N.Manikandan vs Manoharan
2021 Latest Caselaw 2888 Mad

                                                                         C.M.A. No.3522 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 08.02.2021

                                                    CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                              C.M.A.No.3522 of 2019

                   N.Manikandan                                               .. Appellant
                                                        Vs.

                   1.Manoharan

                   (R1 remained exparte before the Tribunal)

                   2.United India Insurance Co. Ltd.,
                     Third Party Hub,
                     Silingi Building, No.134, Greams Road,
                     Murugesanaicker Street,
                     Chennai 600 006.                                        .. Respondents


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

                   Vehicles Act, 1988, against the judgment and decree dated 20.10.2017, made

                   in M.C.O.P. No.5587 of 2012, on the file of the II Court of Small Causes,

                   (Motor Accident Claims Tribunal) Chennai.



                   _____
                   1/11



https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A. No.3522 of 2019

                                         For Appellant   : Mr.K.V.Muthu Visakan
                                         For Respondents : Mr.D.Baskaran (For R2)
                                                 JUDGMENT

This appeal has been filed for enhancement of compensation granted by

the award dated 20.10.2017, made in M.C.O.P. No.5587 of 2012, on the file

of the II Court of Small Causes, (Motor Accident Claims Tribunal) Chennai.

2.The appellant-claimant filed M.C.O.P. No.5587 of 2012, on the file of

the II Court of Small Causes, (Motor Accident Claims Tribunal) Chennai,

claiming a sum of Rs.15,00,000/- as compensation for the injuries sustained

by him in the accident that took place on 13/14.07.2012.

3.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

the 1st respondent, driver-cum-owner of the Car and directed the 2nd

respondent, as insurer of the offending vehicle, to pay a sum of Rs.84,000/- as

compensation to the appellant.

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3522 of 2019

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

award dated 20.10.2017, made in M.C.O.P. No.5587 of 2012, the appellant

has come out with the present appeal.

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

accident, the appellant sustained grievous injuries, fracture and has taken

treatment for almost 92 days in three different Hospitals in three different

spells. The Institute of Non-Communicable Diseases & Government

Royapettah Hospital, Chennai has issued a certificate that the appellant is

physically handicapped with a permanent disability of 50% and shortening of

4 cms in his right leg. The Tribunal erroneously reduced the percentage of

disability to 16% and granted meagre amounts as compensation towards

disability. Due to the injuries suffered and disability sustained, the appellant

could not do any work as he was doing earlier. At the time of accident, he was

a Painter and was earning a sum of Rs.600/- per day. The Tribunal

erroneously fixed a meagre amount of Rs.4,000/- as monthly income and

failed to grant any amount for loss of earning power. The compensation

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3522 of 2019

awarded by the Tribunal under different heads are meagre. The learned

counsel further submitted that the appellant has taken treatment in Payward,

Rajiv Gandhi Government General Hospital, Chennai and produced Ex.P9 –

medical bills to the tune of Rs.36,217/-. The Tribunal erroneously did not

accept the same and granted only a sum of Rs.2,000/- for medical expenses

and prayed for enhancement of the 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. The appellant was not referred to the Medical

Board. Ex.P18-disability certificate was issued only for availing social

benefits. He is not entitled to any compensation for disability by adopting

multiplier method. The Tribunal considering the materials on record, awarded

compensation, which are not meagre. The appellant has not made out any

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

appeal.

7.Heard through video conference the learned counsel appearing for the

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3522 of 2019

appellant as well as the 2nd respondent-Insurance Company and perused the

materials available on record.

8.It is the case of the appellant that he suffered two fractures and 3

injuries. The Institute of Non-Communicable Diseases & Government

Royapettah Hospital assessed that the appellant suffered 50% disability.

P.W.3 Doctor also assessed that the appellant suffered 50% permanent

disability. Due to the injuries suffered and disability sustained, he could not

do his work as Painter, as he was doing earlier and lost his earning power.

P.W.3 Doctor deposed that the appellant's right leg shortened by 4 cms. In the

cross examination, he has admitted that he has not mentioned in the medical

records that there is shortening of leg and also admitted that bones in the right

leg were cut and removed. In view of the above admission, the Tribunal held

that there is no shortening of leg. The appellant also failed to prove that he

suffered functional disability and lost earning capacity. Hence, he is not

entitled to compensation by adopting multiplier method.

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3522 of 2019

9.The Institute of Non-Communicable Diseases & Government

Royapettah Hospital as well as P.W.3 Doctor certified that the appellant

suffered 50% disability. The 2nd respondent-Insurance Company has not let in

any evidence to disprove the disability certificates produced and marked by

the appellant as well as the evidence of P.W.3 Doctor. The Tribunal without

there being any contra evidence, reduced the percentage of disability to 16%

and granted compensation by adopting percentage method. In the absence of

any evidence with regard to disability issued by the qualified medical

practitioners, the reason given by the Tribunal for reduction of disability is not

acceptable. The appellant is entitled to compensation for 50% disability. The

accident is of the year 2012. Hence, the compensation awarded by the

Tribunal towards disability is enhanced to a sum of Rs.1,50,000/- [Rs.3,000/-

x 50%], at the rate of Rs.3,000/- per percentage for 50% disability. The

appellant has produced Ex.P9 – medical bills. From Ex.P9, it is seen that the

appellant has taken treatment in Payward, Rajiv Gandhi Government General

Hospital, Chennai. The Tamil Nadu Medical Services Corporation Limited has

issued receipts for the medical expenses incurred by the appellant to the tune

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3522 of 2019

of Rs.36,217/-. In view of the same, the amount of Rs.2,000/- granted by the

Tribunal towards medical bills is enhanced to Rs.36,217/-, as per Ex.P9.

Further, the appellant has taken treatment as in-patient at Rajiv Gandhi

Government General Hospital from 14.07.2012 to 24.09.2012, at

M.N.Orthopaedic Hospital, Kilpauk from 25.09.2013 to 28.09.2013 and at

Kilpauk Medical College Hospital from 08.08.2014 to 27.08.2014.

Considering the period of treatment taken and nature of injuries suffered by

the appellant, the amounts granted by the Tribunal towards attendant charges,

extra nourishment, transportation and pain and suffering are meagre and

hence, the same are enhanced to Rs.75,000/-, Rs.60,000/-, Rs.25,000/- and

Rs.50,000/- respectively.

10.The appellant claimed that he was a Painter at the time of accident

and was earning a sum of Rs.600/- per day. He failed to prove the same. In

the absence of any materials, the Tribunal fixed a sum of Rs.4,000/- per

month as notional income of the appellant. The same is meagre. The accident

is of the year 2012. Considering the year of accident and nature of work done

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3522 of 2019

by the appellant, a sum of Rs.9,500/- per month is fixed as notional income.

Due to the injuries suffered and treatment taken, the appellant would not have

worked atleast for a period of 12 months. Hence, the amount granted by the

Tribunal towards loss of income is enhanced to Rs.1,14,000/- [Rs.9,500/- x

12 months], at the rate of Rs.9,500/- per month for 12 months. The Tribunal

has not awarded any amount for loss of amenities and damage to clothes.

Considering the discomfort and inconvenience faced by the appellant due to

the injuries sustained in the accident, a sum of Rs.25,000/- and Rs.2,000/- are

awarded towards loss of amenities and damage to clothes respectively. The

appellant claimed that he produced Ex.P14 – bill for future medical expenses.

He has not substantiated the same by examining the author of the document.

Hence, he is not entitled to compensation for future medical expenses. The

amounts awarded by the Tribunal under other heads are just and reasonable and

hence, the same are hereby confirmed. Thus, the compensation awarded by the

Tribunal is modified as follows:

S. No Description Amount awarded Amount Award by Tribunal awarded by confirmed or

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3522 of 2019

(Rs) this Court (Rs) enhanced or granted

1. Disability 48,000/- 1,50,000/- Enhanced

2. Pain and suffering 10,000/- 50,000/- Enhanced

3. Extra nourishment 5,000/- 60,000/- Enhanced

4. Transportation 5,000/- 25,000/- Enhanced

5. Medical bills 2,000/- 36,217/- Enhanced

6. Attendant charges 2,000/- 75,000/- Enhanced

7. Loss of income 12,000/- 1,14,000/- Enhanced

8. Loss of amenities - 25,000/- Granted

9. Damage to clothes - 2,000/- Granted Total 84,000/- 5,37,217/- Enhanced by Rs.4,53,217/-

11.In the result, the appeal is partly allowed and the amount awarded

by the Tribunal at Rs.84,000/- is enhanced to Rs.5,37,217/- together with

interest at the rate of 9% per 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,

within a period of six weeks from the date of receipt of a copy of this

judgment, to the credit of M.C.O.P. No.5587 of 2012. On such deposit, the

appellant is permitted to withdraw the award amount, now determined by this

Court, along with interest and costs, after adjusting the amount, if any already

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3522 of 2019

withdrawn, by filing necessary applications before the Tribunal. No costs.

08.02.2021 gsa

To

1.The II Small Causes Judge, (Motor Accident Claims Tribunal), Chennai.

2.The Section Officer, V.R Section, High Court, Madras.

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.3522 of 2019

V.M.VELUMANI, J.,

gsa

C.M.A.No.3522 of 2019

08.02.2021

_____

https://www.mhc.tn.gov.in/judis/