Madras High Court
Kannan vs Bala @ Balamurugan on 6 January, 2021
C.M.A.No.1972 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1972 of 2020
Kannan .. Appellant
Vs.
1.Bala @ Balamurugan
2.Gunasekaran
3.The Branch Manager,
The New India Assurance Company Limited,
Karaikal,
Having Office at 1st Floor,
MAJ Appartments, No.149, Bharathiar Road,
Karaikal town and District Munsif. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
23.03.2020 made in M.C.O.P.No.166 of 2014 on the file of the Motor
Accident Claims Tribunal, District Court, Karaikal.
For Appellant : Mr.K.Varadhakamaraj
For R3 : Mr.J.Chandran
JUDGMENT
The matter is heard through “Video Conferencing”.
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C.M.A.No.1972 of 2020
2.With the consent of both the parties, this appeal is taken up for final
hearing at the admission stage itself.
3.This Civil Miscellaneous Appeal has been filed for enhancement of
compensation granted by the award dated 23.03.2020 made in
M.C.O.P.No.166 of 2014 on the file of the Motor Accident Claims Tribunal,
District Court, Karaikal.
4.The appellant is the claimant in M.C.O.P.No.166 of 2014 on the file
of the Motor Accident Claims Tribunal, District Court, Karaikal. He filed the
above said claim petition, claiming a sum of Rs.75,00,000/- as compensation
for the injuries sustained by him in the accident that took place on
18.03.2014.
5.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
riding by the rider of the motorcycle belonging to the 2nd respondent and
directed the 3rd respondent, insurer of the motorcycle to pay a sum of
Rs.9,35,267/- as compensation to the appellant.
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C.M.A.No.1972 of 2020
6.Not being satisfied with the amounts awarded by the Tribunal, the
appellant has come out with the present appeal seeking enhancement of
compensation.
7.The learned counsel appearing for the appellant contended that at the
time of accident, the appellant was aged 45 years was running A/C Service
Center and doing 2nd Sales Business in the name and style of 'M/s. Haran
Cool Service' and was earning a sum of Rs.1,000/- per day. In the accident,
the appellant suffered multiple injuries and fracture. The Medical Board
examined the appellant and certified that appellant suffered 54% disability.
The Tribunal erroneously reduced the percentage of disability to 50% and
fixed only 50% as functional disability. The Tribunal ought to have fixed that
appellant suffered 100% loss of earning capacity and ought to have granted
compensation separately for disability and loss of earning power. The
Tribunal erroneously fixed meagre amount of Rs.15,000/- as monthly income
of the appellant and deducted 50% towards personal expenses. The amounts
awarded by the Tribunal towards attendant charges, transportation, extra
nourishment and loss of income are meagre and prayed for enhancement of
compensation.
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C.M.A.No.1972 of 2020
8.Mr.J.Chandran, learned counsel takes notice for the 3rd respondent-
Insurance Company and contended that the appellant has not proved that he
suffered functional disability and lost his earning capacity. In the absence of
any document with regard to functional disability, the Tribunal erroneously
adopted multiplier method and granted compensation towards disability and
the same is excessive. The Tribunal considering the entire materials on
record, has awarded a sum of Rs.9,35,267/- as compensation to the appellant,
which is highly excessive and the appellant has not made out any case for
enhancement of compensation and prayed for dismissal of the appeal.
9.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 3rd respondent-Insurance Company and
perused the entire materials on record.
10.From the materials available on record, it is seen that it is the
contention of the appellant that at the time of accident, he was aged 45 years
was running A/C Service Center and was doing 2nd Sales Business in the
name and style of 'M/s. Haran Cool Service' and was earning a sum of
Rs.1,000/- per day. To prove the same, the appellant has produced copy of the
Trade License as Ex.P12, which has expired three years prior to the accident,
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C.M.A.No.1972 of 2020
i.e., expired on 31.03.2011. The appellant has not produced any material to
substantiate his claim that he was earning a sum of Rs.1,000/- per day. In the
accident, the appellant suffered injuries and fracture and was referred to
Medical Board. The Medical Board examined the appellant and certified that
appellant suffered 54% disability. The Tribunal considering the disability
certificate assessed by the Medical Board only for sensory loss, hearing loss
and slow in movement to perform the avocation, held that there is no
evidence that appellant has suffered complete incapacity to perform his
avocation already he was doing. Having held so, the Tribunal fixed that
appellant suffered 50% functional disability and applied multiplier method
for awarding compensation towards disability. The appellant has not
examined any Doctor to prove that he suffered functional disability and lost
his earning capacity and he cannot do any work. There is no material to show
that the appellant suffered functional disability and lost his earning capacity.
In the absence of any material, the Tribunal erroneously adopted multiplier
method and granted a sum of Rs.6,30,000/- for disability. In the absence of
any materials, the Tribunal erroneously fixed 50% as functional disability and
awarded compensation towards disability by adopting multiplier method,
which is excessive. In view of the excess amount granted by the Tribunal
towards disability, the appellant is not entitled to any enhancement.
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C.M.A.No.1972 of 2020
11.In the result, this Civil Miscellaneous Appeal is dismissed and the
compensation awarded by the Tribunal at Rs.9,35,267/- is hereby confirmed
together with interest at the rate of 7.5% per annum from the date of petition
till the date of deposit. The 3rd respondent-Insurance Company is directed to
deposit the award amount 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, to the credit of M.C.O.P.No.166 of 2014 on the
file of the Motor Accident Claims Tribunal, District Court, Karaikal. On such
deposit, the appellant is permitted to withdraw the award amount, along with
interest and costs, less the amount if any, already withdrawn by making
necessary applications before the Tribunal. No costs.
06.01.2021
krk
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1972 of 2020
To
1.The District Judge,
Motor Accident Claims Tribunal,
Karaikal.
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1972 of 2020
V.M.VELUMANI, J.
krk
C.M.A.No.1972 of 2020
06.01.2021
https://www.mhc.tn.gov.in/judis/
