A. Appandai Rajan vs M. Kannan
2021 Latest Caselaw 675 Mad

                                                                         C.M.A. No.2557 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 08.01.2021

                                                    CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                              C.M.A.No.2557 of 2019

                   A. Appandai Rajan                                          .. Appellant

                                                       Vs.

                   1.M. Kannan

                   2.The New India Assurance Co. Ltd.,
                     No.45, Moore Street, Chennai 600 001,
                     Now at,
                     “Bombay Mutual Building”, 6th Floor,
                     No.232, N.S.C. Bose Road,
                     Chennai 600 001.                                        .. Respondents


                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                   Vehicles Act, 1988, against the judgment and decree dated 01.10.2018, made

                   in M.C.O.P. No.7901 of 2013, on the file of the Special Sub Judge-I, Small

                   Causes Court, (Motor Accident Claims Tribunal) Chennai.



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https://www.mhc.tn.gov.in/judis/
                                                                            C.M.A. No.2557 of 2019

                                         For Appellant     : Mr.K.A.Ravindran
                                                             for M/s.A.Shanmugaraj

                                         For Respondents : Mr. J.Chandran (For R2)

                                                  JUDGMENT

The matter is heard through "Video Conferencing".

This appeal has been filed for enhancement of compensation granted

by the award dated 01.10.2018, made in M.C.O.P. No.7901 of 2013, on the

file of the Special Sub Judge-I, Small Causes Court, (Motor Accident Claims

Tribunal) Chennai.

2.The appellant-claimant filed M.C.O.P. No.7901 of 2013, on the file

of the Special Sub Judge-I, Small Causes Court, (Motor Accident Claims

Tribunal) Chennai, claiming a sum of Rs.16,00,000/- as compensation for the

injuries sustained by him in the accident that took place on 08.01.2007.

3.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred only due to rash and negligent

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driving by driver of the Lorry belonging to the 1st respondent and directed the

2nd respondent, as insurer of the offending vehicle, to pay a sum of

Rs.5,22,750/- as compensation to the appellant.

4.Not being satisfied with the amounts awarded by the Tribunal in the

award dated 01.10.2018, made in M.C.O.P. No.7901 of 2013, 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 grievous injuries. The Tribunal awarded only

meagre amounts for the injuries suffered by the appellant. The appellant has

taken treatment as in-patient in Lifeline Hospital from 08.01.2007 to

24.01.2007, for a period of 17 days and underwent surgery. P.W.2 Doctor and

the Government Peripheral Hospital, KK Nagar, Chennai examined the

appellant and certified that the appellant suffered 60% disability. The

appellant was a Driver at the time of accident and was earning a sum of

Rs.4,000/- per month as salary and Rs.1,500/- per month as collection Batta.

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The Tribunal erroneously fixed the monthly income of the appellant as

Rs.4,000/-, instead of Rs.5,500/-. The appellant proved the injuries and

disability suffered, by examining P.W.2 Doctor and filed documents. The

Tribunal failed to grant any compensation for loss of earning power

separately. The Tribunal ought to have adopted the multiplier method and

awarded compensation and prayed for enhancement of the compensation.

6.Per contra, the learned counsel appearing for the 2nd respondent-

Insurance Company contended that the appellant failed to prove that he suffered

functional disability and the appellant also failed to prove Ex.P12- salary

certificate by examining author of the same. He has not filed any document with

regard to salary voucher and attendance register. The Tribunal, in the absence of

any evidence, rejected the contention of the appellant that he was earning a sum

of Rs.5,500/- including batta and fixed a sum of Rs.4,000/- per month. The

Tribunal accepted the disability certificate issued by the Government Peripheral

Hospital and P.W.2 Doctor and considering the evidence and documents, held

that the appellant has not suffered any functional disability and appellant has not

proved the same by oral and documentary evidence. The appellant has also not

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proved by oral and documentary evidence that his future earnings are affected.

Hence, the Tribunal rightly granted compensation by adopting percentage

method. The amounts granted by the Tribunal is excessive and 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 he suffered injuries and fracture and he has taken treatment as in-

patient in Lifeline Hospital for a period of 17 days. According to the appellant,

he was working as a Driver and was earning a sum of Rs.4,000/- per month as

salary and Rs.1,500/- per month as collection Batta. The appellant marked the

salary certificate as Ex.P12. He has not examined the author of the document. In

the absence of any materials, the Tribunal fixed a sum of Rs.4,000/- per month

as notional income of the appellant. The accident is of the year 2007.

Considering the date of accident and contention of the learned counsel appearing

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for the appellant, the notional income of the appellant is fixed as Rs.5,500/- per

month, as claimed by the appellant. The appellant has not filed any material to

show that he suffered functional disability. From the discharge summary,

disability certificate and evidence of P.W.2 Doctor, it is seen that nothing is

stated with regard to functional disability or loss of earning capacity as alleged

by the learned counsel for the appellant. In the discharge summary, the appellant

was advised to take some medicines and to take rest for 6 weeks. In the absence

of any material evidence to show that appellant suffered functional disability and

lost income, the appellant is not entitled to compensation towards loss of

earning, by adopting multiplier method. In view of the above materials, the

award of the Tribunal granting compensation by adopting percentage method is

proper and valid and he is not entitled to any enhancement towards disability

and loss of earning power separately. Considering the period of treatment taken

and nature of injuries, the amounts granted by the Tribunal for transportation and

attendant charges are meagre. Hence, the same are enhanced to Rs.7,000/- and

Rs.10,000/- respectively.

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9.Due to the injuries sustained in the accident, the appellant would not

have worked atleast for a period of six months. Thus, the compensation granted

by the Tribunal towards loss of income is modified to Rs.33,000/- (Rs.5,500/-

x 6 months), at the rate of Rs.5,500/- per month for six months. The Tribunal

failed to award any amount towards loss of amenities and damages to clothes.

Hence, a sum of Rs.10,000/- and Rs.1,000/- are awarded towards loss of

amenities and damages to clothes respectively. The amounts 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 1,80,000/- 1,80,000/- Confirmed

2. Pain and suffering 15,000/- 15,000/- Confirmed

3. Extra nourishment 10,000/- 10,000/- Confirmed

4. Transportation 3,000/- 7,000/- Enhanced

5. Damages to clothes - 1,000/- Granted

6. Attendant charges 4,250/- 10,000/- Enhanced

7. Hospital and Medical 2,83,490/- 2,83,490/- Confirmed expenses

8. Loss of earnings 12,000/- 33,000/- Enhanced

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9. Loss of future prospects 15,000/- 15,000/- Confirmed

10. Loss of amenities - 10,000/- Granted Total 5,22,740/- 5,64,490/- Enhanced by Rs.41,750/-

rounded off to rounded off to 5,22,750/- 5,64,500/-

10.In the result, the appeal is partly allowed and the amount awarded

by the Tribunal at Rs.5,22,750/- is enhanced to Rs.5,64,500/- 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.7901 of 2013. 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. No costs.

08.01.2021 gsa

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To

1.The Special Subordinate Judge-I, Small Causes Court, (Motor Accident Claims Tribunal), Chennai.

2.The Section Officer, V.R Section, High Court, Madras.

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V.M.VELUMANI, J.,

gsa

C.M.A.No.2557 of 2019

08.01.2021

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https://www.mhc.tn.gov.in/judis/