Madras High Court
Muniyammal vs Vivek on 5 January, 2021
C.M.A. No.2909 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.2909 of 2019
Muniyammal .. Appellant
Vs.
1.Vivek
(R1 remained exparte before the Tribunal)
2.ICICI Lombard General Insurance Co. Ltd.,
No.84/85, Waltax Road,
Chepauk,
Chennai 600 003. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 13.03.2019, made
in M.C.O.P. No.2820 of 2017, on the file of the III Court of Small Causes,
(Motor Accident Claims Tribunal) Chennai.
For Appellant : Mrs.A.Subadra
for M/s. M.Malar
For Respondents : Mr. K.Poomalai (For R2)
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C.M.A. No.2909 of 2019
JUDGMENT
The matter is heard through "Video Conferencing".
This appeal has been filed for enhancement of compensation granted
by the award dated 13.03.2019, made in M.C.O.P. No.2820 of 2017, on the
file of the III Court of Small Causes, (Motor Accident Claims Tribunal)
Chennai.
2.The appellant-claimant filed M.C.O.P. No.2820 of 2017, on the file
of the III Court of Small Causes, (Motor Accident Claims Tribunal) Chennai,
claiming a sum of Rs.35,00,000/- as compensation for the injuries sustained
by her in the accident that took place on 14.05.2017.
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent riding by
1st respondent, rider-cum-owner of the Motorcycle and directed the 2nd
respondent, as insurer of the offending vehicle, to pay a sum of Rs.79,700/- as
compensation to the appellant.
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C.M.A. No.2909 of 2019
4.Not being satisfied with the amounts awarded by the Tribunal in the
award dated 13.03.2019, made in M.C.O.P. No.2820 of 2017, the appellant
has come out with the present appeal.
5.The learned counsel appearing for the appellant contended that in the
accident, the appellant suffered injuries like fracture of right forearm with
wrist at distal radius, injury over the right great toe, swelling and deformity
over the right wrist and other multiple grievous injuries all over the body. She
has taken treatment as in-patient at Excellent care Hospital, Chennai and
continued her outpatient treatment at Murugan Hospital, Kilpauk, Chennai.
The appellant examined P.W.2 Doctor who assessed that the appellant
suffered 25% disability. The Tribunal without assigning any reasons, reduced
the same to 15% and failed to adopt multiplier method. The Tribunal also
failed to award any amount towards mental agony and loss of expectation of
life. The amounts awarded by the Tribunal towards medical expenses, loss of
income, pain and sufferings, transportation, extra nourishment, future medical
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C.M.A. No.2909 of 2019
expenses, damages, loss of amenities, attendant charges and disability are
meagre and prayed for enhancement of the compensation.
6.Per contra, the learned counsel appearing for the 2nd respondent-
Insurance Company contended that the Tribunal considering the nature of
injuries and in the absence of any worksheet and guidelines to substantiate the
assessment of P.W.2 Doctor, rightly reduced the percentage of disability to 15%
and awarded compensation, which is in order. In the absence of any material
evidence to prove the avocation and income, the Tribunal rightly fixed monthly
income of the appellant at Rs.6,500/- and awarded compensation under different
heads which are not meagre. The appellant has not made out any case for
enhancement of the compensation and prayed for dismissal of the appeal.
7.Heard learned counsel appearing for the appellant as well as the 2nd
respondent-Insurance Company and perused the materials available on record.
8.From the materials on record, it is seen that it is the contention of the
appellant that in the accident she suffered multiple and grievous injuries all over
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C.M.A. No.2909 of 2019
the body. P.W.2 Doctor has examined the appellant and certified that the
appellant suffered 25% disability. To prove the same, the appellant has marked
O.P. Chit and disability certificate as Exs.P4 and P13 respectively. The Tribunal
reduced the percentage of disability to 15% on the ground that the appellant has
not underwent any surgery and granted a sum of Rs.45,000/- towards disability
at the rate of Rs.3,000/- per percentage. The reason given by the Tribunal for
reducing the percentage of disability is not correct. The 2nd respondent-Insurance
Company has not let in any evidence to disprove the evidence of P.W.2 Doctor
and Ex.P13- disability certificate. Hence, the appellant is entitled to
compensation for 25% disability, as assessed by P.W.2 Doctor. This Court by
judgment dated 09.01.2020 made in C.M.A.No.4870 of 2019 in the case of
M/s. IFFCO TOKIO General Insurance Company Limited Vs. Venkatesh
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 2017. In view of the same, a sum of Rs.5,000/- is awarded per
percentage of disability. Hence, the amount awarded by the Tribunal towards
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C.M.A. No.2909 of 2019
disability is enhanced to Rs.1,25,000/- [Rs.5,000/- x 25%], at the rate of
Rs.5,000/- per percentage for 25% disability.
9.It is the contention of the appellant that at the time of accident, she
was working as a Cook and was earning a sum of Rs.20,000/- per month. She
failed to prove the same. In the absence of any material evidence with regard to
avocation and income, the Tribunal fixed a meagre sum of Rs.6,500/- per month
as notional income. The accident is of the year 2017. Considering the year of
accident and the nature of work done by the appellant, a sum of Rs.10,000/- per
month is fixed as notional income. Due to the accident, the appellant would not
have worked atleast for a period of two months. Thus, the compensation
granted by the Tribunal towards loss of income is modified to Rs.20,000/-.
The amount awarded by the Tribunal under 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 Amount Award
by Tribunal awarded by this confirmed or
(Rs) Court (Rs) enhanced or
granted
1. Disability 45,000/- 1,25,000/- Enhanced
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C.M.A. No.2909 of 2019
2. Pain and suffering 10,000/- 10,000/- Confirmed
3. Extra nourishment 2,500/- 2,500/- Confirmed
4. Transportation 2,500/- 2,500/- Confirmed
5. Damages to clothes 500/- 500/- Confirmed
6. Attendant charges 200/- 200/- Confirmed
7. Medical expenses 5,000/- 5,000/- Confirmed
8. Future medical expenses 2,500/- 2,500/- Confirmed
9. Loss of income 6,500/- 20,000/- Enhanced
10. Loss of amenities 5,000/- 5,000/- Confirmed
Total 79,700/- 1,73,200/- Enhanced by
Rs.93,500/-
10.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.79,700/- is enhanced to Rs.1,73,200/- 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 to deposit the
award amount, now determined by this Court, along with interest and costs,
within a period of six weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P. No.2820 of 2017. On such deposit, the
appellant is permitted to withdraw the 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
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C.M.A. No.2909 of 2019
appellant is directed to pay the necessary court fee on the enhanced award
amount. No costs.
05.01.2021
gsa
To
1.The III Judge,
Court of Small Causes,
(Motor Accident Claims Tribunal),
Chennai.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.2909 of 2019
V.M.VELUMANI, J.,
gsa
C.M.A.No.2909 of 2019
05.01.2021
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