Madras High Court
C.Nazar vs K.Ramesh on 10 February, 2021
C.M.A.No.162 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.02.2021
CORAM
HONOURABLE MR. JUSTICE R.SUBBIAH
AND
HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
C.M.A.No.162 of 2021
C.Nazar
S/o. Chinakani ..Appellant/Petitioner
Vs.
1. K.Ramesh
S/o. Kuttiyappan
2. The HDFC ERGO General Insurance
Co. Ltd.,
Old No.559, New No.528, 2nd Floor,
Thenampet, Chennai – 18. ...Respondents/Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 03.10.2018 made
in M.C.O.P.No.505 of 2014 on the file of the Motor Accident Claims
Tribunal, 2nd Additional District Judge, Poonamallee.
For Appellant ::Mr.K.Varadha Kamaraj
For Respondents ::Ex-parte for R1
Mr.N.Somasundar for R2
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C.M.A.No.162 of 2021
JUDGMENT
(Judgment of the Court was delivered by SATHI KUMAR SUKUMARA KURUP,J.)
This Civil Miscellaneous Appeal has been filed against the Judgment
and Decree dated 03.10.2018 made in M.C.O.P.No.505 of 2014 on the file
of Motor Accident Claims Tribunal, 2nd Additional District Judge,
Poonamallee.
2. The injured passenger of the bus was the claimant before the
Tribunal, Poonamallee. Claiming that the award passed by the Tribunal
being on the lower side, the injured/claimant has filed this Civil
Miscellaneous Appeal.
3. The case in brief is as follows:
On 02.04.2014 at about 9.30 pm, claimant was travelling as a
passenger in a private bus/KRS bearing Registration No. TN 60 S 3578.
When the bus was proceeding near the Petrol pump at Maraimalai Nagar, a
container lorry was proceeding in front of the bus. Suddenly it swerved on
the right side and came in front of the bus. Therefore, the driver of the bus
could not control the speed. Even though he tried his best to avoid the
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C.M.A.No.162 of 2021
collission, the bus collided with the container lorry. In the impact the
passenger/claimant was thrown out from the bus and he suffered multiple
fractures. He had suffered head injury, Diffused cerebral Edema, Diffused
axonal severe injury, Left Parietal lobe sub cortical Haemorrhagic contusion,
Right frontal Lobe Subarachnoid Haemorrhage Bilateral Tentorial Subdural
Hemorrhage, Bone fracture of C7 Vertebral spinuous. He was treated in the
hospital from 03.04.2014 to 02.06.2014 for a period of 60 days as inpatient
and underwent three surgeries. Later, he underwent treatment at Narayana
Ayurvedha Hospital, Palakkad for a period of 21 days.
4. Mr.K.Varadha Kamaraj, learned counsel for the appellant/claimant
submitted his arguments. As per his submissions, the claimant was working
as a driver in the FEFSI. The petitioner himself was examined as P.W.1,. He
had furnished documents as proof of avocation by producing identity card as
Ex.P.8, the proof of driving licence as Ex.P.14 and Bank passbook as
Ex.P.13. Even though, the appellant, as claimant, marked documents to
prove the injuries, disability certificate issued by the duly constituted
Medical Board, Salary certificate as a proof of income and avocation, the
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C.M.A.No.162 of 2021
Tribunal rejected the same and fixed notional income and passed the award.
The Tribunal had not considered the loss of income suffered by the appellant
due to the partial permanent disability caused to him and therefore the
appeal has been filed.
5. Mr.N.Somasundar, learned counsel appearing for the Insurance
Company submitted that the Tribunal had a chance of observing the
claimant before the Tribunal. The injuries mentioned in the medical
certificate were on the head and spine. The medical board had stated that
the claimants suffered 82% disability. If that had been true, the claimant
would not to have been mentally alert as he had given cogent answers to the
questions put to him in the cross examination by the learned counsel for the
Insurance Company. Therefore, the Tribunal did not accept the disability
certificate under Ex.P.17. Likewise, Ex.P.18 was the certificate issued from
FEFSI stating the income of the claimant. The claimant had not examined
any of the FEFSI office bearers. FEFSI is a society, registered under the
Societies Registration Act and to show that the claimant is a bona fide
employee of the said FEFSI, none of the office bearers have been examined
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C.M.A.No.162 of 2021
with the help of the registers maintained for the payment of salary of
employees. Therefore, the Tribunal had rightly rejected the claim of salary
on the assessment of evidence and had logically arrived at a just conclusion
and granted compensation. There is nothing on record to prove that the
claimant had sufferred functional disability. Therefore, the award is
reasonable and acceptable. This appeal lacks merits and it has to be
dismissed.
6. Point for consideration
Whether the appellant/claimant is entitled for enhancement of the
award amount.
7. Perused the petition and counter in MCOP.No.505 2014 and the
award passed by the Motor Accident Claims Tribunal, 2nd Additional
District Judge, Poonamallee and the grounds of appeal filed by the claimants
seeking enhancement.
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C.M.A.No.162 of 2021
8. On perusal of the records of the Motor Accident Claims Tribunal, it
is found that the Tribunal had fixed the notional income of a sum of
Rs.15000/- per month. During the period of treatment, he could not have
attended to his work. Therefore, awarding a sum of Rs.1,80,000/- towards
loss of income for 12 months is justified. Loss of income due to partial
permanent disability is arrived at as follows:
Income fixed :: Rs.15,000/-
Annual income :: Rs.15000x12
:: Rs.1,80,000/-
Taking the multiplier as 14 for the age group 41 to 45 years and
disability at 82%, loss of income will be,
Loss of Income due to
partial permanent disability :: Rs.1,80,000 x 82/100 x 14
:: Rs.20,66,400/-
9. For the attendant charges no amount was granted by the Tribunal.
Considering the nature of injuries and the claimant had taken treatment as
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C.M.A.No.162 of 2021
inpatient and underwent three surgeries during the period of treatment (i.e.,)
12 months, this Court awards a sum of Rs.60,000/- towards attendant
charges. This Court awards towards “Loss of Amenities” and “Future
Medical Expenses” at Rs.1,00,000/- and Rs.2,00,000/- respectively.
10. Since the amounts awarded by the Tribunal under all the other
heads are just and fair, the same are hereby confirmed. The break-up details
of the amounts awarded under various heads are as follows:
Sl. Head under which the Amounts Amounts
No compensation is awarded awarded by the awarded by this
Tribunal Court
1 Partial Permanent 2,46,000 20,66,400
Disability
2 Pain and Sufferings 2,00,000 2,00,000
3 Medical Expenses 8,12,850 8,12,850
4 Loss of income during the 1,80,000 1,80,000
period of treatment
5 For Transportation 25,000 25,000
6 Extra Nourishment 25,000 25,000
7 Attendant Charges - 60,000
8 Loss of Ameneties - 1,00,000
9 Future Medical Expenses - 2,00,000
Total 13,11,000 36,69,250
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C.M.A.No.162 of 2021
12. The Point for consideration is answered in favour of the
appellant/claimant and against the respondents/Insurance Company.
13. In the result, this Civil Miscellaneous Petition is partly allowed.
The second respondent/Insurance Company is directed to deposit the
amount, which we have determined in this appeal, to the credit of
M.C.O.P.No.505 of 2014, on the file of the Motor Accident Claims Tribunal,
2nd Additional District Judge, Poonamallee, with interest at the rate of 7.5%
per annum from the date of Claim Petition till the date of deposit along with
costs if any as awarded by the Tribunal, through RTGS or NEFT method as
held by this Court in (The Oriental Insurance Company Limited, Kannur
Vs. Rajesh and two others) 2016 (1) TN MAC 433, after adjusting the
amount, if any, already deposited, within a period of eight weeks from the
date of receipt of a copy of this judgment. On such deposit, the claimant
shall be entitled to withdraw the amount with accrued interest. The appellant
is directed to pay appropriate Court fees within a period of two months,
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C.M.A.No.162 of 2021
failing which, they are not entitled to claim interest on the award amount.
No costs.
(R.P.S.J.) (S.S.K.J.)
dh 10.02.2021
Internet: Yes/No
Speaking order/Non Speaking order
To
1.The Motor Accident Claims Tribunal,
2nd Additional District Judge, Poonamallee.
2.The Section Officer,
V.R.Section,
High Court of Madras.
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C.M.A.No.162 of 2021
R.SUBBIAH, J.
AND
SATHI KUMAR SUKUMARA KURUP, J.
dh
C.M.A.No.162 of 2021
10.02.2021
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