off to rounded off to Rs.32,000/-
                                                        11,95,700     12,27,700

10.In the result, this Civil Miscellaneous Appeal is partly allowed and

the compensation awarded by the Tribunal at Rs.11,95,700/- is hereby

enhanced to Rs.12,27,700/- together with interest at the rate of 7.5% per

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annum from the date of petition till the date of deposit. The 2nd

respondent/Insurance Company is directed to deposit 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. 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.