Madras High Court
Chinnappachetty vs Raghupathy Gowda on 23 February, 2021
C.M.A.No.852 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2021
CORAM:
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
CMA. No.852 of 2011
Chinnappachetty ... Appellant
..Vs..
1.Raghupathy Gowda
2.United India Insurance Company Limited,
Rep by its Manager,
No.12/133/1 Jawali Street,
Palamaer Post, Chitoor District
Andhra Pradesh.
3.Chand Fzulal
4.Oriental Insurane Company Limited,
Rep by its Branch Manager,
No 15/442-1-1,
P.B.No 59, R.F.Road,
Ananthpur Post and District
Andhra Pradesh. ...Respondents
Appeal filed under Section 173 of the Motor Vehicles Act,
1988, against the Judgment and decree dated 06.12.2010 made in
M.C.O.P.No.154 of 2006 on the file of Principal Subordinate Judge (Motor
Accidents Claims Tribunal), Krishnagiri.
For Appellant : Mr. M.Sriram
For Respondent No.2 : Mr. C.Paranthaman
Respondent No.1 & 3 : Notice not yet served
Respondent No.4 : Mr. R.Sreevidhya
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C.M.A.No.852 of 2011
JUDGMENT
Dissatisfied with the judgment and decree, dated 06.12.2010,
passed by the tribunal awarding compensation of Rs.58,550/- along with
interest at the rate of 6% per annum, the claimant is before this Court
for enhancement of compensation.
2. It is the case of the claimant/appellant herein that on
22.12.2004 at about 7.30 a.m, the claimant was traveling as a passenger
in the bus bearing Reg.No. KA-07-5757 from Baireddypalli to Punganoor
in Chitoor District Andhra Pradesh, while proceeding near the Kothapalli
cross road, the driver drove the bus in a rash and negligent manner and
dashed against the tempo bearing no. AP-02-4589 which came in the
opposite direction. Due to the accident, the appellant sustained grievous
injury. The appellant filed a claim petition before the tribunal, claiming
compensation of Rs.5,00,000/- for the injuries sustained by him due to
the said accident.
3. Before the tribunal the claimant was examined as P.W.1 and
the doctor T.V.Gandhi was examined as P.W.2 and marked documents
Ex.A1 to A12. On the side of the respondents, no witnesses were
examined and no documents were marked.
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C.M.A.No.852 of 2011
4. The Tribunal, based on the oral and documentary evidence, has
held that the accident had occurred only due to the rash and negligent
driving on the part of the 1st respondent vehicle and awarded
compensation to the claimant Rs.58,550/- payable by the 1st and 2nd
respondents along with interest at the rate of 6% p.a from the date of
petition till realization.
5. The learned counsel for the appellant has submitted that the
appellant sustained multiple grievous injuries and sustained 35%
disability. The appellant also produced the Disability Certificate issued by
P.W.2/Dr.T.V.Ganthi and marked the same as E.A11. The Tribunal ought
to have adopted the multiplier method in calculating the loss of income
and compensation to permanent disability, but erred in fixing Rs.1000/-
per percentage and granted Rs.35,000/- towards permanent disability,
which is very meagre. The tribunal has not fixed any compensation
towards loss of amenities and any amount for mental shock and agony
sustained by the appellant. Considering the nature of disability, the award
passed by the tribunal at Rs.58,550/- under various heads are not
adequate. Hence, he seeks for enhancement of compensation.
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C.M.A.No.852 of 2011
6. The learned counsel appearing for the respondent/Insurance
Company objected for enhancement of compensation and justified the
award passed by the tribunal is reasonable and fair and therefore, does
not warrant interference by this Court.
7. Heard the learned counsel appearing for the
claimant/appellant, the learned counsel appearing for the respondents 2
&4 /Insurance Company and perused the materials available on record.
8. It reveals from the record that Ex.A1/FIR was registered against
the driver of the bus bearing Reg.No. KA-07-5757, it is clearly stated that
the driver of the said bus was at fault. There is no contra evidence on the
side of the respondent to disprove the negligence. In the absence, for the
same, the tribunal based on the evidence of PW1 and Ex.A1/FIR and
Ex.A2/ wound certificate, has come to the conclusion that the driver of the
1st respondent bus was solely responsible for the accident and the
insurance policy was not in existence with the 2 nd respondent/insurance
company, hence the tribunal has directed the 2nd respondent /insurance
company is liable to pay the compensation. The tribunal has also held that
the respondents 3 & 4 are no way responsible for the accident. This Court
finds no error on the said decision of the tribunal, accordingly, this Court
confirms the negligence and liability fixed by the tribunal.
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C.M.A.No.852 of 2011
9. As far as quantum of compensation is concerned, the claimant
was aged 61 years at the time of the accident, the tribunal has accepted
the disability assessed by the doctor at 35% and fixed Rs.1000 per
percentage and awarded Rs.35,000/- towards permanent disability.
Considering the evidence of PW2/Doctor who deposed that due to the
injuries sustained by him in the said accident, the claimant could not work
hard as before the accident, hence he assessed 35%. In view of evidence
of the PW2/doctor and the age of the deceased, this Court is inclined to
fix Rs.1200/-per percentage and calculated the compensation for
permanent disability for 35% at Rs.42,000/-.
10. Considering the nature of injuries and permanent disability, the
compensation awarded by the tribunal under other heads are also
requires modification. Accordingly, the sum awarded under singe head
'Transport to hospital and extra nourishment' at Rs.5000/- is set aside
and granted a sum of Rs.5000/- each under the heads 'Transport to
hospital' and 'Extra nourishment' separately. The sum awarded under the
head 'pain and suffering' at Rs. 5000/- is enhanced to Rs.10,000/-. The
sum awarded at Rs.2000/- toward Medical Assistance is set aside and a
sum of Rs.4,000/- is granted under the head 'Attendant charges'. The
tribunal, as per Ex.A10/Medical Bills has awarded a sum of Rs.5,533/-
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C.M.A.No.852 of 2011
towards Medial expenses, the same is confirmed. Likewise, the
compensation awarded at Rs.6,000/- under the head 'partial loss of
earning' is also confirmed. The tribunal has not awarded compensation for
'loss of amenity', hence it would be proper to award Rs.6000/- under the
head 'Loss of Amenities.' Thus the award of the tribunal is modified by
this Court as follows:
Heads Compensation Compensation
awarded by the modified by this
tribunal Court
Rs. Rs.
Permanent disability 35,000/- 42,000
(35 x 1200)
Transport to hospital and 5,000/- ...
Extra Nourishment
Transport to Hospital .. 5,000
Extra Nourishment ... 5,000
Pain and suffering 5,000/- 10,000
Medical Assistance 2,000/- ..
Attendant Charges .. 4,000
Partial loss of earning 6,000/- 6,000
Medical Expenses 5,533/- 5,533
Loss of amenities .. 6,000
Total : 58,533/- 83,533
(rounded of to
Rs.83,500/-)
11. In the result, this Civil Miscellaneous Appeal is partly allowed
and the compensation awarded by the tribunal at sum of Rs. 58,533/- is
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C.M.A.No.852 of 2011
enhanced to Rs. 83,500/-. The rate of interest fixed by the at 6% per
annum is set aside. The appellant/claimant is entitled with the rate of
interest at 7.5% per annum for the entire compensation amount.
12. The 1st & 2nd respondents are directed to deposit the entire
compensation amount along with interest as modified by this Court, less
the amount already deposited, within a period of six weeks from the date
of receipt of a copy of this judgment. On such deposit, the
appellant/claimant is permitted to withdraw the compensation as modified
by this Court along interest and costs, after adjusting the amount, if any,
already withdrawn, by filing necessary applications before the Tribunal.
No costs.
23.02.2021
Index: Yes/No
Internet: Yes/No
ak
To
1. Principal Subordinate Judge
(Motor Accidents Claims Tribunal),
Krishnagiri.
2. The Section Officer,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.852 of 2011
D.KRISHNAKUMAR, J.
ak
CMA.No.852 of 2011
23.02.2021
https://www.mhc.tn.gov.in/judis/
