M.Abinash vs M/S. Sri Aaa Bus Service
2021 Latest Caselaw 2891 Mad

                                                                         C.M.A. No.3370 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.3370 of 2019
                                            and C.M.P.No.19677 of 2019

                   M.Abinash                                                  .. Appellant


                                                          Vs.


                   1.M/s. Sri AAA Bus Service,
                     Ashok Leyland Bus,
                     No.106/51, Avalkara Street,
                     Kosapet, Vellore District,
                     Tamilnadu.

                   (R1 remained exparte before the Tribunal.)

                   2.United India Insurance Co. Ltd.,
                     Rep. By its Branch Manager,
                     Office at No.46/51,
                     TKM Complex, Katpadi Road,
                     Thottapalayam,
                     Vellore, Tamil Nadu.                                    .. Respondents



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https://www.mhc.tn.gov.in/judis/
                                                                             C.M.A. No.3370 of 2019

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

                   Vehicles Act, 1988, against the judgment and decree dated 03.04.2019, made

                   in M.C.O.P. No.227 of 2015, on the file of the Chief Judicial Magistrate

                   Court, (Motor Accident Claims Tribunal) Vellore.


                                         For Appellant      : Mr.P. Satheesh Kumar

                                         For Respondents : Mr.J.Chandran (For R2)
                                                 JUDGMENT

This appeal has been filed for enhancement of compensation granted by

the award dated 03.04.2019, made in M.C.O.P. No.227 of 2015, on the file of

the Chief Judicial Magistrate Court, (Motor Accident Claims Tribunal)

Vellore.

2.The appellant-claimant filed M.C.O.P. No.227 of 2015, on the file of

the Chief Judicial Magistrate Court, (Motor Accident Claims Tribunal)

Vellore, claiming a sum of Rs.5,00,000/- as compensation for the injuries

sustained by him in the accident that took place on 09.02.2015.

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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 Bus belonging to the 1st respondent and directed the 2nd

respondent, as insurer of the vehicle to pay a sum of Rs.4,80,800/- as

compensation to the appellant.

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

award dated 03.04.2019, made in M.C.O.P. No.227 of 2015, 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 and has taken treatment as

in-patient at Hospital for a period of 5 days. At the time of accident, the

appellant was working as a Lorry Driver and was earning a sum of

Rs.15,000/- per month. The Tribunal erroneously fixed a meagre amount of

Rs.4,000/- per month as notional income. The appellant was aged 21 years at

the time of accident. Instead of applying multiplier '18', the Tribunal

erroneously applied the multiplier '17'. The appellant produced Ex.P11 series

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– medical bills to the tune of Rs.3,12,744/-. The Tribunal erroneously rejected

Ex.P11, on the ground that the medical bills are after the date of filing the

claim petition. The learned counsel further submitted that the appellant filed

Ex.P13 – transportation receipts to the tune of Rs.41,555/-. The Tribunal

failed to grant any amount towards transportation and prayed for

enhancement of the compensation.

6.The learned counsel appearing for the 2nd respondent-Insurance

Company made his submissions in support of the award passed by the

Tribunal and prayed for dismissal of the appeal.

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

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

materials available on record.

8.It is the case of the appellant that in the accident that occurred on

09.02.2015, he sustained multiple injuries all over his face and body. His right

thigh both bones, knee bone, right hand fingers 2nd, 3rd, 5th Metacarpal bones got

fractured. According to the appellant, he has taken treatment as in-patient at

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Government Hospital, Vellore for a period of 5 days. At the time of accident, he

was working as a Lorry Driver and was earning a sum of Rs.15,000/- per month.

He filed the claim petition claiming compensation of Rs.5,00,000/- for the

injuries sustained by him in the accident. The appellant was referred to the

Medical Board, Vellore. The Medical Board, Government Vellore Medical

College Hospital, examined the appellant and certified that the appellant suffered

55% (temporary) disability due to malunion of right femur. During trial, the

appellant produced Ex.P10 – discharge summary dated 16.05.2018 for the

treatment taken from 27.03.2018 to 17.05.2018 and contended that subsequent to

filing of the claim petition, he was treated as in-patient in Manisundaram Medical

Mission Hospital and underwent surgery. The appellant also produced Ex.P11 –

medical bills of the year 2018. The learned counsel appearing for the appellant

contended that the appellant was a Driver and due to the injuries and disability

suffered, he could not do his work as he was doing earlier. From Ex.C1 –

disability certificate, it is seen that the Medical Board, Government Vellore

Medical College Hospital certified that the appellant suffered 55% (temporary)

disability due to malunion of right femur, but did not suffer any functional

disability or lost his earning power.

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9.As far as Ex.P10-discharge summary of Manisundaram Medical Mission

Hospital is concerned, it is dated 16.05.2018, for the period of treatment taken

from 27.03.2018 to 17.05.2018. From Ex.P10, it is seen that appellant was

treated for fracture malunion right shaft of femur 1.5 years old. The accident is of

the year 2015. From the exhibits filed by the appellant, there is nothing on record

to show that he had continued his treatment for the injuries suffered in the

accident which occurred in the year 2015 and taken treatment in the year 2018,

only for the injury suffered by him in the accident that occurred on 09.02.2015.

The appellant has not filed any document to show that he took treatment

continuously from the year 2015. The appellant has also not amended the claim

petition that he continued treatment and underwent surgeries in the year 2018.

The learned counsel appearing for the appellant contended that the appellant was

taking continuous treatment from Puttur, as well as at Manisundaram Medical

Mission Hospital. From the materials before the Tribunal or before this Court, it

is seen that the appellant has not filed any document to show that he has taken

treatment from the year 2015 to 2018, continuously. Further, the appellant has not

examined any Doctor to prove that he suffered functional disability and lost his

earning capacity. The appellant also not filed his driving license to prove that he

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was a Driver. Without there being any evidence that the appellant suffered

functional disability and lost his earning capacity, the Tribunal erroneously

adopted multiplier method for 55% (temporary) disability and granted

compensation excessively. The Tribunal has not converted the disability to the

whole body also. The Tribunal considering the documents filed by the appellant,

rejected Ex.P11 series - medical bills and Ex.P13 series - transport receipts, by

giving valid reason. The appellant is not entitled to any enhancement as the

Tribunal has already granted excessive amounts. In view of the excess amount

granted for the disability in the absence of any evidence with regard to functional

disability and loss of earning capacity, the appellant is not entitled to any

enhancement and the appeal is liable to be dismissed.

10.In the result, the appeal is dismissed and the amount awarded by the

Tribunal at Rs.4,80,800/- together with interest at the rate of 7.5% per annum

from the date of petition till the date of deposit is confirmed. The 2nd

respondent is directed to deposit the award amount, 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.227 of 2015. On such deposit, the

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appellant is permitted to withdraw the award amount, along with interest and

costs, after adjusting the amount, if any already withdrawn, by filing

necessary applications before the Tribunal. Consequently, connected

Miscellaneous Petition is closed. No costs.

08.02.2021 gsa

To

1.The Chief Judicial Magistrate, (Motor Accident Claims Tribunal), Vellore.

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

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V.M.VELUMANI, J.,

gsa

C.M.A.No.3370 of 2019

08.02.2021

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