Madras High Court
Kanmani vs D.Nalini on 9 February, 2021
C.M.A. No.3006 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3006 of 2019
Kanmani .. Appellant
Vs.
1.D.Nalini
2.National Insurance Co. Ltd.,
Branch Office, 19/B, Rajamani Thottam,
Bhavani Main Road,
N.H.47, Sankakiri,
Salem District 637 301. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 20.12.2018, made
in M.C.O.P. No.8 of 2017, on the file of the Sub Court, (Motor Accident
Claims Tribunal), Palacode.
For Appellant : Mr.K.Suryanarayan
for M/s.M.Mohamed Riyaz
For Respondents : No appearance (For R1)
Mrs.R.Sreevidhya (For R2)
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C.M.A. No.3006 of 2019
JUDGMENT
This appeal has been filed for enhancement of compensation granted
by the award dated 20.12.2018, made in M.C.O.P. No.8 of 2017, on the file of
the Sub Court, (Motor Accident Claims Tribunal), Palacode.
2.The appellant-claimant filed M.C.O.P. No.8 of 2017, on the file of the
Sub Court, (Motor Accident Claims Tribunal), Palacode, claiming a sum of
Rs.10,00,000/- as compensation for the injuries sustained by her in the
accident that took place on 30.09.2016.
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 Lorry belonging to the 1st respondent and directed the 2nd
respondent as insurer of the offending vehicle, to pay a sum of Rs.2,39,500/-
as compensation to the appellant at the first instance and recover the same
from the 1st respondent.
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C.M.A. No.3006 of 2019
4.Not being satisfied with the amounts awarded by the Tribunal in the
award dated 20.12.2018, made in M.C.O.P. No.8 of 2017, 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 multiple fractures and
has taken treatment as in-patient at Salem Medical Centre Hospital from
30.08.2016 to 04.12.2016. The appellant was referred to the Medical Board,
Dharmapuri. The Medical Board at Government Medical College Hospital,
Dharmapuri examined the appellant and certified that the appellant suffered
35% disability. The Tribunal having accepted Ex.P9 - disability certificate
issued by the Medical Board, erred in awarding meagre amount of Rs.3,000/-
per percentage for 35% disability. Taking into consideration the nature of
injuries and disability suffered by the appellant, the Tribunal ought to have
adopted multiplier method in awarding compensation towards disability. At
the time of accident, the appellant was working as a Nurse at Salem Medical
Centre Hospital and Mettur Siddharth Maternity Hospital and was earning a
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C.M.A. No.3006 of 2019
sum of Rs.15,000/- per month. She has produced Ex.P11 – salary certificate
to prove her income. The Tribunal erroneously rejected Ex.P11 and fixed only
a meagre sum of Rs.6,000/- per month as notional income. The Tribunal
failed to award any amount towards loss of amenities. The amounts awarded
by the Tribunal towards loss of income, pain and suffering, extra
nourishment, attendant charges and transportation to the Hospital are meagre
and prayed for enhancement of the compensation.
6.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the appellant in her cross examination
admitted that she was earning a sum of Rs.10,000/- per month. On the other
hand, she has produced Ex.P11-salary certificate to show that she was earning
a sum of Rs.15,000/- per month. The appellant failed to prove Ex.P11 by
examining the author of the document. In view of the above, the Tribunal
rejected the evidence of appellant as P.W.1 with regard to income and Ex.P11
– salary certificate and fixed a sum of Rs.6,000/- per month as notional
income, which is not meagre. Considering the nature of injuries suffered by
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C.M.A. No.3006 of 2019
the appellant, the Tribunal awarded compensation under different heads,
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.Though notice has been served on the 1st respondent and her name is
printed in the cause list, there is no representation for her either in person or
through counsel.
8.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.
9.From the materials on record, it is seen that it is the case of the appellant
that at the time of accident, she was working as a Nurse at Salem Medical
Centre Hospital and Mettur Siddharth Maternity Hospital and was earning a
sum of Rs.15,000/- per month. She has produced Ex.P11 – salary certificate
to prove her income. In the cross examination, the appellant has admitted that
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C.M.A. No.3006 of 2019
she was earning a sum of Rs.10,000/- per month. The appellant has not
examined the author of Ex.P11 to prove her income as Rs.15,000/- per month.
The Tribunal taking into consideration the evidence of P.W.1 and Ex.P11,
rejected the same and fixed the monthly income at Rs.6,000/-. The accident is
of the year 2016. The cost of living has increased enormously and salary of
even unskilled workers has increased substantially. Hence, a sum of
Rs.15,000/- per month, as claimed by the appellant is fixed as notional
income. Due to the injuries suffered in the accident, she would not have
worked atleast for a period of six months. Hence, the amount of Rs.18,000/-
awarded by the Tribunal towards loss of income is enhanced to Rs.90,000/-
[Rs.15,000/- x 6 months], at the rate of Rs.15,000/- per month for 6 months.
10.According to the appellant, in the accident, she suffered grievous
injuries and multiple fracture and has taken treatment at Salem Medical Centre
Hospital as in-patient from 30.08.2016 to 04.10.2011, for a period of 36 days.
She was referred to the Medical Board. The Medical Board at Government
Medical College Hospital, Dharmapuri examined the appellant and certified
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C.M.A. No.3006 of 2019
that the appellant suffered 35% disability. The Tribunal has awarded a sum of
Rs.3,000/- per percentage for 35% disability. This Court by the judgment
reported in 2020 (1) TN MAC 617 [M. Chinnathambi Vs. S.Deepa and
another], fixed a sum of Rs.4,000/- per percentage of disability for the
accident occurred in the year 2014 & 2015 and a sum of Rs.5,000/- per
percentage of disability for the accident occurred from the year 2016
onwards, due to raise in cost of living. In the present case, the accident is of
the year 2016. In view of the same, a sum of Rs.5,000/- is awarded per
percentage of disability. Hence, the amount awarded by the Tribunal towards
disability is enhanced to Rs.1,75,000/- [Rs.5,000/- x 35%], at the rate of
Rs.5,000/- per percentage for 35% disability. Considering the nature of injuries
and period of treatment taken by the appellant, the amounts awarded by the
Tribunal towards attendant charges and extra nourishment are meagre and
hence, the same are enhanced to Rs.35,000/- each. Considering the age of the
appellant, due to the injuries sustained in the accident, she would have
suffered discomfort and inconvenience. The Tribunal failed to award any
amount towards loss of amenities and damage to clothes. The appellant is
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C.M.A. No.3006 of 2019
entitled to a sum of Rs.50,000/- towards loss of amenities and Rs.1,000/-
towards damage to clothes. 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 this confirmed or
(Rs) Court (Rs) enhanced or
granted
1. Disability 1,05,000/- 1,75,000/- Enhanced
2. Pain and suffering 40,000/- 40,000/- Confirmed
3. Extra nourishment 10,000/- 35,000/- Enhanced
4. Transportation 5,000/- 10,000/- Enhanced
5. Damage to clothes - 1,000/- Granted
6. Loss of income 15,000/- 90,000/- Enhanced
7. Loss of amenities - 50,000/- Granted
8. Medical expenses 59,500/- 59,500/- Confirmed
9. Attendant charges 5,000/- 35,000/- Enhanced
Total 2,39,500/- 4,95,500/- Enhanced by
Rs.2,56,000/-
Though the Tribunal has awarded a sum of Rs.20,000/- towards extra
nourishment, Rs.10,000/- towards transportation and Rs.18,000/- towards
loss of income, while mentioning in the tabular column, it has been
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C.M.A. No.3006 of 2019
erroneously mentioned as Rs.10,000/- for extra nourishment, Rs.5,000/- for
transportation and Rs.15,000/- for loss of income. Subsequently the total
compensation awarded by the Tribunal has been wrongly arrived at
Rs.2,39,500/-, instead of Rs.2,57,500/-.
11.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.2,39,500/- is enhanced to Rs.4,95,500/- together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit. The 2nd respondent 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.8 of 2017, at the first instance and recover the same from the 1 st
respondent. 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 withdrawn, by filing necessary
applications before the Tribunal. It is made clear that the appellant is not
entitled for any interest for the delay period on the amount of Rs.2,56,000/-,
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C.M.A. No.3006 of 2019
enhanced by this Court as per the order of this Court dated 23.07.2019, made
in C.M.P.No.11317 of 2019 in C.M.A.SR.60525 of 2019. No costs.
09.02.2021
gsa
To
1.The Chief Judicial Magistrate,
(Motor Accident Claims Tribunal),
Thiruvannamalai.
2.The Section Officer,
V.R Section, High Court, Madras.
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C.M.A. No.3006 of 2019
V.M.VELUMANI, J.,
gsa
C.M.A.No.3006 of 2019
09.02.2021
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