Madras High Court
V.Venkatesh vs M/S. Octopus Marine Engineering ... on 10 February, 2021
C.M.A.No.1815 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.02.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
C.M.A.No.1815 of 2013
V.Venkatesh ... Appellant
Vs.
1.M/s. Octopus Marine Engineering Works,
No.104/2, East Mada Church Street,
Royapuram, Chennai – 13.
2.The United India Insurance Co. Ltd.,
No.134, Greems Road, Silingai Building,
HUB, IV Floor, Chennai – 6. ... Respondents
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act,
1988, to set aside the award passed in the above MCOP.No.4281 of 2003
dated 21.11.2008, on the file of the Additional District Judge, Fast Track
Court – I, Chennai / Motor Accident Claims Tribunal, Chennai, in so far
as the same is against the claim of the appellant and award full and just
compensation.
1/11
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C.M.A.No.1815 of 2013
For Appellant : Mr. K.R.Ponnusamy
For Respondents : Mr. D.Bhaskaran, for R2
R1- Notice unserved
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside
the award passed in the above MCOP.No.4281 of 2003 dated
21.11.2008, on the file of the Additional District Judge, Fast Track Court
No.I, Chennai / Motor Accident Claims Tribunal, Chennai.
2. It is the case of the appellant/claimant that on 03.05.2003
at about 7.30 p.m., the petitioner was riding his two wheeler bearing
Registration No.TN-04-Z-4205 on Apparsamy Koil Street Junction at
Ennore Express Road. At that time, a Lorry bearing Registration No.TN-
04-D-3655, owned by the first respondent and insured with the second
respondent, came in a rash and negligent manner on the same Road in
opposite direction and hit the petitioner's vehicle. Due to the accident, the
appellant/claimant sustained multiple injuries. It is the further case of the
appellant/claimant that he was working as Auto Driver and earning a sum
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C.M.A.No.1815 of 2013
of Rs.150/- per day. Hence, he made a claim for a sum of Rs.1,50,000/-
as compensation.
3. Before the Tribunal, to prove the case of the appellant/
claimant, he examined himself as PW1 besides examining 2 other
witnesses as PW2 & PW3 and Exs.P1 to P8 were marked. On the side of
the Insurance Company, none were examined and no exhibits were
marked.
4. On appreciation of evidences, the Tribunal found that the
accident had occurred due to the rash and negligent driving of the driver
of the first respondent's Lorry and the second respondent/Insurance
Company being the insurer of the said vehicle, is liable to pay
compensation. Accordingly, the Tribunal had awarded a sum of
Rs.49,000/- as compensation with 9% interest p.a. from the date of
petition till the date of realisation. The break-up details of the amounts
awarded by the Tribunal under various heads are as follows:
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C.M.A.No.1815 of 2013
Heads Amount awarded by the
Tribunal
Permanent disability (20%) Rs. 40,000/-
(2000 x 20)
Conveyance expenses Rs. 2,000/-
Extra Nourishment Rs. 2,000/-
Pain and sufferings Rs. 5,000/-
Total Rs. 49,000/-
As against the said award, the claimant has filed the present
appeal.
5. The learned counsel for the appellant/claimant submitted
that due to the accident, the appellant sustained grievous injuries,
namely, fracture left zygoma, injury right forearm & left mandible and he
was treated as in-patient for 10 days in Hospital. He further submitted
that the Tribunal has not considered the evidence of PW2, Dr.Kalkura,
who deposed before the Tribunal that the appellant had sustained 35%
permanent disability due to the accident. However, the Tribunal without
any basis had reduced the permanent disability to 20%. Hence, the
percentage of disability assessed by the Doctor at 35% needs to be
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C.M.A.No.1815 of 2013
retained. He would also submit that the amounts awarded by the
Tribunal under other heads are also very meager. Further, no amounts
were awarded under the heads Loss of Income, Attender Charges and
Loss of Amenities. Hence, he prayed to award amounts under the above
heads and enhance the compensation amount.
6. The learned counsel appearing for the second respondent/
Insurance Company would submit that the Tribunal by appreciating the
oral and documentary evidence, has rightly fixed 20% disability.
Thereafter, by awarding a sum of Rs.2,000/- per percentage of disability,
has awarded a sum of Rs.40,000/- under the head "Permanent Partial
Disability", which is fair and reasonable. As far as the other heads
concerned, the Tribunal has rightly fixed the compensation. Therefore,
the appeal is liable to be dismissed.
7. This Court considered the rival submissions of both the
parties and perused the materials available on record.
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C.M.A.No.1815 of 2013
8. PW2, the Doctor who gave treatment to the appellant, in
his evidence had stated that the appellant/claimant had suffered
permanent disability at 35% due to the accident and the disability
certificate issued by him was marked as Ex.P5. But, the Tribunal,
without any basis, has fixed the permanent disability at 20%. The said
assessment of the Tribunal is without any documentary evidence.
Therefore, this Court accepts the assessment made by PW2 Doctor and
fixes the percentage of permanent disability at 35%. Thus, by awarding
Rs.1,500/- per percentage of disability, this Court awards Rs.52,500/-
(1500 x 35%) under the head "permanent disability",.
9. As far as “Loss of Income” is concerned, the Tribunal has
not awarded any amount. The appellant / claimant was admitted in the
Hospital as an in-patient from 03.05.2003 to 12.05.2003 and at the time
of the accident, the claimant was an auto driver and earning Rs.150/- per
day. Hence, a sum of Rs.12,000/- is awarded under the head "Loss of
Income for a period of three months" [4000 x 3].
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C.M.A.No.1815 of 2013
10. Considering the grievous injures sustained by the
appellant/claimant, this Court finds that the sum of Rs.5,000/- awarded
by the Tribunal towards "Pain and Sufferings" appears to be on the lower
side, and hence, the same is enhanced to Rs.15,000/-.
11. Further, considering the treatment given to the appellant
/ claimant, this Court finds that the sum of Rs.2,000/- awarded towards
“Extra Nourishment” appears to be on the lower side and hence, the same
is hereby enhanced to Rs.5,000/-
12. This Court finds that though long duration of treatment
underwent by the appellant/claimant, no amount was awarded under the
head “Attender Charges” and hence, a sum of Rs.5,000/- is awarded
under such head.
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C.M.A.No.1815 of 2013
13. Similarly, no amount was awarded under the head “Loss
of Amenities” and hence a sum of Rs.5,000/- is awarded under such
head.
14. The sum of Rs.2,000/- awarded by the Tribunal under
the head "Conveyance Expenses" is just and fair, and hence, the same is
hereby confirmed.
15. Accordingly, modified compensation payable would be:
Heads Amount awarded by Enhanced
the Tribunal compensation
Permanent Disability Permanent Disability (20%) Permanent Disability (35%)
(2000 x 20) (1500 x 35)
Rs. 40,000/- Rs. 52,500/-
Loss of Income - Rs. 12,000/-
(Rs.4,000 x 3)
Conveyance Expenses Rs. 2,000/- Rs. 2,000/-
Extra Nourishment Rs. 2,000/- Rs. 5,000/-
Attender Charges - Rs. 5,000/-
Pain and Sufferings Rs. 5,000/- Rs. 15,000/-
Loss of Amenities - Rs. 5,000/-
Total Rs. 49,000/- Rs.96,500/-
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C.M.A.No.1815 of 2013
16. It is the contention of the learned counsel for the
Insurance Company that the Tribunal has fixed higher rate of interest at
9% p.a. for the compensation amount. The said contention of the learned
counsel for the Insurance Company has some force. Hence, the enhanced
compensation amount shall carry interest only at the rate of 7.5% p.a. and
the compensation awarded by the Tribunal shall carry interest at 9% p.a.
from the date of claim petition till the date of deposit.
17. Thus, the Civil Miscellaneous Appeal is partly allowed
by enhancing the compensation amount from Rs.49,000/- to Rs.96,500/-
(Rupees Ninety Six Thousand and Five Hundred Only). The enhanced
compensation amount of Rs.47,500/- shall carry interest only at the rate
of 7.5% per annum and the compensation awarded by the Tribunal, i.e.,
Rs.49,000/- shall carry interest at 9% per annum from the date of claim
petition till the date of deposit. The second respondent/ Insurance
Company is directed to deposit the award amount as determined above,
less the amount if any already deposited, within a period of four weeks
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C.M.A.No.1815 of 2013
from the date of receipt of a copy of this judgment. On such deposit
being made, the appellant/ claimant is permitted to withdraw the award
amount, less the amount(s) if any already withdrawn by filing necessary
application before the Tribunal. The appellant/claimant is directed to pay
necessary court fee, if any, on the enhanced compensation amount. No
costs.
10.02.2021
Internet :Yes/No
Index : Yes/No
dna
To
1.The Additional District Judge,
Fast Track Court – I, Chennai /
Motor Accident Claims Tribunal, Chennai.
2.The United India Insurance Co. Ltd.,
No.134, Greems Road, Silingai Building,
HUB, IV Floor, Chennai – 6.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1815 of 2013
D.KRISHNAKUMAR, J.,
dna
C.M.A.No.1815 of 2013
10.02.2021
https://www.mhc.tn.gov.in/judis/
