Madras High Court
Kamarunnisa Settu vs P.Chinnasamy on 24 February, 2021
C.M.A.No.4273 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.4273 of 2019
Kamarunnisa Settu .. Appellant
Vs.
1.P.Chinnasamy
2.Divisional Manager
M/s.The Oriental Insurance Company Ltd.
Diviya Tower, 2nd floor, no.15-1
Fort main road, Salem District-636 001. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 24.06.2016
made in M.C.O.P.No.139 of 2015 on the file of Motor Accident Claims
Tribunal, Chief Judicial Magistrate's Court, Perambalur.
For Appellant : Mr.A.Sathishkumar
for Mr.C.Thangaraju
For R1 : No appearance
For R2 : Mr.M.J.Vijayaraaghavan
1/9
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C.M.A.No.4273 of 2019
JUDGMENT
The Civil Miscellaneous Appeal is filed for enhancement of
compensation granted by the Tribunal in the award dated 24.06.2016 made in
M.C.O.P.No.139 of 2015 on the file of Motor Accident Claims Tribunal,
Chief Judicial Magistrate's Court, Perambalur.
2.The appellant is claimant in M.C.O.P.No.139 of 2015 on the file of
Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court,
Perambalur. She filed the said claim petition claiming a sum of
Rs.10,00,000/- as compensation for the injuries sustained by her in the
accident that took place on 18.11.2014.
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 Bolero pick up van belonging to the 1st respondent and
directed the 2nd respondent/Insurance Company being insurer of the said
Bolero pick up van to pay a sum of Rs.2,72,970/- as compensation to the
appellant.
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C.M.A.No.4273 of 2019
4.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
5.The learned counsel appearing for the appellant contended that in the
accident, the appellant suffered fractures on right leg, right thigh and right hip
and grievous injuries all over the body. The appellant has taken treatment as
in-patient in Annal Gandhi Government Headquarters Hospital, Puthur,
Trichy, from 18.11.2014 to 26.12.2014 and underwent surgeries.
P.W.2/Doctor after examining the appellant, fixed the disability of the
appellant as 52%. Due to the injuries, the appellant could not do the work as
she was doing earlier. The appellant was working as a building construction
helper and was earning a sum of Rs.15,000/- per month at the time of
accident. The Tribunal fixed a meagre sum of Rs.4,000/- per month as
notional income of the appellant. The amounts awarded by the Tribunal under
different heads are meagre and prayed for enhancement of compensation.
6.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that as per the disability
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C.M.A.No.4273 of 2019
certificate, the appellant suffered only 52% disability. The Tribunal
erroneously fixed the disability as 58%. P.W.2/Doctor has not assessed the
disability for the whole body. The Tribunal without converting the same to
whole body, erroneously granted compensation for entire 58% disability by
adopting multiplier method, which is excessive. The Total compensation
awarded by the Tribunal is not meagre. The appellant has not made out any
case for enhancement of compensation and prayed for dismissal of the appeal.
7.Though notice has been served on the 1st respondent and his name is
printed in the cause list, there is no representation for the 1st respondent either
in person or through counsel.
8.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 2nd respondent/Insurance Company through
“Video-conferencing” and perused the entire materials on record.
9.It is the case of the appellant that in the accident, she suffered
fractures on right leg, right thigh and right hip and grievous injuries all over
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C.M.A.No.4273 of 2019
the body. The appellant has taken treatment as in-patient in Annal Gandhi
Government Headquarters Hospital, Puthur, Trichy, from 18.11.2014 to
26.12.2014 and underwent surgeries. P.W.2/Doctor after examining the
appellant, fixed the disability of the appellant as 58%. A perusal of
Ex.P6/Disability certificate shows that the appellant suffered 58% disability.
In view of the same, the contention of the learned counsel appearing for the
2nd respondent that the appellant suffered only 52% disability is rejected.
P.W.2/Doctor assessed the disability for the part of the body. The Tribunal
without converting the same to whole body, applied multiplier and granted
compensation for 58% disability. Therefore, the disability assessed by
P.W.2/Doctor is converted into whole body and the disability is fixed as 19%.
The appellant claimed that he was working as a building construction helper
and was earning a sum of Rs.15,000/- per month at the time of accident. She
did not file any document to prove her avocation and income. In the absence
of any material evidence with regard to avocation and income, the Tribunal
fixed a sum of Rs.4,000/- per month as notional income of the appellant. The
accident is of the year 2014 and the monthly income fixed by the Tribunal is
meagre. Considering the date of accident, a sum of Rs.8,000/- per month is
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C.M.A.No.4273 of 2019
fixed as notional income of the appellant. The Tribunal erred in fixing the age
of the appellant as 60 years. As per Ex.P5/Aadhar card, date of birth of the
appellant is 17.04.1973. The accident has occurred on 18.11.2014.
Therefore, the age of the appellant is fixed at 41 years at the time of accident.
The correct multiplier applicable is '14'. Thus, the compensation awarded by
the Tribunal towards loss of future earning capacity is modified to
Rs.2,55,360/- (Rs.8,000/- X 12 X 14 X 19/100).
9(i) The appellant has taken treatment as in-patient in Annal Gandhi
Government Headquarters Hospital, Puthur, Trichy, from 18.11.2014 to
26.12.2014 and underwent surgeries. The amounts awarded by the Tribunal
towards attendant charges, extra nourishment and transportation are meagre.
Considering the nature of injuries, disability and period of treatment taken by
the appellant, the amounts awarded by the Tribunal towards attendant
charges, extra nourishment and transportation are hereby enhanced to
Rs.30,000/-, Rs.30,000/- and Rs.10,000/- respectively. The Tribunal has not
awarded any compensation towards loss of amenities. Hence, a sum of
Rs.20,000/- is awarded towards loss of amenities. The amounts awarded by
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C.M.A.No.4273 of 2019
the Tribunal under all 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 confirmed or
(Rs) this Court enhanced or
(Rs) granted or
reduced
1. Loss of future 2,22,720 2,55,360 Enhanced
earning
capacity
2. Medical 250 250 Confirmed
expenses
3. Attendant 10,000 30,000 Enhanced
charges
4. Pain and 30,000 30,000 Confirmed
suffering
5. Extra 10,000 30,000
nourishment
and 10,000 Enhanced
transportation
6. Loss of - 20,000 Granted
amenities
Total 2,72,970 3,75,610 Enhanced by
Rs.1,02,640/-
10.In the result, this Civil Miscellaneous Appeal is partly allowed and
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C.M.A.No.4273 of 2019
the compensation awarded by the Tribunal at Rs.2,72,970/- is hereby
enhanced to Rs.3,75,610/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. It is made clear that
the appellant is not entitled for any interest for the delay period on the amount
of Rs.1,02,640/- enhanced by this Court as per the order of this Court dated
01.10.2019 made in C.M.P.No.18355 of 2019 in C.M.A.SR.No.78583 of
2019. The 2nd respondent/Insurance Company is directed to deposit the award
amount now determined by this Court along with interest and costs, less the
amount already deposited, if any, within a period of six weeks from the date
of receipt of a copy of this judgment. On such deposit, the appellant is
permitted to withdraw the award amount now determined by this Court along
with interest and costs, less the amount if any, already withdrawn. No costs.
24.02.2021
Index : Yes / No
Internet : Yes/ No
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V.M.VELUMANI, J.,
https://www.mhc.tn.gov.in/judis/
C.M.A.No.4273 of 2019
kj
To
1.The Chief Judicial Magistrate
Motor Accident Claims Tribunal
Perambalur.
2.The Section Officer
V.R.Section
High Court, Chennai.
C.M.A.No.4273 of 2019
24.02.2021
https://www.mhc.tn.gov.in/judis/
