Madras High Court
S.Shanmugam vs K.Selvaganesan on 21 January, 2021
C.M.A.No.3476 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3476 of 2019
S.Shanmugam .. Appellant
Vs.
1.K.Selvaganesan
2.IFFCO Tokio General Insurance
Co. Ltd.
No.128, IV floor, IFFCO Bhavan
Habibullah Road, T.Nagar
Chennai-600 108. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 08.03.2019
made in M.C.O.P.No.4046 of 2015 on the file of Motor Accident Claims
Tribunal, II Additional Sub Court, Cuddalore.
For Appellant : Mr.S.Udayakumar
For R1 : No appearance
For R2 : Mrs.K.Saraswathi
for Mr.C.R.Krishnamoorthy
JUDGMENT
This matter is heard through “Video-Conferencing”.
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C.M.A.No.3476 of 2019
The Civil Miscellaneous Appeal is filed for enhancement of
compensation granted by the Tribunal in the award dated 08.03.2019 made in
M.C.O.P.No.4046 of 2015 on the file of Motor Accident Claims Tribunal, II
Additional Sub Court, Cuddalore.
2.The appellant is claimant in M.C.O.P.No.4046 of 2015 on the file of
Motor Accident Claims Tribunal, II Additional Sub Court, Cuddalore. He
filed the said claim petition claiming a sum of Rs.30,00,000/- as
compensation for the injuries sustained by him in the accident that took place
on 26.09.2015.
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 omni bus belonging to the 1st respondent and directed the
2nd respondent/Insurance Company being insurer of the said bus to pay a
sum of Rs.6,79,400/- as compensation to the appellant at the first instance
and recover the same from the 1st respondent as the driver of the bus
belonging to the 1st respondent did not have valid permit to drive the bus at
the time of accident.
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C.M.A.No.3476 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 the
appellant was a wholesale merchant of vegetables and flowers and was
earning a sum of Rs.35,000/- per month at the time of accident. The Tribunal
without considering the same, erred in fixing notional income of the appellant
as Rs.5,000/- per month. In the accident, the appellant suffered fractures on
fibula and tibia bones and right leg. The Medical Board after examining the
appellant, certified that the appellant has suffered 42% functional disability.
The appellant has taken treatment as in-patient in MIOT Hospital, from
26.09.2015 to 10.10.2015 for 15 days. As per the discharge summary issued
by the MIOT Hospital, the appellant was aged 50 years at the time of
accident. The Tribunal erred in fixing age of the appellant as 55 years as per
Ex,P2/Accident Register copy. The Tribunal has not awarded any
compensation towards future medical expenses. The amounts awarded by the
Tribunal under different heads are meagre and prayed for enhancement of
compensation.
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C.M.A.No.3476 of 2019
6.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that the appellant failed to prove
the avocation and income. In the absence of material evidence with regard to
avocation and income, the Tribunal fixed a sum of Rs.5,000/- per month as
notional income of the appellant, which is not meagre. The amounts awarded
by the Tribunal under different heads are 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 and
perused the entire materials on record.
9.From the materials on record, it is seen that it is the contention of the
appellant that he was a wholesale merchant of vegetables and flowers and
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C.M.A.No.3476 of 2019
was earning a sum of Rs.35,000/- per month at the time of accident. The
appellant failed to substantiate the same. In the absence of any material
evidence with regard to avocation and income, the Tribunal fixed a sum of
Rs.5,000/- per month as notional income of the appellant and granted 10%
enhancement towards future prospects. The accident is of the year 2015 and
the notional income fixed by the Tribunal is meagre. Hence, a sum of
Rs.8,000/- including future prospects is fixed as notional income of the
appellant. The Tribunal fixed the disability of the appellant at 42% as
assessed by the Medical Board, fixed age of the appellant as 55 years as per
Ex.P2/Accident Register copy and applied multiplier '11', which are proper.
Thus, the compensation awarded by the Tribunal towards loss of earning
capacity is modified to Rs.4,43,520/- (Rs.8,000/- X 12 X 11 X 42/100).
9(i) The appellant has claimed a sum of Rs.2,96,613/- towards medical
expenses and marked the medical bills issued by the MIOT Hospital as Ex.P7
to prove the same. The Tribunal awarded only a sum of Rs.2,94,438/- towards
medical expenses on the ground that all the bills are not supported by medical
prescriptions. The said reason is not proper. The appellant is entitled to a sum
of Rs.2,96,613/- towards medical expenses as per Ex.P7/medical bills. The
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C.M.A.No.3476 of 2019
appellant has not produced any document to prove that he is still taking
treatment. Therefore, the appellant is not entitled to any compensation
towards future medical expenses. The amounts awarded by 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 by Amount Award
Tribunal awarded by this confirmed or
(Rs) Court enhanced or
(Rs) granted or
reduced
1. Loss of earning 3,04,920 4,43,520 Enhanced
capacity
2. Transportation 5,000 5,000 Confirmed
3. Special diet 10,000 10,000 Confirmed
4. Pain and 30,000 30,000 Confirmed
suffering
5. Loss of 20,000 20,000 Confirmed
amenities
6. Loss of income 15,000 15,000 Confirmed
during treatment
period
7. Medical bills 2,94,438 2,96,613 Enhanced
Ex.P7
Total 6,79,358 8,20,133 Enhanced by
Rs.1,40,775/-
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C.M.A.No.3476 of 2019
10.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.6,79,358/- is hereby
enhanced to Rs.8,20,133/- 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, less the amount
already deposited, if any, within a period of six weeks from the date of receipt
of a copy of this judgment at the first instance and recover the same from the
1st respondent. 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.
21.01.2021
Index : Yes / No
Internet : Yes/ No
kj
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3476 of 2019
V.M.VELUMANI, J.,
kj
To
1.The II Additional Subordinate Judge
Motor Accident Claims Tribunal
Cuddalore.
2.The Section Officer
V.R.Section
High Court, Chennai.
C.M.A.No.3476 of 2019
21.01.2021
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