Madras High Court
Prakasam vs Shanmugam on 8 January, 2021
C.M.A. No.3239 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.3239 of 2019
Prakasam .. Appellant
Vs.
1.Shanmugam
2.Iffco-Tokio General Insurance Co. Ltd.,
No.138/2, II Floor, LMR Shopping Arcade,
Opp. MGM Theatre, Salem Main Road,
Namakkal. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 28.03.2019, made
in M.C.O.P. No.519 of 2014, on the file of the Sub Court, (Motor Accident
Claims Tribunal) Tiruchengode.
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C.M.A. No.3239 of 2019
For Appellant : Mr.T.S.Arthanareeswaran
for M/s. C.Paraneedharan
For Respondents : No appearance (For R1)
Mrs.K.Saraswathi (For R2)
for Mr.C.R.Krishnamoorthy
JUDGMENT
The matter is heard through "Video Conferencing".
This appeal has been filed for enhancement of compensation granted
by the award dated 28.03.2019, made in M.C.O.P. No.519 of 2014, on the file
of the Sub Court, (Motor Accident Claims Tribunal) Tiruchengode.
2.The appellant-claimant filed M.C.O.P. No.519 of 2014, on the file of
the Sub Court, (Motor Accident Claims Tribunal) Tiruchengode, claiming a
sum of Rs.15,00,000/- as compensation for the injuries sustained by him in
the accident that took place on 30.12.2013.
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C.M.A. No.3239 of 2019
3.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
riding by the 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.1,24,253/- as compensation to the appellant at the first instance and
recover the same from the 1st respondent.
4.Not being satisfied with the amounts awarded by the Tribunal in the
award dated 28.03.2019, made in M.C.O.P. No.519 of 2014, 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 head injury and fracture at left clavicle. He
has taken treatment as in-patient at Krishna Hospital, Tiruchengode, from
31.12.2013 to 22.01.2014, for a period of 23 days. He underwent surgeries
and plates and screws were fixed. The Medical Board examined the appellant
and certified that the appellant suffered 5% disability. The Tribunal has
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C.M.A. No.3239 of 2019
awarded a meagre sum of Rs.15,000/- towards disability at the rate of
Rs.3,000/- per percentage, instead of adopting multiplier method. The
Tribunal ought to have awarded compensation towards loss of earning
capacity. At the time of accident, the appellant was working as a Mason and
was earning a sum of Rs.10,000/- per month. The Tribunal failed to award
any amount towards loss of income during treatment period, attendant
charges, loss of amenities and transportation to the Hospital. The amounts
awarded by the Tribunal under other heads 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 report of Medical Board marked as Ex.P7, in the absence of any
evidence to prove that the appellant suffered functional disability, rightly
adopted percentage method and granted compensation towards disability, which
is in order. The total compensation awarded by the Tribunal is not meagre. The
appellant has not made out any case for enhancement of the compensation and
prayed for dismissal of the appeal.
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C.M.A. No.3239 of 2019
7.Heard the 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 he suffered head injuries and fracture. The Medical
Board, examined the appellant and certified that the appellant suffered 5%
disability. To prove the same, the appellant has marked the disability certificate
as Ex.P7. The appellant has not filed any material to show that he suffered
functional disability. In the absence of any material evidence to show that the
appellant suffered functional disability and lost his earning capacity, 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. For the injuries sustained in the accident, the appellant has taken
treatment as in-patient at Krishna Hospital, Tiruchengode, from 31.12.2013 to
22.01.2014, for a period of 23 days. The Tribunal failed to award any amount
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C.M.A. No.3239 of 2019
towards attendant charges, loss of amenities and transportation to Hospital.
Considering the nature of injuries and period of treatment taken, a sum of
Rs.20,000/-, Rs.25,000/- and Rs.10,000/- are granted towards loss of
amenities, attendant charges and transportation to Hospital respectively. The
Tribunal has awarded a meagre sum of Rs.10,000/- towards extra
nourishment. Considering the nature of injuries suffered by the appellant, the
same is enhanced to Rs.25,000/-. The Tribunal failed to award any amount
towards damages to clothes. Hence, a sum of Rs.2,000/- is granted towards
damages to clothes.
9.It is the contention of the appellant that at the time of accident, he was
working as a Mason and was earning a sum of Rs.30,000/- per month. He failed
to prove the same. The accident is of the year 2013. In the absence of any
material evidence to prove the avocation and income, a sum of Rs.10,000/- per
month is fixed as the notional income. Due to the injuries suffered in the
accident, the appellant would not have worked atleast for a period of two
months. Hence, a sum of Rs.20,000/- (Rs.10,000/- x 2 months) is granted
towards loss of income, at the rate of Rs.10,000/- per month for two months. The
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C.M.A. No.3239 of 2019
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. Permanent Disability 15,000/- 15,000/- Confirmed
2. Medical expenses 84,253/- 84,253/- Confirmed
3. Pain and sufferings and 15,000/- 15,000/- Confirmed
mental agony
4. Extra nourishment 10,000/- 25,000/- Enhanced
5. Attendant charges - 25,000/- Granted
6. Loss of amenities - 20,000/- Granted
7. Loss of income - 20,000/- Granted
8. Transportation - 10,000/- Granted
9. Damage to clothes - 2,000/- Granted
Total 1,24,253/- 2,16,253/- Enhanced by
Rs.92,000/-
10.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.1,24,253/- is enhanced to Rs.2,16,253/- 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
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C.M.A. No.3239 of 2019
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.519 of 2014, at the first instance and
recover the same from the 1st respondent. 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
To
1.The Subordinate Judge,
(Motor Accident Claims Tribunal),
Tiruchengode.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.3239 of 2019
V.M.VELUMANI, J.,
gsa
C.M.A.No.3239 of 2019
08.01.2021
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