Madras High Court
N.Rajan vs M.V.Sivaraj Karthikeyan on 25 January, 2021
C.M.A. No.308 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
C.M.A.No.308 of 2011
N.Rajan
S/o.Paulraj .. Appellant
Vs.
1.M.V.Sivaraj Karthikeyan
S/o.M.S.Venkiatachalam
2.United India Insurance Company Ltd.,
No.5, Big Bazaar Street,
Dharapuram,
Erode District - 638656 .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
04.06.2010, made in M.C.O.P. No.182 of 2009, on the file of the Motor
Accident Claims Tribunal-cum-Principal Sub Court, Coimbatore
For Appellant : Mr. Mr.S.Kaithamalai Kumaran
For Respondents : Mrs.I. Malar – R2
No Appearance - R1
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C.M.A. No.308 of 2011
JUDGMENT
The matter is heard through "Video Conferencing".
This appeal has been filed for enhancement of the compensation
granted by the Tribunal in award dated 04.06.2010, made in M.C.O.P.
No.182 of 2009, on the file of the Motor Accident Claims Tribunal-cum-
Principal Sub Court, Coimbatore.
2.The appellant herein is the claimant initially filed M.C.O.P.
No.182 of 2009, on the file of the Principal Sub Court, Coimbatore,
claiming a sum of Rs.5,00,000/- as compensation for the injuries
sustained by him in the accident that took place on 01.11.2008 at
about 10.30 p.m.
3. According to the claimant/appellant herein, on 01.11.2008 at
about 10.30 p.m while he was riding the motorcycle bearing Reg.No.
TN-38-Y-7588 with one Krishnakumar as pillion rider towards north on
the left side of the Kovai – Kalaipatti road,near Thanba @ Manikaraj
Kadu, at the time the driver of the lorry TN-27-7009 drove the same
towards south with high speed without light in a rash and negligent
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C.M.A. No.308 of 2011
manner and dashed on the motorcycle. Due to the accident, the
claimant and the pillion rider were fell down from the motorcycle and
sustained grievous injuries. The appellant /claimant sustained grievous
injuries with fracture on his right hand, right wrist, fracture and nerve
cut in right leg and injuries on his forehead. Hence, he filed claim
petition, claiming compensation for a sum of Rs.5,00,000/-.
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 Lorry bearing Reg.No. TN-27-7009 belonging
to the 1st respondent and directed the 2nd respondent who is the insurer
of the offending vehicle to pay a sum of Rs.1,80,500/- along with
interest @ 7.5% per annum as compensation to the appellant.
5.Not being satisfied with the amounts awarded by the Tribunal in
the award dated 04.06.2010, made in M.C.O.P. No.182 of 2009, the
claimant has come out with the present appeal.
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C.M.A. No.308 of 2011
6.The learned counsel appearing for the appellant contended that
at the time of accident, the claimant was 30 years old, hale and healthy.
He was a Gym Master, running Gymnasium in the name of Samsan
Power Gym at Periyanaickenpalayam and was earning not less than a
sum of Rs.15,000/- per month. Due to the injuries and fractures, he
was fully thrown out of his previous employment and unable to do any
work. The claimant is the only breadwinner of his family, without his
income, his family is suffering from heavy financial crisis.
7. The learned counsel for the appellant further submitted that the
tribunal without considering the above aspects, awarded only a sum of
Rs.1,80,500/- as compensation against the claim of Rs.5,00,000/- which
is erroneous. Further the tribunal has erroneously fixed the disability at
30% and awarded a meagre amount of Rs.30,000/-toward disability,
without considering the disability certificate issued by PW2 at 39.7%. In
any event, the amounts awarded by the Tribunal under different heads,
without considering the age and occupation of the injured claimant are
meagre and prayed for enhancement of the compensation.
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C.M.A. No.308 of 2011
8. On the other hand, the learned counsel appearing for the 2 nd
respondent-Insurance Company submitted that the doctor/PW2 who was
examined before the tribunal, had not treated the claimant for the
injuries. Hence, the tribunal has fixed the disability at 30% and
awarded amount. Therefore, the compensation under the said head
does not require any enhancement. It is further contended by the
learned counsel that the total compensation granted by the Tribunal
under different heads is excessive. The appellant has not made out any
case and is not entitled for any enhancement of compensation and
prayed for dismissal of the appeal.
8.Heard learned counsel appearing for the appellant as well as the
2nd respondent-Insurance Company and perused the materials available
on record.
9.From the materials on record, it is seen that it is the main
contention of the appellant is with regard to the percentage of partial
permanent disability fixed by the tribunal. A perusal of Ex.P2 &
P3/Discharge Summaries issued by the KMCH Hospital, Coimbatore
would reveal that the claimant had undergone two surgeries for the
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C.M.A. No.308 of 2011
bone fracture and taken treatment as inpatient from 02.11.2008 to
06.11.2008 and from 19.12.2008 to 24.12.2008. PW2/
Dr.Senthilkumar in his evidence deposed that the claimant's right leg
height is less than the height of the left foot by 1 cm and the thickness
of the right arm is less than thickness of the left arm by 1 c.m . Further
the claimant due to the surgery he find difficult to walk, to use the
staircase and to sit on the floor. Considering the above disability and
the genuineness of the Wound Certificate and Medical Prescriptions
issued by the KMCH Hospital, Coimbatore, he assessed the partial
permanent disability at 39.7 %. The tribunal observing the fact the said
doctor had not treated the injured claimant, reduced the percentage of
disability to 30%. The learned counsel for the Insurance company had
also strongly objected the disability assessed by the doctor/PW2 before
the tribunal and before this Court. But they have not produced any
documents to disprove the statement made by PW2. Hence this Court,
by considering the injuries and surgeries undergone by the claimant, is
inclined to increase the disability and accordingly, the same is increased
to 39%. Without changing the sum awarded by the tribunal per
percentage (i.e Rs.1000/-), this Court enhances the sum awarded under
the head 'Partial Permanent Disability' to Rs.39,000/- (39 x 1000). Like
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C.M.A. No.308 of 2011
wise the sum awarded under the head Transport expenses and Extra
Nourishment is also enhanced.
10. The sum awarded by the tribunal under the head 'Medical
Expenses' is very much proved by Ex.P4, hence the same is confirmed.
Though, the claimant claimed Rs.15,000/- per month towards earning,
the tribunal by considering the age of the injured claimant has fixed
Rs.5000/-per month and awarded loss of income for 6 months at
Rs.30,000/-. The said amount is reasonable and the same is confirmed.
It is seen from the award that the tribunal has not granted any amount
for pain and suffering , attendent charges and loss of amenity, hence
this Court is inclined to award some amount, accordingly a sum of
Rs.10,000/-, Rs.20,000.- and Rs.10,000/- is granted respectively under
the said heads.
11. Thus, the compensation awarded by the Tribunal is modified
as follows:
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C.M.A. No.308 of 2011
S. No Description Amount Amount Award
awarded by awarded by confirmed
Tribunal this Court or
(Rs) (Rs) enhanced
or granted
1. Partial Permanent 30,000 39,000 9,000
Disability
(39x1000)
2. Transport 1,500 5000 3,500
Expenses
3. Extra Nourishment 3,000 5,000 2,000
4. Loss of Income 30,000 30,000 ...
during treatment
period
5. Shock and Mental 10,000 10,000 --
Agony
6. Medial Expenses 1,06,000 1,06,000 --
7. Pain and Suffering .. 10,000 10,000
8. Attendant Charges ... 20,000 20,000
9 Loss of Amenity .. 10,000 10,000
Total 1,80,500/- 2,35,000/- Enhanced
by
Rs.54500/
-
12.In the result, the appeal is allowed and the amount awarded by
the Tribunal at Rs.1,80,500/- is enhanced to Rs.2,35,000/- 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
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C.M.A. No.308 of 2011
to deposit the enhanced award amount, now determined by this Court,
along with interest and costs, less the amount already deposited, 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.182 of 2009. On such deposit,
the appellant is permitted to withdraw the enhanced 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. The appellant is directed to pay the
court fee, if any, on the enhanced amount of Rs.54,500/-. No costs.
25.01.2021
Index : Yes / No
Internet : Yes
ak
To
1.The Principal Sub Court,
(Motor Accident Claims Tribunal)
Coimbatore
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.308 of 2011
D.KRISHNAKUMAR, J.
ak
C.M.A.No.308 of 2011
25.01.2021
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