Madras High Court
K. Gopal vs A.Prakasam on 5 January, 2021
C.M.A. No.2653 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.2653 of 2019
K. Gopal .. Appellant
Vs.
1.A.Prakasam
2.Royal Sundaram Allianz Insurance Co. Ltd.,
No.1, Club House Road,
Subramaniyam Buildings,
II Floor, Anna Salai,
Chennai 600 002. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 30.11.2018, made
in M.C.O.P. No.48 of 2013, on the file of the V Court of Small Causes,
(Motor Accident Claims Tribunal) Chennai.
For Appellant : Mr.F.Terry Chella Raja
for M/s. M.Malar
For Respondents : Mr.K.Poomalai (For R2)
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C.M.A. No.2653 of 2019
JUDGMENT
The matter is heard through "Video Conferencing".
This appeal has been filed for enhancement of the compensation
granted by the Tribunal in the award dated 30.11.2018, made in M.C.O.P.
No.48 of 2013, on the file of the V Court of Small Causes, (Motor Accident
Claims Tribunal) Chennai.
2.The appellant filed M.C.O.P. No.48 of 2013, on the file of the V
Court of Small Causes, (Motor Accident Claims Tribunal) Chennai, claiming
a sum of Rs.10,00,000/- as compensation for the injuries sustained by him in
the accident that took place on 28.07.2012.
3.According to the appellant, on the date of accident at about 19.30
hours, when he was standing in front of Narayanasamy Welding Shop at
O.M.R. Main Road, Kannagapattu, Thiruporur, Kancheepuram District, the
driver of a Lorry bearing Registration No. TN-32-T-5991, belonging to the 1st
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C.M.A. No.2653 of 2019
respondent, drove the same in a rash and negligent manner and dashed
against the appellant and caused the accident. The accident occurred due to
rash and negligent driving by the driver of the Lorry belonging to the 1 st
respondent. In the accident the appellant suffered multiple injuries and
fracture. For the injuries suffered by him, he has filed the claim petition,
claiming compensation against the respondents as owner and insurer of the
said Lorry.
4.The 1st respondent remained exparte before the Tribunal.
5.The 2nd respondent - Insurance Company filed counter statement and
denied all the averments made by the appellant. According to the 2 nd
respondent, the Lorry belonging to the 1st respondent was plied without valid
Fitness Certificate and the same expired on 03.07.2012, whereas the accident
occurred on 28.07.2012 and driver of the Lorry belonging to 1st respondent
did not possess valid driving license to drive the vehicle at the time of
accident. Hence, for violation of policy conditions, the 2nd respondent is not
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C.M.A. No.2653 of 2019
liable to indemnify the 1st respondent for the injured in the accident. The
accident did not occur due to rash and negligent driving by the driver of the
Lorry. In any event, the appellant has to prove his age, income and avocation,
injuries sustained in the accident, treatment taken for the same, to claim
compensation. The total compensation claimed by the appellant is excessive
and prayed for dismissal of the claim petition.
6.Before the Tribunal, the appellant examined himself as P.W.1,
Dr.Mathiazhagan was examined as P.W.2 and 9 documents were marked as
Exs.P1 to P9. The 2nd respondent examined their Official as R.W.1 and
marked 4 documents as Exs.R1 to R4.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by driver of the Lorry belonging to the 1st respondent and directed the
2nd respondent as insurer of the vehicle to pay a sum of Rs.8,37,500/- as
compensation to the appellant at the first instance and recover the same from
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C.M.A. No.2653 of 2019
the 1st respondent.
8.Not being satisfied with the amounts awarded by the Tribunal in the
award dated 30.11.2018, made in M.C.O.P. No.48 of 2013, the appellant has
come out with the present appeal.
9.The learned counsel appearing for the appellant contended that in the
accident, the appellant sustained injuries like fracture of C1 Anterior and
Posterior arch, fracture of scapula inferior border, fracture of lateral end
clavicle undisplaced 3rd, 4th, 5th and 6th ribs fracture hemopneumothorax,
basifrontal contusion and fraction of ulna left and other multiple injuries all
over the body. He has taken treatment as in-patient in Chettinadu Super
Speciality Hospital, Kelambakkam, Kancheepuram from 29.07.2012 to
23.08.2012 and continued his treatment as out-patient in the same Hospital.
At the time of accident, the appellant was working as a Mason and was
earning a sum of Rs.500/- per day. The Tribunal erroneously fixed a meagre
sum of Rs.10,000/- per month as notional income and granted only 10%
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C.M.A. No.2653 of 2019
enhancement towards future prospects. P.W.2 Doctor examined the appellant
and assessed that the appellant suffered 65% partial permanent disability. The
Tribunal rightly adopted multiplier method, but erroneously granted
compensation only for 40% of disability. The Tribunal failed to award any
amount towards future medical expenses, loss of income, mental agony,
disability, damages and loss of expectation of life. The amounts awarded by
the Tribunal towards pain and suffering, transportation, extra nourishment,
loss of earning, loss of amenities, attendant charges and medical expenses are
meagre and prayed for enhancement of the compensation.
10.The learned counsel appearing for the 2nd respondent-Insurance
Company made submissions in support of the award passed by the Tribunal and
prayed for dismissal of the appeal.
11.Heard learned counsel appearing for the appellant as well as the 2nd
respondent-Insurance Company and perused the materials available on record.
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C.M.A. No.2653 of 2019
12.From the materials on record, it is seen that it is the contention of the
appellant that in the accident, he suffered injuries mentioned in the claim petition
and the grounds of appeal. To prove the nature of injuries, he examined P.W.2
Doctor. P.W.2 Doctor deposed that he examined the appellant and certified that
the appellant suffered 65% disability. In the cross examination, he has stated that
he has not filed any report taking X-ray and not filed any worksheet with regard
to assessment of disability following medical guidelines. P.W.2 Doctor also
deposed that he has not assessed the disability for the whole body or loss of
earning capacity and the injuries sustained by the appellant is not a scheduled
injury. From the award of the Tribunal, it is seen that P.W.2 Doctor has admitted
in cross examination that he has not assessed the disability of appellant for
whole body and for loss of earning capacity. The Tribunal considering the
evidence of P.W.2 Doctor, did not accept 65% disability assessed by P.W.2
Doctor and reduced the percentage of disability to 40%. In the absence of any
materials with regard to loss of earning capacity, the Tribunal erroneously
adopted multiplier method for awarding compensation. The appellant is entitled
to compensation only by adopting percentage method. A sum of Rs.6,09,840/-
awarded by the Tribunal for loss of earning is excessive. The appellant is not
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C.M.A. No.2653 of 2019
entitled to compensation of Rs.6,09,840/- granted by the Tribunal for loss of
earning power. In view of the same, the appellant is not entitled to any
enhancement in the present appeal.
13.In the result, the appeal is dismissed and the amount awarded by the
Tribunal at Rs.8,37,500/- together with interest at the rate of 7.5% per annum
from the date of petition till the date of deposit is confirmed. The 2nd
respondent-Insurance Company is directed to deposit the award amount,
along with interest and costs, less the amount already deposited, 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.48 of 2013 at the first instance and recover the same
from the 1st respondent. On such deposit, the appellant is permitted to
withdraw the award amount, along with interest and costs, after adjusting the
amount, if any already withdrawn, by filing necessary applications before the
Tribunal. No costs.
05.01.2021
Index : Yes / No
gsa
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C.M.A. No.2653 of 2019
To
1.The V 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.2653 of 2019
V.M.VELUMANI, J.,
gsa
C.M.A.No.2653 of 2019
05.01.2021
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