Madras High Court
P.Gopalakrishnan vs V.Babu on 27 January, 2021
C.M.A.No.3766 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3766 of 2019
P.Gopalakrishnan .. Appellant
Vs.
1.V.Babu
(R1 remained exparte before the
Tribunal)
2.The United India Insurance Company Ltd.
Motor III partly claims office
No.38, Anna salai
Chennai-2. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 31.01.2007
made in M.C.O.P.No.249 of 2005 on the file of Motor Accident Claims
Tribunal, Additional District and Sessions Court, (Fast Track Court No.IV),
Poonamallee.
1/10
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C.M.A.No.3766 of 2019
For Appellant : Mrs.Y.Jayanthi Bhaskar
for Mr.J.Mahalingam
For R2 : Mr.J.Chandran
JUDGMENT
This matter is heard through “Video-Conferencing”.
The Civil Miscellaneous Appeal is filed for enhancement of
compensation granted by the Tribunal in the award dated 31.01.2007 made in
M.C.O.P.No.249 of 2005 on the file of Motor Accident Claims Tribunal,
Additional District and Sessions Court, (Fast Track Court No.IV),
Poonamallee.
2.The appellant is claimant in M.C.O.P.No.249 of 2005 on the file of
Motor Accident Claims Tribunal, Additional District and Sessions Court,
(Fast Track Court No.IV), Poonamallee. He filed the said claim petition
claiming a sum of Rs.7,00,000/- as compensation for the injuries sustained by
him in the accident that took place on 28.11.2004.
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C.M.A.No.3766 of 2019
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent riding by
the 1st respondent, the rider-cum-owner of the motorcycle and directed both
the 1st respondent as well as the 2nd respondent/Insurance Company being
insurer of the said motorcycle to jointly and severally pay a sum of
Rs.1,15,000/- as compensation to the appellant.
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 in the
accident, the appellant suffered fracture of right trocanter in femur, plate was
fixed and movements of hip are reduced by 30 degrees. The appellant
examined the Doctor as P.W.2 and marked the disability certificate as Ex.P6
and x-ray as Ex.P7 to prove the nature of injuries. P.W.2/Doctor after
examining the appellant certified that the appellant suffered 45% disability.
The Tribunal without assigning any reason reduced the disability to 40%.
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C.M.A.No.3766 of 2019
After the accident, the appellant could not do the work as he was doing
earlier. The appellant has lost his earning capacity. The Tribunal ought to
have adopted multiplier method to award compensation for future loss of
earning capacity. The appellant was working as a lorry driver in Chandra
Transports and was earning a sum of Rs.8,000/- per month. The appellant
examined the proprietor of the said transport as P.W.3 and marked the salary
certificate as Ex.P8. The Tribunal without considering the same, fixed only a
meagre sum of Rs.5,000/- as monthly income of the appellant. The appellant
has taken treatment in Government Royapettah Hospital, from 28.11.2004 to
11.12.2004 and continued his treatment as out-patient. The Tribunal has not
awarded any compensation towards attendant charges and loss of amenities.
The amounts awarded by the Tribunal under different heads are meagre and
prayed for enhancement of compensation.
6.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that the appellant has not proved
that he suffered functional disability and lost his earning capacity. Therefore,
he is not entitled to compensation by adopting multiplier method. The
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C.M.A.No.3766 of 2019
Tribunal after considering the materials available on record in proper
perspective, has awarded compensation under different heads, which are not
meagre. The appellant has not made out any case for enhancement of
compensation and prayed for dismissal of the appeal.
7.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.
8.From the materials on record, it is seen that it is the contention of the
appellant that in the accident, he suffered fracture of right trocanter in femur,
plate was fixed and movements of hip are reduced by 30 degrees. The
appellant examined the Doctor as P.W.2 and marked the disability certificate
as Ex.P6 and x-ray as Ex.P7 to prove the nature of injuries. P.W.2/Doctor
after examining the appellant certified that the appellant suffered 45%
disability. The Tribunal reduced the disability to 40% and awarded a sum of
Rs.1,000/- per percentage of disability. The Tribunal has not given any
reason for reducing the percentage of disability. Considering the materials
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C.M.A.No.3766 of 2019
available on record, this Court is of the view that the appellant is entitled to
compensation for 45% disability. The appellant has not proved that he
suffered functional disability and lost his earning capacity. Therefore, the
appellant is not entitled to any compensation towards disability by adopting
multiplier method. The accident is of the year 2004. The appellant is entitled
to Rs.1,500/- per percentage. Thus the compensation awarded by the Tribunal
towards disability is modified to Rs.67,500/- (Rs.1,500/- X 45%) by awarding
Rs.1,500/- per percentage of disability.
8(i)The appellant has contended that he has taken treatment in
Government Royapettah Hospital, from 28.11.2004 to 11.12.2004 and
continued his treatment as out-patient. He has marked the discharge summary
as Ex.P2 to prove the same. The Tribunal has not awarded any compensation
towards attendant charges, loss of amenities and damage to clothes.
Considering the nature of injuries and period of treatment taken by the
appellant, a sum of Rs.5,000/-, Rs.10,000/- and Rs.1,000/- are awarded
towards attendant charges, loss of amenities and damage to clothes
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C.M.A.No.3766 of 2019
respectively. A sum of Rs.1,000/- awarded by the Tribunal towards extra
nourishment is meagre and hence, the same is hereby enhanced to Rs.5,000/-.
8(ii) It is the contention of the appellant that he was working as a lorry
driver in Chandra Transports and was earning a sum of Rs.8,000/- per month.
The appellant examined the proprietor of the said transport as P.W.3 and
marked the salary certificate as Ex.P8. The Tribunal fixed a sum of Rs.5,000/-
as monthly income of the appellant on the ground that full weightage cannot
be given to the salary certificate and awarded a sum of Rs.40,000/- towards
loss of income for eight months. The same is not correct. The 2 nd respondent
did not let in any evidence contra to the evidence of P.W.3 and Ex.P8/salary
certificate. In view of the same, a sum of Rs.8,000/- is fixed as notional
income of the appellant as claimed by him. Thus, the compensation awarded
by the Tribunal towards loss of income is modified to Rs.64,000/- (Rs.8,000/-
X 8). 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:
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C.M.A.No.3766 of 2019
S.No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court enhanced or
(Rs) granted or
reduced
1. Pain and 30,000 30,000 Confirmed
suffering
2. Disability 40,000 67,500 Enhanced
3. Loss of income 40,000 64,000 Enhanced
4. Medical 3,000 3,000 Confirmed
expenses
5. Transportation 1,000 1,000 Confirmed
6. Extra 1,000 5,000 Enhanced
nourishment
7. Attendant - 5,000 Granted
charges
8. Loss of - 10,000 Granted
amenities
9. Damage to - 1,000 Granted
clothes
Total 1,15,000 1,86,500 Enhanced by
Rs.71,500/-
9.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.1,15,000/- is hereby
enhanced to Rs.1,86,500/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit. It is made clear that
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C.M.A.No.3766 of 2019
the appellant is not entitled for any interest for the delay period on the amount
of Rs.71,500/- enhanced by this Court as per the order of this Court dated
16.09.2019 made in M.P.No.1 of 2012 in C.M.A.SR.No.63358 of 2012. The
respondents are jointly and severally 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. 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.
27.01.2021
Index : Yes / No
Internet : Yes/ No
kj
To
1.The Additional District and Sessions Judge
Motor Accident Claims Tribunal
(Fast Track Court No.IV), Poonamallee.
2.The Section Officer
V.R.Section, High Court, Chennai.
V.M.VELUMANI,J.
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C.M.A.No.3766 of 2019
Kj
C.M.A.No.3766 of 2019
27.01.2021
https://www.mhc.tn.gov.in/judis/
