Madras High Court
Deivanayaki vs The Managing Director on 22 January, 2021
C.M.A.No.3706 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3706 of 2019
Deivanayaki .. Appellant
Vs.
The Managing Director,
Metropolitan Transport Corporation Limited,
Pallavan Hosue, Anna Salai,
Chennai – 600 002. .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
05.03.2018 made in M.C.O.P.No.4308 of 2014 on the file of the Motor
Accident Claims Tribunal, II Small Causes Court, Chennai.
For Appellant : Ms.A.Subadra
for Ms.M.Malar
For Respondent : Mr.K.Moorthy
JUDGMENT
The matter is heard through “Video Conferencing”.
2.This Civil Miscellaneous Appeal has been filed for enhancement of
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C.M.A.No.3706 of 2019
compensation granted by the award dated 05.03.2018 made in
M.C.O.P.No.4308 of 2014 on the file of the Motor Accident Claims Tribunal,
II Small Causes Court, Chennai.
3.The appellant is the claimant in M.C.O.P.No.4308 of 2014 on the file
of the Motor Accident Claims Tribunal, II Small Causes Court, Chennai. She
filed the above 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 25.04.2014.
4.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 bus belonging to the respondent and directed the respondent-
Transport Corporation to pay a sum of Rs.1,97,900/- as compensation to the
appellant.
5.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
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C.M.A.No.3706 of 2019
6.The learned counsel appearing for the appellant contended that in the
accident the appellant suffered fracture of both bone leg with degloving
injury left foot and other multiple grievous injuries all over the body.
P.W.2/Doctor examined the appellant and certified that appellant suffered
45% disability and issued Ex.P8/disability certificate to that effect. The
Tribunal without giving any valid reason, reduced the percentage of disability
to 30% and awarded compensation only for 30% of disability at the rate of
Rs.3,000/- per percentage of disability. The Tribunal ought to have awarded
compensation for 45% disability. The appellant was a Flower Vendor and
was earning a sum of Rs.350/- per day. But the Tribunal fixed a meagre sum
of Rs.6,500/- per month as notional income of the appellant and awarded
compensation towards loss of income only for three months. The appellant
has taken treatment at Rajiv Gandhi Government General Hospital as
inpatient for 22 days from 25.04.2014 to 16.05.2014. The Tribunal has not
awarded any amount towards loss of earning capacity, mental agony, future
prospects, marital aspects and loss of expectation of life. The amounts
awarded by the Tribunal towards disability, pain and sufferings, extra
nourishment, transportation, attendant charges, medical expenses and future
medical expenses are meagre and prayed for enhancement of compensation.
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C.M.A.No.3706 of 2019
7.Per contra, the learned counsel appearing for the respondent-
Transport Corporation contended that the Tribunal reduced the percentage of
disability from 45% to 30% on the ground that P.W.2/Doctor has not filed
any worksheet and guidelines for assessing the disability. Hence, the
appellant is not entitled to compensation for 45% disability and a sum of
Rs.3,000/- per percentage of disability awarded by the Tribunal is excessive.
The appellant has not produced any material evidence 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.6,500/- per month as notional
income of the appellant and awarded compensation towards loss of income
for three months, which is not meagre. The appellant has not suffered any
functional disability and hence, she is not entitled to any compensation
towards loss of earning capacity. 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.
8.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondent and perused the entire materials
on record.
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C.M.A.No.3706 of 2019
9.From the materials available on record, it is seen that it is the
contention of the appellant that in the accident she suffered fracture of both
bone leg with degloving injury left foot and other multiple grievous injuries
all over the body. To prove the same, the appellant examined herself as P.W.1
and Dr.Mathiazhagan as P.W.2. P.W.2/Doctor examined the appellant and
certified that appellant suffered 45% disability and issued Ex.P8/disability
certificate to that effect. The Tribunal reduced the percentage of disability
from 45% to 30% on the ground that P.W.2/Doctor has not filed any
worksheet and guidelines for assessing the disability. The reason given by the
Tribunal for reducing the percentage of disability from 45% to 30% is not
correct. The respondent has not let in any evidence to disprove the evidence
of P.W.2/Doctor and Ex.P8/disability certificate. Therefore, the appellant is
entitled to compensation for 45% of disability. This Court by the judgment
reported in 2020 (1) TN MAC 617 [M. Chinnathambi Vs. S.Deepa and
another], fixed a sum of Rs.4,000/- per percentage of disability for the
accident occurred in the year 2014 & 2015 and a sum of Rs.5,000/- per
percentage of disability for the accident occurred from the year 2016
onwards, due to raise in cost of living. In the present case, the accident is of
the year 2014. In view of the same, a sum of Rs.4,000/- is awarded per
percentage of disability. Thus, the compensation awarded by the Tribunal
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C.M.A.No.3706 of 2019
towards disability is modified to Rs.1,80,000/- (Rs.4,000/- X 45% disability).
The appellant has not proved that she suffered functional disability and lost
her earning capacity. Hence, she is not entitled to compensation towards loss
of earning capacity.
10.It is the contention of the appellant that she was working as Flower
Vendor and was earning a sum of Rs.350/- per day. She failed to prove the
said contention. In the absence of any material evidence with regard to
avocation and income, the Tribunal fixed a sum of Rs.6,500/- per month as
notional income of the appellant and awarded compensation towards loss of
income for three months. The accident occurred in the year 2014 and the
notional income fixed by the Tribunal is meagre. A sum of Rs.10,000/- per
month is fixed as notional income of the appellant. Due to the injuries and
disability suffered by the appellant in the accident, she would not have
attended her work atleast for a period of six months. Thus, the compensation
awarded by the Tribunal towards loss of income is modified to Rs.60,000/-
(Rs.10,000/- X 6 months). The appellant has taken treatment at Rajiv Gandhi
Government General Hospital as inpatient for 22 days from 25.04.2014 to
16.05.2014. Considering the nature of injuries and period of treatment taken
by the appellant, the amounts awarded by the Tribunal towards attendant
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C.M.A.No.3706 of 2019
charges, extra nourishment and damages to clothes are meagre and the same
are enhanced to Rs.20,000/-, Rs.15,000/- and Rs.2,000/- respectively. The
amounts awarded by the Tribunal towards pain and sufferings, transportation,
medical expenses, future medical expenses and loss of amenities are just and
reasonable and hence, the same are hereby confirmed. Thus, the
compensation awarded by the Tribunal is modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Disability 90,000/- 1,80,000/- Enhanced
2. Pain and sufferings 50,000/- 50,000/- Confirmed
3. Loss of income 19,500/- 60,000/- Enhanced
4. Extra nourishment 5,000/- 15,000/- Enhanced
5. Damages to clothes 1,000/- 2,000/- Enhanced
6. Attendant charges 7,400/- 20,000/- Enhanced
7. Medical expenses 10,000/- 10,000/- Confirmed
8. Future medical 5,000/- 5,000/- Confirmed
expenses
9. Transportation 5,000/- 5,000/- Confirmed
10. Loss of amenities 5,000/- 5,000/- Confirmed
Total Rs.1,97,900/- Rs.3,52,000/- Enhanced by
Rs.1,54,100/-
11.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.1,97,900/- is hereby
enhanced to Rs.3,52,000/- together with interest at the rate of 7.5% per
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C.M.A.No.3706 of 2019
annum from the date of petition till the date of deposit. The respondent-
Transport Corporation 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 twelve weeks from the date of
receipt of a copy of this judgment, to the credit of M.C.O.P.No.4308 of 2014
on the file of the Motor Accident Claims Tribunal, II Small Causes Court,
Chennai. 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 by making necessary applications before
the Tribunal. It is made clear that the appellant is not entitled to any interest
for Rs.1,54,100/- the amount now enhanced by this Court, as per the order of
this Court dated 20.09.2019 made in C.M.P.No.17771 of 2019 in
C.M.A.No.SR.58645 of 2019. The appellant is directed to pay the necessary
Court fee as per the order of this Court dated 02.08.2019 made in
C.M.P.No.15760 of 2019 in C.M.A.No.SR.58645 of 2019. No costs.
22.01.2021
krk
Index : Yes / No
Internet : Yes / No
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C.M.A.No.3706 of 2019
To
1.The II Judge,
Motor Accident Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.3706 of 2019
V.M.VELUMANI, J.
krk
C.M.A.No.3706 of 2019
22.01.2021
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