Madras High Court
K. Govindaraj vs M. Mahalingam on 20 January, 2021
C.M.A. No.3345 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3345 of 2019
K. Govindaraj .. Appellant
Vs.
1.M. Mahalingam
2.Chief Manager,
Oriental Insurance Co. Ltd.,
New No.216, Old No.115, Prakasam Street,
Broad way, Chennai 600 108. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 09.03.2017, made
in M.C.O.P. No.23 of 2016, on the file of the Special Sub Court, (Motor
Accident Claims Tribunal) Cuddalore.
For Appellant : Mr.S.Udayakumar
for M/s. M.Malar
For Respondents : No appearance (For R1)
Mr.G.Anandan (For R2)
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C.M.A. No.3345 of 2019
JUDGMENT
The matter is heard through "Video Conferencing".
This appeal has been filed for enhancement of compensation granted
by the award dated 09.03.2017, made in M.C.O.P. No.23 of 2016, on the file
of the Special Sub Court, (Motor Accident Claims Tribunal) Cuddalore.
2.The appellant-claimant filed M.C.O.P. No.23 of 2016, on the file of
the Special Sub Court, (Motor Accident Claims Tribunal) Cuddalore,
claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained
by him in the accident that took place on 17.09.2015.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
driver of the Car belonging to the 1st respondent and directed the 2nd
respondent, as insurer of the offending vehicle, to pay a sum of Rs.4,16,900/-
as compensation to the appellant.
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C.M.A. No.3345 of 2019
4.Not being satisfied with the amounts awarded by the Tribunal in the
award dated 09.03.2017, made in M.C.O.P. No.23 of 2016, the appellant has
come out with the present appeal.
5.The learned counsel appearing for the appellant contended that the
appellant was working as a Mason and was earning a sum of Rs.15,000/- per
month. The Tribunal erroneously fixed a meagre sum of Rs.6,500/- per month
as notional income and granted only meagre amounts as compensation. The
Medical Board examined the appellant and certified that the appellant
suffered 77% disability. The Tribunal reduced the percentage of disability to
35% and granted lesser amount towards disability. The multiplier applied by
the Tribunal is not correct. The Tribunal failed to grant any amount for future
medical expenses and prayed for enhancement of the compensation.
6.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the appellant failed to prove his age,
avocation and income. In the absence of any materials, the Tribunal fixed
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C.M.A. No.3345 of 2019
Rs.6,500/- per month as notional income and applied the multiplier '13',
taking into consideration the age of the appellant as 50 years, as mentioned in
the Accident Register. The Tribunal taking note of the fact that the appellant
claimed stairs and came to the Court, fixed the percentage of disability at
35%. The appellant has not proved that he requires treatment in future. The
appellant has not made out any case for enhancement of the compensation
and prayed for dismissal of the appeal.
7.Heard learned counsel appearing for the appellant as well as the 2nd
respondent-Insurance Company and perused the materials available on record.
8.It is the case of the appellant that he was working as a Mason and was
earning a sum of Rs.15,000/- per month. The appellant has not produced any
materials in support of his case. In the absence of any materials, the Tribunal
fixed a sum of Rs.6,500/- per month as notional income. The accident is of the
year 2015. Considering the date of accident and nature of work done by the
appellant, a sum of Rs.10,000/- per month is fixed as notional income. The
Medical Board after examining the appellant, has fixed 77% partial permanent
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C.M.A. No.3345 of 2019
disability. The Tribunal observed the appellant who came to the Court, by
claiming stairs, to give evidence, held that the disability suffered by the appellant
has improved and he can do other work than a Mason and fixed 35% as loss of
earning power, applied the multiplier '13' and granted compensation towards loss
of earning power. There is no error in the reasoning given by the Tribunal for
fixing 35% as loss of earning power. Hence, the compensation granted by the
Tribunal towards loss of earning power is modified to Rs.5,46,000/-
[Rs.10,000/- x 12 x 13 x 35%].
9.For the injuries sustained in the accident, the appellant has taken
treatment as in-patient at Puducherry JIPMER Hospital from 18.01.2015 to
30.01.2015. The Tribunal has not awarded any amount towards attendant
charges. Considering the period of treatment taken, a sum of Rs.10,000/- is
awarded towards attendant charges. Due to the injuries sustained, the appellant
would have suffered inconvenience. The Tribunal failed to award any amount
towards loss of amenities. Considering the nature of injuries and disability
suffered, a sum of Rs.15,000/- is awarded towards loss of amenities. The
Tribunal has awarded a meagre sum of Rs.5,000/- towards extra nourishment.
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C.M.A. No.3345 of 2019
Considering the nature of injuries suffered by the appellant, the same is
enhanced to Rs.10,000/-. The amount awarded by the Tribunal under 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 this confirmed or
(Rs) Court (Rs) enhanced or
granted
1. Loss of earning power 3,54,900/- 5,46,000/- Enhanced
2. Pain and suffering 30,000/- 30,000/- Confirmed
3. Extra nourishment 5,000/- 10,000/- Enhanced
4. Transportation 10,000/- 10,000/- Confirmed
5. Damage to clothes 2,000/- 2,000/- Confirmed
6. Loss of amenities - 15,000/- Granted
7. Medical expenses 15,000/- 15,000/- Confirmed
8. Attendant charges - 10,000/- Granted
Total 4,16,900/- 6,38,000/- Enhanced by
Rs.2,21,100/-
10.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.4,16,900/- is enhanced to Rs.6,38,000/- together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit. The 2nd respondent-Insurance Company is directed to deposit the
award amount, now determined by this Court, along with interest and costs,
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C.M.A. No.3345 of 2019
within a period of six weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P. No.23 of 2016. On such deposit, the
appellant is permitted to withdraw the award amount, now determined by this
Court, along with interest and costs, after adjusting the amount, if any already
withdrawn, by filing necessary applications before the Tribunal. No costs.
20.01.2021
gsa
To
1.The Special Subordinate Court,
(Motor Accident Claims Tribunal),
Cuddalore.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.3345 of 2019
V.M.VELUMANI, J.,
gsa
C.M.A.No.3345 of 2019
20.01.2021
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