Madras High Court
Suresh vs Mahalingam on 27 January, 2021
C.M.A.No.3713 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.3713 of 2019
Suresh .. Appellant
Vs.
1.Mahalingam
(R1 was set exparte before the Tribunal)
2.ICICI Lombard General Insurance Co. Ltd.
No.140, Chottabhai centre
2nd and 3rd floor
Nungambakkam, Chennai-600 034. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 10.08.2018
made in M.C.O.P.No.7982 of 2013 on the file of Motor Accident Claims
Tribunal, Special Sub Court No.1 dealing with MCOP cases, Small Causes
Court, Chennai.
For Appellant : Mr.Muthu Visakan K.V.
For R2 : Mr.K.Poomalai
1/9
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C.M.A.No.3713 of 2019
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 10.08.2018 made in
M.C.O.P.No.7982 of 2013 on the file of Motor Accident Claims Tribunal,
Special Sub Court No.1 dealing with MCOP cases, Small Causes Court,
Chennai.
2.The appellant is claimant in M.C.O.P.No.7982 of 2013 on the file of
Motor Accident Claims Tribunal, Special Sub Court No.1 dealing with
MCOP cases, Small Causes Court, Chennai. He filed the said claim petition
claiming a sum of Rs.40,00,000/- as compensation for the injuries sustained
by him in the accident that took place on 20.08.2013.
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 Bolero maxi truck belonging to the 1 st respondent and
directed the 2nd respondent/Insurance Company being insurer of the said
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C.M.A.No.3713 of 2019
Bolero maxi truck to pay a sum of Rs.18,92,600/- 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 shaft of femur in right leg, lost
hearing and grievous injuries all over the body. The appellant has taken
treatment as in-patient at five different spells for 218 days i.e., in Rajiv
Gandhi Government General Hospital, from 21.08.2013 to 27.11.2013,
28.02.2014 to 24.03.2014, 26.05.2015 to 10.08.2015 and then in Aysha
Hospitals Private Limited, Kilpauk, from 10.12.2015 to 18.12.2015 and then
in Sri Narayani Nursing Home, Perambur, from 27.07.2017 to 03.08.2017 and
underwent surgeries. The Medical Board after examining the appellant
certified that the appellant suffered 100% disability for total loss of hearing
and 60% disability for non-union fracture of right femur. Due to the injuries,
the appellant suffered shortening of leg and is limping. The appellant was
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C.M.A.No.3713 of 2019
aged 44 years at the time of accident and he lost his earning capacity. The
Tribunal failed to grant enhancement towards future prospects for awarding
compensation towards loss of earning capacity. The appellant was a prohithar
by profession and was earning a sum of Rs.20,000/- to Rs.25,000/- per
month. The Tribunal erroneously fixed a sum of Rs.10,000/- per month as
notional income of the appellant. The Tribunal ought to have awarded
compensation towards future medical expenses 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 did not examine
any Doctor to prove the disability. The Tribunal adopted multiplier method
and granted compensation, which is excessive. The Total compensation
awarded by the Tribunal is not meagre. The appellant has not made out any
case for enhancement of compensation and prayed for dismissal of the appeal.
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C.M.A.No.3713 of 2019
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.It is the case of the appellant that in the accident, he suffered
disfigurement, shortening of leg and loss of hearing. The Medical Board after
examining the appellant certified that the appellant suffered 100% disability
for loss of hearing, 60% disability for fracture of right femur and issued
Ex.C1/disability certificate. The appellant has taken treatment as in-patient at
five different spells for 218 days in five years i.e., in Rajiv Gandhi
Government General Hospital, from 21.08.2013 to 27.11.2013, 28.02.2014 to
24.03.2014, 26.05.2015 to 10.08.2015 and then in Aysha Hospitals Private
Limited, Kilpauk, from 10.12.2015 to 18.12.2015 and then in Sri Narayani
Nursing Home, Perambur, from 27.07.2017 to 03.08.2017. The Tribunal fixed
the disability of the appellant at 93% by applying formula. The 2nd
respondent/Insurance Company did not let in any contra evidence to the
disability certificate issued by the Medical Board. The Tribunal considering
the nature of injuries, disability and period of treatment taken by the
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C.M.A.No.3713 of 2019
appellant, adopted multiplier method to award compensation towards
pecuniary loss and the same is proper. The appellant claimed that he was a
prohithar by profession and was earning a sum of Rs.20,000/- to Rs.25,000/-
per month. The appellant has not filed any document to prove his avocation
and income. In the absence of any material evidence with regard to avocation
and income, the Tribunal fixed a sum of Rs.10,000/- per month as notional
income of the appellant. The accident is of the year 2013 and the notional
income fixed by the Tribunal is meagre. Hence, a sum of Rs.13,000/- per
month is fixed as notional income of the appellant. Thus, the compensation
awarded by the Tribunal towards pecuniary loss is modified to Rs.18,86,040/-
(Rs.13,000/- X 12 X 13 X 93/100). The amounts awarded by the Tribunal
towards transportation, extra nourishment and attendant charges are meagre.
Considering the nature of injuries, disability and period of treatment taken by
the appellant, the amounts awarded by the Tribunal towards transportation,
extra nourishment and attendant charges are hereby enhanced to Rs.30,000/-,
Rs.75,000/- and Rs.1,00,000/- respectively. The Tribunal has not awarded any
compensation towards loss of amenities. The appellant suffered shortening of
leg and is limping. Hence, a sum of Rs.50,000/- is awarded towards loss of
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C.M.A.No.3713 of 2019
amenities. The appellant has not produced any document to prove that he is
still taking treatment and therefore, he 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 awarded Award confirmed
Tribunal by this Court or enhanced or
(Rs) (Rs) granted or
reduced
1. Pecuniary loss 14,50,800 18,86,040 Enhanced
2. Pain and suffering 50,000 50,000 Confirmed
3. Transportation 10,000 30,000 Enhanced
4. Hospital and 2,47,214 2,47,214 Confirmed
medical expenses
5. Extra nourishment 30,000 75,000 Enhanced
6. Attendant charges 54,500 1,00,000 Enhanced
7. Loss of future 50,000 50,000 Confirmed
prospects and
disfigurement
8. Loss of amenities - 50,000 Granted
Total 18,92,514 24,88,254 Enhanced by
rounded off to rounded off to Rs.5,95,700/-
18,92,600 24,88,300
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C.M.A.No.3713 of 2019
9.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.18,92,600/- is hereby
enhanced to Rs.24,88,300/- 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
the appellant is not entitled for any interest for the delay period on the amount
of Rs.5,95,700/- enhanced by this Court as per the order of this Court dated
19.09.2019 made in C.M.P.No.19198 of 2019 in C.M.A.SR.No.92440 of
2019. 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. 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
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C.M.A.No.3713 of 2019
V.M.VELUMANI, J.,
kj
To
1.The Special Subordinate Judge No.1
Motor Accident Claims Tribunal
Small Causes Court, Chennai.
2.The Section Officer
V.R.Section
High Court, Chennai.
C.M.A.No.3713 of 2019
27.01.2021
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