Madras High Court
P.Sakunthala vs K.Muthu on 21 January, 2021
C.M.A.No.3748 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
Civil Miscellaneous Appeal No.3748 of 2011
P.Sakunthala ... Appellant/Claimant
..Vs..
1. K.Muthu
2. The New India Assurance Co. Ltd.,
No.46, Moore Street, V Floor,
Chennai – 600 001. ... Respondents/Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the Judgement and decree dated 17.02.2011 made in
MACT.OP.No.2598 of 2006 on the file of VI Small Causes Court (Motor
Accidents Claims Tribunal) Chennai.
For Appellant : Mr.N.M.Muthurajan
For Respondent No.1 : Mr.S.Dhakshnamoorthy
For Respondent No.2 : Mr.T.A.Srinivasan for
M/s.Sree Associates
*****
1/8
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C.M.A.No.3748 of 2011
JUDGMENT
Dissatisfied with the judgment and decree passed by the
tribunal awarding compensation of Rs.91,400/- along with interest at the
rate of 7.5% per annum, the claimant is before this Court for enhancement
of compensation.
2. It is is the case of the claimant/appellant herein that on
3.7.2006 at 22.00 hours when the claimant was walking opposite to F-Block,
Sathyamoorthy Nagar from North to South direction, an Autorikshaw bearing
registration No.TN-07-AY-3421 came from East to West direction in a rash
and negligent manner and hit the claimant, thereby she sustained fracture
of right tibia and fibula. The first respondent being the owner of the
vehicle, and the second respondent being the insurer of the vehicle are
liable to pay Rs.4,00,000/-as total compensation to the claimant.
3 The first respondent remained exparte.
4. The Tribunal, based on the oral and documentary evidence
Exs.P1 to P.8, has awarded a sum of Rs.91,400/- as total compensation
payable by the Insurance Company to the claimant under the following
heads:
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C.M.A.No.3748 of 2011
Heads Amount in Rs.
Loss of Income for two months 6,000/-
at Rs.3000/- per month
Transportation 3,000/-
Extra nourishment 5,000/-
Damage to clothes 1,000/-
Medical expenses 1,392/-
Attender charges 5,000/-
Pain and Suffering 25,000/-
Disability of 25% @ Rs.2000 50,000/-
per percentage
Total 91,392/-
Rounded of 91,400/-
5. Heard the learned counsel appearing for the appellant/
claimant and the learned counsel appearing for the first respondent and
the learned counsel appearing for the Insurance Company and perused the
materials available on record.
6. According to the learned counsel appearing for the
appellant, P.W.2 Dr.K.J.Mathiazhagan, who assessed the disability deposed
before the Court that the claimant was suffered 30% disability on account of
the accident she met with, whereas the tribunal has fixed the disability at
25% for the reason that the appellant was not treated by P.W.2. Since the
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C.M.A.No.3748 of 2011
disability assessed by P.W.2 is not excessive, the reason assigned by the
tribunal is incorrect. The claimant has taken native treatment at Puthur for
the fracture of proximal tibia and neck of fibula and also private treatment
with Dr.Sumathi Joseph and therefore, the disability of 30% as assessed by
P.W.2 can be taken to arrive just compensation. Further, according to the
learned counsel appearing for the appellant, the claimant was jobless for a
period of six months and the claimant was earning Rs.3500/- p.m., the
tribunal has fixed the monthly income of the claimant at Rs.3000/- per
month and awarded a sum of Rs.6000/- towards loss of income for a period
of two months and therefore, the compensation awarded by the tribunal for
a period of two months is not sufficient and the same has to be enhanced.
The tribunal has awarded a meagre amount of Rs.3000/- towards
transportation and no amount was awarded for loss amenities. Therefore,
the compensation awarded by the tribunal requires substantial
enhancement.
7. Per contra, the learned counsel appearing for the Insurance
Company submitted that the appellant/claimant has not produced medical
bills towards expenses incurred by her and therefore, the tribunal has
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C.M.A.No.3748 of 2011
rightly fixed the disability at 25% as partial permanent disability and
awarded a sum of Rs.50,000/-. In so far as other heads also, the tribunal
has rightly fixed the compensation and therefore, there is no warrant to
interfere with the award passed by the tribunal.
8. The claimant was met with an accident due to rash and
negligent driving of the driver resulting in she sustained fracture in right
tibia and fibula and her right knee movement is restricted and therefore,
she filed a claim petition before the tribunal for a sum of Rs.4,00,000/-.
P.W.1 and 2 were examined and Ex.P1 to P8 were marked. On the
respondent side, no witness nor any exhibits were marked by the second
respondent/ Insurance company. P.W.2 Dr.Mathiyazhagan deposed before
the Court that he assessed disability of the claimant at 30% for the fracture
sustained by her. Whereas the tribunal has fixed 25% as partial permanent
disability which is not correct. This Court accepted the disability of 30% as
fixed by the Doctor, P.W.2 and fixed the compensation of Rs.60,000/-
towards disability. In sofar as the Transportation, it would be reasonable to
fix Rs.5000/-. For the loss of income, this Court is inclined to extend the
loss of income for a period of four months instead of two months as fixed by
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C.M.A.No.3748 of 2011
the tribunal. i.e. 3000 x 4 = Rs.12,000/-. Accordingly, the compensation
fixed by the tribunal is enhanced and awarded as follows:
Heads Compensation Compensation Difference
fixed by the enhanced Amount
Tribunal /awarded by this in Rs.
Rs. Court (Rs.)
Disability 50,000/- 60,000/- 10,000/-
Loss of Income 6,000/- 12,000/- 6,000/-
Transportation 3,000/- 5,000/- 2,000/-
Extra Nourishment 5,000/- 5,000/- --
Damage to clothes 1,000/- 1,000/- --
Medical expenses 1,392/- 1,392/- --
Attender charges 5,000/- 5,000/- --
Pain & suffering 20,000/- 20,000/- --
Loss of amenities -- 5,000/- 5,000/-
Total 91,392/- 1,14,392/- 23,000/-
Except the above modification, the award passed by the tribunal is
confirmed.
9 According to the learned counsel for the appellant, the
second respondent/Insurance company has paid the entire award amount of
compensation along with interest at the rate of 7.5% p.a. from the date of
petition till realisation. Therefore, the second respondent/Insurance
company is directed to deposit the difference amount of Rs.23,000/-
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C.M.A.No.3748 of 2011
(Rupees twenty three thousand only) along with interest at the rate of 7.5%
p.a. from the date of petition till realization before the tribunal within a
period of four weeks from the date of receipt of copy of the order. On such
deposit being made by the respondent company, the appellant/claimant is
permitted to withdraw the amount by filing appropriate application.
10. In the result, the Civil Miscellaneous Appeal is partly
allowed to the aforesaid extent. No costs.
21.01.2021
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
vaan
To
1. The VI Small Causes Court (Motor Accidents Claims Tribunal) Chennai.
2. The New India Assurance Co. Ltd., No.46, Moore Street, V Floor,
Chennai – 600 001.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3748 of 2011
D.KRISHNAKUMAR, J.
vaan
Civil Miscellaneous Appeal No.3748 of 2011
21.01.2021
https://www.mhc.tn.gov.in/judis/
