Madras High Court

G.Vadivelu vs Indev Trans on 16 February, 2021

                                                                                CMA No.2896 of 2012

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Dated 16.02.2021

                                                          CORAM:

                              THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR

                                                 CMA.No.2896 of 2012


                       G.Vadivelu                              ... Appellant/ Claimant

                                                  Vs.

                       1. Indev Trans,
                          No.17, IV North Beach Road,
                          Off. Krishnan Koil Street, Chennai-1.

                       2. National Insurance Co. Ltd.,
                          No.751, Anna Salai, Chennai-2.       ... Respondents/Respondents

                                      This Civil Miscellaneous Appeal has been filed under

                       Section 173 of the Motor Vehicles Act, 1988, against the decree and

                       judgment dated 11.10.2007 passed by the III Judge, Motor Accident

                       Claims Tribunal, Court of Small Causes, Chennai in MCOP No.5283 of

                       2001.

                                      For Appellant            : Mr.N.S.Sivakumar

                                      For I respondent         : Mr.P.Muralidharan

                                      For II respondent        : Ms. N.B.Surekha

                       Page 1 of 10
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                                                                              CMA No.2896 of 2012



                                                    JUDGMENT

Not satisfied with the quantum of compensation awarded

by the Tribunal, the claimant is before this court to enhance the

compensation.

2. The appellant/ claimants has filed a claim petition

before the Tribunal seeking compensation of Rs.4,00,000/- for the

injuries sustained by him in a road accident that took place on

18.03.2001.

3. The brief case of the claimant is as follows: On

18.03.2001, at about 2.00 p.m, while the claimant was pushing his

motorcycle at Ennore Express Road near Palagai Thotti, a trailor lorry

bearing registration No.TN-04-C-7887, hit the claimant thereby he

sustained grievous injuries. According to the claimant, the rash and

negligent driving of the driver of the Trailor Lorry was the cause of

accident, and since the first respondent insured his vehicle with the

second respondent, both of them are liable to pay compensation to

them.

4. The second respondent/ Insurance Company resisted the

https://www.mhc.tn.gov.in/judis/ CMA No.2896 of 2012

claim petition by filing counter affidavit.

5. Before Tribunal, on the side of the claimant, the

claimant and Dr.J.R.R.Thiagarajan were examined as PW1 and PW2

respectively and Ex.P1 to Ex.P10 were marked. On the side of the

respondents, no oral and documentary evidence was adduced.

6. After analysing the evidence on record, the Tribunal has

awarded a sum of Rs.89450/- as compensation to the claimant under

various heads as extracted hereunder.

                                   Sl              Heads                 Amount in
                                   No                                      Rs.
                                   1    Loss of earning (2000x12)         12,000
                                   2    Transportation charges             2,000
                                   3    Extra Nourishment                  2,000
                                   4    Damages to       clothes   and     2,000
                                        motorcycle

                                   6    Pain and sufferings               20,000
                                   7    permanent disability              50,000
                                        (50x1000)
                                   8    Other expenses                     1,000
                                         Total                            89,450

Not satisfied with the quantum of compensation, the claimant has filed

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the present appeal for enhancement of compensation.

7. Heard the learned counsel for the appellant and the

learned counsel for the second respondent and I have perused the

materials on record.

8. The learned counsel appearing for the appellant/

claimant submitted that the claimant is a fisherman and at the time of

accident, he was aged 19 years and was earning a sum of Rs.2,000/- per

month and due to the accident, he is not able to do his work as done

earlier. He further submitted that the Doctor, who has given disability

Certificate Ex.P8 was examined as PW2 and he assessed the disability

suffered by the claimant as 70%, however, the Tribunal on its own, has

fixed at 50%, without any reason and awarded a sum of Rs.50,000/-

towards permanent disability. He also submitted that the compensation

awarded under the other heads also very meagre and no compensation

was awarded towards " Attender Charges and Loss of amenities" and

therefore, he prayed for enhancement of compensation.

9. The learned counsel appearing for the respondent/

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insurance company submitted that after analysing the evidence on

record and the medical reports, the Tribunal has awarded a just and

reasonable compensation of Rs.89,450/- and therefore, the award

passed by the Tribunal does not warrant any interference by this court.

10. Now the points for determination is

(i) Whether the compensation awarded by the Tribunal has to be enhanced.?

11. Point No.1:

A perusal of the Ex.P8 shows that it was a disability

certificate issued by Dr.J.R.R.Thiagarajan, in which he assessed the

disability suffered by the claimant as 70%. He was also examined as

PW2 and deposed that he examined the claimant and assessed the

disability of the claimant and given the disability certificate Ex.P8. But

without any contradictory evidence or any other materials, the Tribunal

on its own has assessed the disability as 50%. The Tribunal is not an

expert to assess the disability. If such evidence with regard to the

disability assessed by the doctor is disbelieved, the Tribunal ought to

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have referred the claimant to the Medical Board for assessing the

disability suffered by the claimant. Therefore, in the absence of any

other materials to disprove the disability certificate Ex.P8, the

assessment made by the Tribunal by assessing the disability suffered by

the claimant as 50% is unfair. Accordingly, considering the evidence of

PW2, this court fixed the disability of the claimant as 70% and

awarded a sum of Rs.1,000/- per percentage. In so far as the other

heads are concerned, the contention of the appellant is that the Tribunal

has awarded very meagre amounts and not awarded any amounts

towards " Attenders Charges and Loss of Amenities". By considering

the above submissions and also by considering the facts and

circumstances of the case and the nature of injuries sustained by the

claimant, this court is inclined to modify the award passed by the

Tribunal and the modified compensation awarded under various are

extracted hereunder.

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Sl. Heads Compensation Compensation No Awarded by the enhanced/Awarded Tribunal by this court 1 Loss of earning 12,000 12,000 (2000x12) 2 Transportation charges 2,000 2,000 3 Extra Nourishment 2,000 5,000 4 Damages to clothes and 2,000 2,000 motorcycle

6 Pain and Sufferings 20,000 20,000 7 Permanent Disability 50,000 70,000 8 Other expenses 1,000 1,000 9 Attenders charges for - 3,000 three months 10 Loss of amenities - 5,000 Total 89,450 1,20,450 Rounded off to 1,20,500 This amount shall carry interest at the rate of 7.5% per annum from the

date of claim petition till the date of deposit.

12. In the Award, the Tribunal has decided that as per

F.I.R., the fault is on the side of the driver of the lorry to cause the

accident. The Tribunal has also directed the insurance company to

deposit the compensation amount and also given liberty to recover the

award amount from the owner of the vehicle. The above said decision

is unaltered. Accordingly, the point is answered.

13. In the result,

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(i) The Civil Miscellaneous Appeal is partly allowed and

the award passed by the Tribunal is enhanced from 89,450/- to

Rs.1,20,500/-. No costs.